221.2Duties/Conduct of Trial Judge
Key Concepts
- The trial judge has inherent authority, specific statutory authorizations, and contempt powers to keep order and control in the courtroom.
- More drastic measures, such as closing the courtroom or restraining witnesses, are also within the court’s discretion, but may require findings on the record to support the action taken.
Regulation of Trial Proceedings
It is the duty of the trial judge to regulate the conduct and the course of business during trial. State v. Spaulding, 288 N.C. 397 (1975), vacated in part on other grounds, 428 U.S. 904 (1976). “Generally, in the absence of controlling statutory provisions or established rules, all matters relating to the orderly conduct of the trial or which involve the proper administration of justice in the court, are within his [or her] discretion.” State v. Rhodes, 290 N.C. 16, 23 (1976). Judges may take whatever legitimate steps are necessary to maintain proper decorum and an appropriate atmosphere in the courtroom during a trial. State v. Dickerson, 9 N.C. App. 387 (1970).
Control of Jury Selection
The procedure for jury selection is governed by G.S. 15A-1211 et seq., which is discussed in more detail in the related entry on Jury Selection – Voir Dire and Process. Within that statutory framework, the trial judge has the power to regulate and supervise jury selection so that the defendant and the state receive the benefit of a trial by a fair and impartial jury. See State v. Brady, 299 N.C. 547 (1980). Regulation of the manner and extent of the questions of a potential juror regarding his or her fitness rests in the trial judge’s discretion, and that decision will not be disturbed on appeal in the absence of a showing of an abuse of discretion and prejudice to the defendant. State v. Johnston, 344 N.C. 596 (1996); State v. Hunt, 37 N.C. App. 315 (1978).
Control of Witness Examinations
Although bound by the rules of evidence, the trial judge has the power and duty to control the direct examination and cross-examination of the witnesses both for the purpose of conserving the time of the court and protecting the witness from prolonged, needless, or abusive examination. See State v. Fleming, 350 N.C. 109 (1999); State v. Arnold, 284 N.C. 41 (1973). He or she may ban unduly repetitious and argumentative questions as well as inquiry into matters of tenuous relevance. State v. Satterfield, 300 N.C. 621 (1980).
Control of Witnesses’ and Spectators’ Conduct
A trial judge has the power and duty to control the conduct of witnesses and spectators in the courtroom. See State v. Maness, 363 N.C. 261, 282 (2009) (no abuse of discretion by trial judge in denying defendant’s motion for mistrial based on the “troubling” conduct of three uniformed law enforcement officers who approached the jury box and stood very close to jurors when autopsy photographs of the victim, a slain officer, were passed to the jury); State v. Braxton, 344 N.C. 702 (1996) (trial judge properly denied motion for mistrial based on the spectators wearing buttons allegedly depicting a victim where defendant failed to show sufficient facts, including whether the jury even noticed the buttons); State v. Higginbottom, 312 N.C. 760 (1985) (judge did not improperly express opinion when, outside the presence of the jury, he admonished defendant’s witnesses and warned them that their actions could result in their being jailed). Further information about a judge’s authority to control persons present in the courtroom is provided later in this entry.
Closing the Courtroom
The defendant generally has both a state (Article I, section 18) and federal (Sixth Amendment) constitutional right to an open trial, including the jury selection phase. See Presley v. Georgia, 558 U.S. 209 (2010); In re Edens, 290 N.C. 299, 306 (1976). However, “although the right of access to criminal trials is of constitutional stature, it is not absolute,” Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606 (1982), and a trial judge may, “in the interest of the fair administration of justice, impose reasonable limitations on access to a trial,” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 581 n.18 (1980). Under certain circumstances, a “reasonable limitation” may include closure of the courtroom to the public. See Waller v. Georgia, 467 U.S. 39 (1984). Reasons justifying closure include threats to participants and observers, and attempts by the defendant to escape. See State v. Murray, 154 N.C. App. 631 (2002).
Before closing a courtroom to the public in a criminal case, the trial judge must:
- Determine whether the party seeking closure has advanced an overriding interest that is likely to be prejudiced;
- Order closure no broader than necessary to protect that interest;
- Consider reasonable alternatives to closing the proceeding; and
- Make findings adequate to support the closure.
State v. Jenkins, 115 N.C. App. 520, 525 (1994) (citing Waller v. Georgia, 467 U.S. 39 (1984). The trial judge should take care not to unduly restrict access to the courtroom. State v. Moctezuma, 141 N.C. App. 90 (2000) (new trial awarded where trial judge made no findings of fact before closing the courtroom not only to the general public, but to defendant and defense counsel as well). The trial judge may order the courtroom closed for the entire trial or just for a portion of the proceedings. See, e.g., State v. Clark, 324 N.C. 146 (1989) (no impropriety found where trial judge limited public egress from the courtroom during closing arguments so as not to distract the jury).
Finally, G.S. 15-166 expressly allows the court to close the courtroom to all persons except officers of the court, the defendant, and those engaged in the trial of the case during testimony by the victim in rape and sex offense cases. This statutory authorization remains subject to the Constitutional considerations discussed above, so the judge should still consider the factors which warrant closure of the courtroom, and make appropriate findings of fact to support the order. See State v. Rollins, 221 N.C. App. 572 (2012); State v. Comeaux, 224 N.C. App. 595 (2012); see also State v. Register, 206 N.C. App. 629 (2010) (no abuse of discretion by trial judge in child sex offense case in excluding, pursuant to G.S. 15A-166 and G.S. 15A-1034, all spectators from the courtroom during the alleged victim’s testimony except for the alleged victim’s mother and stepfather, an investigator for each side, and a high school class that was observing court proceedings)
Control Inside the Courtroom
Limiting Access to the Court
Under G.S. 15A-1034(a), a judge “may impose reasonable limitations on access to the courtroom when necessary to ensure the orderliness of courtroom proceedings or the safety of persons present.” See State v. Lemons, 348 N.C. 335 (1998), remanded and reconsidered on other grounds, 352 N.C. 87 (2000) (sign placed on courtroom door instructing members of the public not to enter unless they had business in the court did not violate defendant’s right to open courtroom); State v. Clark, 324 N.C. 146 (1989) (permissible for judge to inform spectators they would not be allowed to leave once closing arguments started, to avoid causing distractions for the jury).
