Gag Order

Author:Jeffrey Lehman, Shirelle Phelps
 
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A court order to gag or bind an unruly defendant or remove her or him from the courtroom in order to prevent further interruptions in a trial. In a trial with a great deal of notoriety, a court order directed to attorneys and witnesses not to discuss the case with the media?such order being felt necessary to assure the defendant of a fair trial. A court order, directed to the media, not to report certain aspects of a crime or criminal investigation prior to trial.

Unruly defendants who disrupt trials are very rarely literally gagged in modern courts. However, the U.S. Supreme Court has upheld the constitutionality of the practice in cases where a defendant is particularly disruptive. In Illinois v. Allen, 397 U.S. 337, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970), the Court affirmed that gagging or binding the defendant, or removing him or her from the courtroom, does not violate the Confrontation Clause of the SIXTH AMENDMENT to the U.S. Constitution, which holds, "In all criminal prosecutions, the accused shall enjoy the right ? to be confronted with the witnesses against him." According to Associate Justice HUGO L. BLACK, who wrote the Court's opinion,

[A] defendant can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom. Once lost, the right to be present can, of course, be reclaimed as soon as the defendant is willing to conduct himself consistently with the decorum and respect inherent in the concept of courts and judicial proceedings.

Of the three methods that the Court found available to a judge when faced with a disruptive defendant?gag and shackles, citation for CONTEMPT of court, and physical removal?the Court held that a gag and shackles should be considered the option of last resort. According to the Court,

Not only is it possible that the sight of shackles and gags might have a significant effect on the jury's feelings about the defendant, but the use of this technique is itself something of an affront to the very dignity and decorum of judicial proceedings that the judge is seeking to uphold.

One of the few modern instances of literal gagging occurred in the 1968 CHICAGO EIGHT trial (sometimes called the...

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