Goldmann, Sullivan and Labrecque. The opinion of the court was delivered by Goldmann, S.j.a.d.
[86 NJSuper Page 161] Defendant, a State Prison inmate, was indicted, tried and found guilty by a jury for atrocious assault and battery upon a prison guard. The single question posed on this appeal is that defendant's fundamental right
to a fair trial was violated when he was compelled to appear before the jury with his feet and hands shackled. The matter is one of first impression in New Jersey.
After the State had rested, defendant took the stand in his own behalf, shackled hand and foot. His counsel objected to defendant's being chained while in the witness box. In overruling the objection the trial judge said:
"I will ask the jury, of course, to disregard the fact that he is [shackled]. The request was made to me on the basis that it's routine custodial supervision, according to routine required by the State Prison, and I ask no questions. If that's it, that's it. There is no reflection on the witness intended. It has absolutely nothing to do with what we are inquiring into here today and I will ask the jury to please to disregard the fact that this type of custodial supervision is being executed at this time. That's as much as I can say on the subject.
I would prefer that this not be necessary but they asked for it and I had to do it. You may proceed."
A defendant in a criminal trial has, from the earliest days of the common law, had the right to appear in court free of restraint. Hale, who became chief justice in 1671, said that "The prisoner, tho under an indictment of the highest crime, must be brought to the bar without irons, and all manner of shackles or bonds * * * unless there be a danger of escape * * *." 2 Hale's Pleas of the Crown, 219 (1678). The same injunction appears in 4 Blackstone's Commentaries, c. 25, p. 317 (1769). Hawkins, in the second volume of his Pleas of the Crown, c. 28, § 1, p. 308 (1716-21), said that a defendant "ought not be brought to the Bar in a contumelious Manner; as with his Hands tied together, or any other Mark of Ignominy and Reproach; nor even with Fetters on his Feet, unless there be some Danger of a Rescous [rescue] or Escape," citing such ancient authorities as Brackton and Fleta.
Such has been the rule in this country from the time the matter was first considered. See, e.g., People v. Harrington, 42 Cal. 165, 10 Am. Rep. 296 (Sup. Ct. 1871); State v. Kring, 1 Mo. App. Rep. 438 (Ct. App. 1876), affirmed 64 Mo.
591 (Sup. Ct. 1877). And see 23 C.J.S., Criminal Law, § 977, p. 904 et seq.; 14 Am. Jur., Criminal Law, § 132, p. 855. It was said in Way v. United States, 285 F.2d 253, 254 (10 Cir. 1960), that under ordinary circumstances a defendant's freedom from handcuffs, shackles or manacles is an important component of a fair and impartial trial, and that such procedure should not be permitted except to prevent his escape or his injuring others, and to maintain a quiet and peaceable trial. Cf. Odell v. Hudspeth, 189 F.2d 300, 302-303 (10 Cir. 1951), certiorari denied 342 U.S. 873, 72 S. Ct. 116, 96 L. Ed. 656 (1951).
Defendant in State v. Kring, above, was tried and convicted of murder in the first degree. There, as here, error was claimed in the trial court's overruling of defense counsel's motion to have the accused's handcuffs removed, the judge giving as his reason that defendant had assaulted the husband of the deceased at the first trial of the cause. The Court of Appeals reversed, observing that there was no ground to suppose that the earlier assault would be renewed; but that aside, the assault was insufficient reason for compelling the prisoner to stand trial for his life with gyves upon his wrists and his hands bound together. There was no contention of danger of escape, but if there were, other means could have been used to prevent it. The court suggested the presence of guards or placing the accused within an enclosed space within the bar of the court, as was the English custom. On review, the Supreme Court of Missouri found the law to be very clear that without some good reason authorizing the trial court to depart from the general practice in England and in this country, the shackles should be removed when the prisoner was brought before the jury for trial.
"We have no doubt of the power of the criminal court, at the commencement, or during the progress of a trial, to make such orders as may be necessary to secure a quiet and safe one, but the facts stated by the court in this case, as shown by the record, that the prisoner had assaulted a person in court, about three months before the term at which he was tried, would hardly ...