Search of Persons in Court
G.S. 15A-1034(b) authorizes a trial judge to “order that all persons entering or any person present and choosing to remain in the courtroom be searched for weapons or devices that could be used to disrupt or impede the proceedings.” The judge may also “require that belongings carried by persons entering the courtroom be inspected.” If the judge orders a search pursuant to this subsection, he or she must enter it on the record. Courthouse searches generally have been upheld against Fourth Amendment challenges. See, e.g., 68 Am. Jur. 2d Searches and Seizures § 53 (May 2018 update) (“The Fourth Amendment protection against unreasonable searches and seizures is inapplicable to a courtroom in the exercise of the trial judge's authority and duty to preserve security and order.”).
Restricting Access to Other Areas
In especially unusual circumstances, the trial judge may restrict activities not only in the courtroom itself, but also in areas around the courthouse. See, e.g., State v. Grant, 19 N.C. App. 401, 414 (1973) (trial judge’s prohibition of picketing, parading, and congregating in and around courthouse and requirement that spectators submit to a search for weapons before entering courtroom were proper where the case was “of a nature which would attract public attention” and “[i]t was necessary for the court to maintain discipline and decorum in the courtroom and its environs”).
Removal of Disruptive Witnesses or Spectators
G.S. 15A-1033 authorizes a trial judge, in his or her discretion, to order any person other than a defendant removed from a courtroom when his or her actions disrupt the conduct of the trial. See also State v. Dawson, 281 N.C. 645, 656 (1972) (no prejudicial error by trial judge in ejecting two disruptive spectators from the courtroom “until they decided to behave themselves” because the action was necessary in order for the trial to continue “under circumstances of judicial decorum and fairness to all concerned”); State v. Dean, 196 N.C. App. 180 (2009) (no abuse of discretion by trial judge in removing four spectators from the courtroom during defendant’s trial for an allegedly gang-related murder where one spectator was a co-defendant, jurors had expressed concerns for their safety as had jurors in defendant’s first trial, and the spectators had violated pretrial orders concerning decorum in the courtroom). The judge is not required to make findings of fact to support his or her removal of disruptive spectators from the courtroom. Dean, 196 N.C. App. at 189.
Restraint of Disruptive Witnesses or Spectators
G.S. 15A-1031 grants the trial judge the authority to restrain witnesses. For example, this issue may arise when a co-defendant in custody is called as a witness. The judge may order restraint if he or she finds it to be reasonably necessary to maintain order, prevent the defendant’s escape, or provide for the safety of other persons. G.S. 15A-1031. If the court elects to restrain a witness, the judge must: (i) enter into the record, outside the presence of the jury, the reasons for doing so; (ii) give the restrained person an opportunity to object; and (iii) unless the defense objects, instruct the jury the restraints are not to be considered in weighing evidence or determining guilt. Id. Whether to restrain a witness is a discretionary decision and will not be disturbed absent an abuse of discretion. See State v. Abraham, 338 N.C. 315 (1994) (no abuse of discretion or expression of opinion on credibility shown where trial judge permitted incarcerated prosecuting witness to appear without shackles but required three incarcerated defense witnesses to be restrained while testifying). Appellate review is waived if counsel fails to object with specificity to the trial judge’s order of restraint and request a limiting instruction. See State v. Tolley, 290 N.C. 349 (1976); State v. Thomas, 134 N.C. App. 560 (1999); State v. Paige, 316 N.C. 630 (1986).
(For more information regarding restraint or removal of the defendant during the trial, see the related entry on Defendant’s Right to Be Present.)
Jury seeing a witness in restraints
The prosecutor should decide in advance how he or she would like the court to handle any in-custody witnesses who will be called up to the witness stand wearing restraints (handcuffs or leg shackles), such as a testifying co-conspirator who is in jail awaiting sentencing. Upon request, the court will usually agree to take a brief recess and excuse the jury, bring the witness up to the stand in the jury’s absence, and then have the jury return to see the witness sworn in and testify. (Leg shackles will likely be hidden from view while the witness is up on the witness stand, but handcuffs will probably remain visible.) At the conclusion of the testimony, the jury can be excused again before the witness steps down.
Under G.S. 15A-1031(3), absent an objection, the judge is required to give a limiting instruction about disregarding restraints when weighing evidence or determining guilt. If the prosecutor thinks that such an instruction would only draw unwelcome attention to restraints which the jurors might not otherwise notice, and would prefer that the court not give the instruction, then the prosecutor must object per the statute.
Alternatively, some prosecutors may want the jury to see the restraints, to highlight the fact that the defendant’s accomplices are being held responsible for their actions. In that case there is no need to request a recess, but the prosecutor should still let the judge know in advance that the next witness will be appearing in restraints.
Contempt Power
In addition to the use of the statutory remedies set out above, a presiding judge is also authorized by G.S. 15A-1035 to maintain courtroom order through the use of his or her contempt powers, as provided in G.S. Ch. 5A, and through the use of the other “inherent powers” of the court. For more information, see the related entry on Contempt.
