State v. Jason L. Miller, 2011 WI App 34; for Miller: Shelley Fite, SPD, Madison Appellate; case activity; Miller BiC; State Resp.; Reply
If the stun belt (or other restraint) isn’t visible to the jury, the trial court need not consider its necessity before requiring that the defendant wear it during trial. “Because there is no evidence that the jury could see the stun belt, we conclude the circuit court had no duty to inquire into the necessity of the restraint,” ¶13.
State v. Champlain, 2008 WI App 5, ¶22, 307 Wis. 2d 232, 744 N.W.2d 889 (trial court has sua sponte duty to inquire into necessity for visible restraint), distinguished. There, “the visibility of the device was central to our decision,” ¶9. The rule disfavoring restraint aims to prevent juror prejudice, which isn’t at risk if the jury doesn’t know of the restraint, ¶10.
Visibility? That may be in the eye of, well, the beholder. Take this example from a recent habeas decision, finding deficient performance but not prejudice, due to counsel’s failure to object to a stun belt, Stephenson v. Wilson, 619 F.3d 664 (7th Cir. 2010):
The stun belt is of course inaudible, and worn under the defendant’s shirt is visible only as a slight bulge at his back and thus does not reveal its purpose. But we know from juror affidavits solicited by Stephenson’s postconviction counsel that one juror guessed that he was wearing a stun belt because the juror had seen a stun belt in a television show, and another juror inferred it from the bulge at Stephenson’s back and the absence of handcuffs; he apparently thought that Stephenson had to be physically restrained in some way. One of these jurors may have reported their discoveries to the other two jurors whose affidavits state that they thought the defendant was wearing a stun belt; but this is speculation.
The record in Miller’s case conclusively showed that the stun belt was fully obscured from view; or so we must assume, anyway, from the decision. But as the blockquote above indicates, it may be unwise to make assumptions. In any event, visibility is where the battle must be fought.
