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Gag Order

GAG ORDER

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 Chicago Seven trial because one defendant was removed). In that trial, federal judge Julius J. Hoffman ordered black panthers leader bobby seale bound and gagged after Seale and Hoffman engaged in vociferous argument during the trial. Seale still managed to disrupt the proceedings. He was then removed from the trial and tried separately.

Courts may attempt to control prejudicial publicity by restricting the information that trial participants can give to the press both before and during a trial. This remains the type of gag order most frequently used by courts.

Another type of gag order was for a while used by courts to restrict the press from reporting certain facts regarding a trial. This gag order became more common after the Supreme Court's 1966 decision in Sheppard v. Maxwell, 384 U.S. 333, 86 S. Ct. 1507, 16 L. Ed. 2d 600, in which it reversed a criminal conviction on the grounds that pretrial publicity had unfairly prejudiced the jury against the defendant and denied him his Sixth Amendment right to a fair trial. However, in a 1976 decision, Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 96 S. Ct. 2791, 49 L. Ed. 2d 683, the Court held that pretrial gag orders on the press are unconstitutional. It ruled that such orders represent an unconstitutional prior restraint and violate the first amendment, which guarantees the freedom of the press.

further readings

"Challenges to Gag Orders End in Mixed Results." 2000. News Media & the Law 24 (spring): 3–5.

Minnefor, Eileen A. 1995. "Looking for Fair Trials in the Information Age: The Need for More Stringent Gag Orders against Trial Participants." University of San Francisco Law Review 30 (fall).

Weiss, Eric A., and Debra L. Slifkin. 1999. "Enforceability of Rule 26(c) Confidentiality Riders and Agreements." Federation of Insurance & Corporate Counsel Quarterly 49 (winter): 115–36.

cross-references

Sheppard, Samuel H.

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