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THE RECORD OF THE GRAND JURY PROCEEDINGS DID NOT EXPLAIN OR JUSTIFY THE SHACKLING OF DEFENDANT’S HANDS DURING HIS TESTIMONY; EVEN IF HIS HANDS WERE UNDER THE TABLE, THE INABILITY TO USE HIS HANDS DURING HIS TESTIMONY WAS PREJUDICIAL; CONVICTION REVERSED (THIRD DEPT). ​

The Third Department, reversing the conviction by guilty plea and dismissing the indictment, in a full-fledged opinion by Justice Garry, determined the record did not explain or otherwise support the shackling of defendant’s hands when he testified before the grand jury:

An actual justification for the use of physical restraints, specific to the defendant, is … necessary when a defendant testifies before a grand jury; in such context, the People are required to articulate a reasonable basis on the record for their use … . That threshold showing must be made on the record at the commencement of the proceeding, outside the presence of the grand jury…. .

… Review of the confidential grand jury minutes reveals that there was no relevant information offered to support the use of restraints. Shackling incarcerated defendants before the factfinder without revealing an adequate basis for doing so cannot be countenanced. …  Although the People assert that the hand shackles were hidden by the table at which defendant sat, this is disputed and was similarly unaddressed upon the record of proceedings.  It bears noting that it is customary for many people to use hand gestures in the course of describing events; for this reason, the inability to show one’s hands may connote or communicate that one is not trustworthy. Put another way, hiding one’s hands may be interpreted as withholding, may communicate in body language that one has “something to hide.” … .

… [T]here were no cautionary instructions addressing the shackles … , and the evidence presented was not so overwhelming as to eliminate the potential for prejudice … . People v Cain, 2022 NY Slip Op 05239, Third Dept 9-22-22

Practice Point: The record of grand jury proceedings must explain and justify the shackling of defendant’s hands during his testimony. Here the record did not address the shackling. Defendant’s conviction was reversed.

 

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