222.2Defendant's Rights in the Courtroom

Appear in Civilian Clothing, Free of Restraints
Last Updated: 12/01/23

Key Concepts

  • Defendant has a right to appear before the jury in ordinary civilian dress, and cannot be compelled to appear in prison garb, but this right can be waived.
  • Defendant also has a right to appear before the jury without restraints, but the court may order restraints if it makes findings that they are necessary and justified.

Right to Appear in Civilian Clothes

The defendant has a right to appear in civilian clothing (instead of a prison or jail uniform) to avoid the risk that the jury’s judgment will be tainted and the defendant’s right to a presumption of innocence will be compromised. See Estelle v. Williams, 425 U.S. 501 (1976) (“the State cannot, consistently with the Fourteenth Amendment, compel an accused to stand trial before a jury while dressed in identifiable prison clothes”). If the defendant is denied this right, the state will have the burden of showing on appeal that it was harmless error. See, e.g., State v. Simpson, 202 N.C. App. 586 (2010) (unpublished) (finding sufficient evidence that defendant’s white pants, white T-shirt, and white tennis shoes were prison garb but holding that violation was not prejudicial and did not require reversal where defendant was on trial for assaulting a prison guard at the unit where he was housed and jury therefore already knew that defendant was incarcerated).

There is also a statutory prohibition against any jailer or other officer forcing the defendant to appear for trial in any prison clothing besides ordinary civilian dress, or with a shaved or clipped haircut. See G.S. 15-176. But while a defendant may not be required to wear the clothing of a prisoner or convict, G.S. 15-176 does not prohibit requiring the defendant to wear an unobtrusive form of identification, such as a wristband. See State v. Johnson, 128 N.C. App. 361 (1998). It is doubtful that these rules apply to bench trials or other non-jury proceedings, including appearances in district court, since the holding in Estelle applied only to trials “before a jury,” Estelle, 425 U.S. at 512, and G.S. 15-176 applies only to trials in superior court.

Practice Pointer

Civilian clothes for in-custody witnesses?
The first portion of G.S. 15-176 provides that it is unlawful for a sheriff, jailer, or other officer to “require any person imprisoned in jail to appear in any court for trial” while dressed in prison garb. This broad language likely applies to in-custody witnesses for the state or defense, as well as the defendant. See State v. Knight, 87 N.C. App. 125 (1987) (not citing to statute, but holding that jailer improperly brought a defense witness into court in prison garb before allowing him to change clothes, although “[t]he brief appearance of a defense witness in jail clothing was not, in our view, such a serious impropriety as to prevent the defendant from receiving a fair trial”). Therefore, if the state intends to call an in-custody witness to testify, the prosecutor should make arrangements ahead of time for suitable clothing to be brought to court. The bailiffs will usually allow the witness to change clothes in the holding cell before testifying.
Some prosecutors prefer to have in-custody witnesses (particularly cooperating co-defendants) appear and testify in prison garb, since it helps demonstrate to the jury that the witness is being held accountable for his role in the offense. Having a witness voluntarily appear in prison garb is not prohibited under the statute (see discussion below), but prosecutors should make sure the witness understands that the state is only requesting that the witness appear in prison garb, not requiring that he or she do so.

While it is unlawful for an official to require a defendant to appear for trial in prison garb, it is not inherently unlawful for a defendant to so appear. Where a defendant is given the opportunity to obtain alternate clothing but declines to do so, he or she may stand trial in a prison uniform. See State v. Berry, 51 N.C. App. 97 (1981); State v. Westry, 15 N.C. App. 1 (1972). Additionally, absent an objection by the defendant, the trial judge is not required to specifically inquire as to whether the defendant is deliberately going to trial in prison clothing. Estelle, 425 U.S. at 512-13. If the defendant fails to object to appearing before the jury in prison garb, the issue is waived on appeal. See Estelle, 425 U.S. at 512-13. Furthermore, the record on appeal must demonstrate that the defendant’s clothing was, in fact, prison garb. See State v. Berry, 51 N.C. App. 97 (1981) (insufficient showing that defendant appeared in prison garb where record only showed that defendant appeared in green pants, white socks, tennis shoes, and a white T-shirt).

Right to Appear Without Restraints

1. Considerations and Factors

The Fifth and Fourteenth Amendments to the United States Constitution prohibit the use of physical restraints visible to the jury unless the trial judge has determined, in the exercise of his or her discretion, that the restraints are justified by an essential state interest specific to a particular trial. Deck v. Missouri, 544 U.S. 622 (2005). The rationale is that routine shackling of defendants would undermine the presumption of innocence and the related fairness of the fact-finding process, interfere with the defendant’s ability to communicate with his or her lawyer and to participate in his or her own defense, and be affront to the dignity and decorum of judicial proceedings. Id. Examples of essential state interests that justify shackling include physical security, escape prevention, and courtroom decorum. See State v. Jackson, 235 N.C. App. 384 (2014) (shackles justified based on defendant’s prior escape attempt, anger issues, verbal threats, and serious nature of charges and penalties). G.S. 7B-2402.1 sets comparable requirements for the restraint of a juvenile in a delinquency hearing, and provides that “the judge may subject a juvenile to physical restraint in the courtroom only when the judge finds the restraint to be reasonably necessary to maintain order, prevent the juvenile’s escape, or provide for the safety of the courtroom.”

