TITLE SIX — SUPPLEMENTARY PROCEEDINGS; SPECIAL PROCEEDINGS; SUPPLEMENTARY RULES
Rule 45. Removal of the Disruptive Defendant
Removal of Defendant. Upon the direction of the trial judge, a defendant may be removed from the courtroom during his trial when his conduct has become so disruptive that the trial cannot proceed in an orderly manner. Shackling may be employed if the trial judge has found such restraint reasonably necessary to maintain order. If the trial judge orders such restraint, he shall enter into the record of the case the reasons therefor. Whenever physical restraint of a defendant or witness occurs in the presence of the jury trying the case, or whenever the defendant is removed, the judge, at the request of the defendant, shall instruct the jury that such restraint or removal is not to be considered in assessing the proof and determining guilt.
Defendant’s Rights After Removal. A defendant once removed shall be required to be present in the court building while the trial is in progress. At the time of his removal he shall be advised that he has the right to be returned to the courtroom upon his request and assurances of good behavior. Notwithstanding the failure of a defendant to request to be returned to the courtroom, he shall be returned to the courtroom at appropriate intervals in the absence of the jury, and shall be advised in open court that he will be permitted to remain upon the giving of assurances of good behavior.
Warning. Before removing a defendant the judge shall warn the defendant on the record that the conduct is disruptive and that its continuation will result in removal. A warning is not required where the conduct is violent or where a warning would be futile, in which case the judge shall state the reason on the record.
Alternatives. Before ordering removal the judge shall consider, and shall state on the record the consideration of, whether a recess, an admonition, a citation for contempt under Rule 43, the exclusion of spectators, or the temporary muting of the defendant in the proceeding communications would suffice to restore order.
Findings. An order of removal shall be entered upon the docket and shall recite the conduct, the warning given or the reason it was dispensed with, the alternatives considered, and the finding that the trial cannot proceed in an orderly manner while the defendant remains.
Removal from the Proceeding Communications. Where the proceeding is conducted in the proceeding communications, removal is effected by excluding the defendant from participation in that channel. The court shall, so far as the systems permit, preserve to the defendant the means of contemporaneously observing the proceeding, and shall in every case:
Require counsel for the defendant to remain present throughout;
Recess at reasonable intervals so that counsel may confer with the defendant; and
Cause the record of the proceeding communications for the period of the removal to be made available to the defendant and to counsel.
Relation to 6 R. Stat. § 131.501. Disruptive conduct warranting removal under this rule is a forfeiture of presence by conduct within 6 R. Stat. § 131.501(b)(2)(B) and Rule 18(b)(2)(B).
No Authorization Required. A defendant removed under this rule and afforded the protections of subdivisions (2) and (6) is not tried in absentia within the meaning of Rule 2(2), and the court shall not proceed under Rule 18.1, Rule 18.2, or Rule 18.3 by reason of the removal alone. No criminal default shall be entered against a defendant who is removed while present.
Rights Preserved. Removal under this rule is not a waiver of the right to be present, of the right to appeal, or of the right to seek post-conviction relief. 6 R. Stat. § 131.501(g).
Where the Protections Cannot Be Afforded. Where the protections of subdivisions (2) and (6) cannot be afforded, the court shall recess or shall declare a mistrial under Rule 27 rather than proceed.
Departure Distinguished. A defendant who leaves the proceeding rather than being removed, or who having been removed departs the court building or the proceeding communications so that the protections of subdivisions (2) and (6) can no longer be afforded, is absent within Rule 18(b)(2)(A), and the court shall proceed under Rule 18(d).
Return. The court shall inquire, at the beginning of each session and at reasonable intervals within a session, whether the defendant is prepared to give assurances of good behavior, and shall return the defendant to the proceeding upon such assurances. A defendant returned who again disrupts the proceeding may again be removed upon a further finding under subdivision (5).
Restraint. Restraint shall be the least restrictive means adequate to maintain order and to ensure the safety of those present. The judge shall make the findings required by subdivision (1) before restraint is imposed, and shall reconsider the necessity of restraint at the beginning of each session.
Other Persons. The court may exclude from the proceeding, or from the proceeding communications, a person other than the defendant whose conduct disrupts the proceeding, and may punish that person under Rule 43. Exclusion of spectators shall be no broader than necessary and shall be consistent with the right of the defendant to a public trial under Const. art. I § 6.
Sentencing. A defendant shall be present at the imposition of sentence, except as Rule 18(j) permits, and shall be afforded allocution as Rules 28 and 28.1 provide. Where a defendant is removed during sentencing, the court shall pronounce sentence only after affording the defendant a further opportunity to return upon assurances of good behavior, and shall cause the sentence and the reasons for it to be communicated to the defendant.