The  Supreme Court of North Carolina has also held that a criminal defendant is entitled under the Due Process Clause of the federal constitution and Article I § 19 of the state constitution to be tried “free from all bonds or shackles except in extraordinary instances.” See State v. Tolley, 290 N.C. 349, 365 (1976). Thus, “where a court, without adequate justification, orders the defendant to wear shackles that will be seen by the jury, the defendant need not demonstrate actual prejudice to make out a due process violation. The State must prove beyond a reasonable doubt that the [shackling] error complained of did not contribute to the verdict obtained”. See Deck, 544 U.S. at 635 (internal citation omitted).

The court in Tolley set out circumstances appropriate for the trial judge to consider in determining whether restraints are necessary. These may include, but are not limited to, the following:

  1. The seriousness of the charges;
  2. The defendant’s temperament and character;
  3. The defendant’s age and physical attributes;
  4. The defendant’s past record;
  5. Any past escapes or attempted escapes, and evidence of a present plan to escape;
  6. Any threats to harm others or cause a disturbance;
  7. Any self-destructive tendencies;
  8. The risk of mob violence or of attempted revenge by others;
  9. The possibility of rescue by other offenders still at large;
  10. The size and mood of the audience;
  11. The nature and physical security of the courtroom; and
  12. The adequacy and availability of alternative remedies.

Id. at 368–69 (“The propriety of physical restraints depends upon the particular facts of each case, and the test on appeal is whether, under all of the circumstances, the trial court abused its discretion.”).
The appropriateness of the particular type of restraints also appears to depend on the circumstances of each case. See State v. Forrest, 168 N.C. App. 614 (2005) (no abuse of discretion by trial judge in requiring defendant to appear in court strapped to his chair, handcuffed and wearing a white mask covering his mouth and nose, where defendant was on trial for brutally attacking his former attorney and biting a deputy during a previous trial where it took five men to subdue him); but see State v. Jackson, 162 N.C. App. 695 (2004) (cautioning that even “concealed” shackles risk prejudice, so their use must be supported by “particular reasons” which are “substantiated in the record”).

Practice Pointer

Witnesses in restraints?
For more information about witnesses testifying while wearing restraints, see the related entry regarding Duties of the Judge: Control of the Courtroom and Witnesses

2. Procedure and Findings

G.S. 15A-1031 provides that a defendant may be physically restrained during his or her trial “when the judge finds the restraint to be reasonably necessary to maintain order, prevent the defendant’s escape, or provide for the safety of persons.” If the trial judge determines that a defendant should be restrained, he or she must:

  1. Enter in the record out of the presence of the jury and in the presence of the person to be restrained and his or her counsel, if any, the reasons for the restraint;
  2. Give the restrained person an opportunity to object; and
  3. Unless the defendant or his or her attorney objects, instruct the jurors that the restraint is not to be considered in weighing evidence or determining the issue of guilt.

If the defendant objects to the stated reasons for the restraint, the judge must conduct a hearing and make findings of fact. Id. The judge may base his or her findings supporting the decision to use restraints on information, if reliable, that would not be admissible at trial. State v. Paige, 316 N.C. 630 (1986) (permissible to consider hearsay testimony from deputy that defendants had attempted to escape the week before trial). The judge must make a “meaningful record” evidencing the basis of his or her discretion and “provide the rationale for that discretion, via some finding substantiated in the record.” State v. Jackson, 162 N.C. App. 695, 701 (2004).

Appellate review is waived if the defense fails to object to the trial judge’s order of restraint. See State v. Paige, 316 N.C. 630 (1986) (holding that the defendant’s failure to object to the trial court’s lack of instructions to the jury that restraints could not be considered in weighing evidence or determining guilt waived the right to review the lack of instructions); State v. Tolley, 290 N.C. 349 (1976) (holding that the defendant waived the right to appeal the lack of instructions concerning shackles and to shackling itself by failing to object). Additionally, to preserve the right to appellate review, the record must show that the defendant was, in fact, physically restrained. See State v. Valentine, 200 N.C. App. 436 (2009) (unpublished) (overruling assignment of error because defendant failed to demonstrate that he was in fact shackled at trial). 

Portions of this entry were excerpted from the 2013 North Carolina Defender Manual, Volume 2, Chapter 21.