prison guards, all defendants were physically restrained
throughout the trial by individual arm and leg chains.
The Appellate Division held that given the potential for
violence, the trial court soundly exercised its discretion in
ordering the restraints. The Court emphasized that a
trial court must hold a hearing on the question and set
forth on the record the reasons for ordering restraints.
See also State v. Reddy, 137 N.J. Super. 32 (App. Div.
1975); State v. Roberts, 86 N.J. Super. 159 (App. Div.
1965) (where in course of trial there is evident danger of
defendant’s escape or restraint is necessary to protect
others from attack by defendant, trial judge has
discretion to order defendant restrained).
In State v. Roscus, 16 N.J. 415, 428 (1954),
defendant made frequent outbursts during the tenth day
of a murder trial and had threatened that he would not
return to the courtroom for the remainder of the trial. On
the 11th day of trial defendant appeared in court in a
restraining belt but the belt was removed before the jury
appeared. The court held that defendant’s right to a fair
trial was not impaired.
In State v. Spivey, 122 N.J. Super. 249 (App. Div.
1973), rev’d on other gds. 65 N.J. 21 (1974), the court
held that if neither a contempt citation nor binding and
gagging nor any other reasonable disciplinary measure
serves to control defendant in an adequate manner,
defendant may be removed from the courtroom and the
trial proceed in his absence until he agrees to behave
appropriately.
In State v. Carrion-Collazo, 221 N.J. Super. 103
(App. Div. 1987), certif. denied, 110 N.J. 171 (1988),
the Appellate Division reversed an order granting post-
conviction relief based on defendant’s wearing prison
garb at trial and held that the trial court was not obligated
to make inquiry concerning defendant’s voluntary waiver
of his right to wear civilian clothes at trial. The Appellate
Division, however, advised trial courts, in the interests of
justice, to question future defendants personally
concerning the right to appear in civilian clothing. Id. at
- The court also noted that when a request for civilian
clothing or a precautionary voir dire or jury charge is
made by defendant or counsel, such requests should be
honored. Id. at 113.
D. Conduct of Trial Judge
A trial judge has broad discretion to conduct a fair
trial by controlling the clear and orderly presentation of
evidence. Reversal of a conviction is warranted only if
defendant can demonstrate that the conduct of the trial
judge, in the context of the entire trial, prejudiced
defendant in the eyes of the jury. State v. Guido, 40 N.J.
at 208. A trial judge has broad discretion in determining
the proper limitations of cross-examination of a witness
whose credibility is in issue. State v. Harvey, 151 N.J.
117, 188 (1997), cert. denied, 120 S.Ct. 811 (2000);
State v. Martini I, 131 N.J. 176, 263 (1993), cert. denied,
519 U.S. 1063 (1997); State v. Scherzer, 301 N.J. Super.
363, 415 (App. Div. 1997), certif. denied, 151 N.J. 466
(1997).1. Judge’s Authority to Examine Witnesses
Although a trial judge should not unduly interfere
with the manner of counsel’s presentation of evidence,
State v. Walls, 138 N.J. Super. 445 (App. Div. 1976), at
times such an exercise of discretion is necessary. State v.
Cohen, 211 N.J. Super. 544, 552 (App. Div. 1986), certif.
denied, 107 N.J. 115 (1987). For instance, in a rape case,
the New Jersey Supreme Court held the trial judge
properly questioned the victim at length where it
appeared that her mental anguish called for the
intercession. State v. Riley, 28 N.J. 188, 200-205 (1958),
appeal dismissed, 359 U.S. 313, cert. denied, 361 U.S. 879
(1959). A trial judge has discretion to ask leading
questioning. Id. at 204-205; See also State in Interest of
B.G., 289 N.J. Super. 361, 370-71 (App. Div. 1996),
certif. denied, 145 N.J. 374 (1996) (leading and
suggestive questioning by court permissible when
witness of tender age). In addition, a judge may question
witnesses to clarify evidence. State v. Guido, 40 N.J. at
208; State v. Cohen, 211 N.J. Super. at 553. Nevertheless,
through his questioning, the judge should not become an
advocate. State v. Ross, 80 N.J. 239, 248-249 (1979);
State v. Ray, 43 N.J. 19, 25 (1964); State v. Chaney, 160
N.J. Super. 49 (App. Div. 1978), certif. denied, 78 N.J.
405 (1978).2. Ex Parte Communications Between Judge and Jurors or Witnesses
In Rushen v. Spain, 464 U.S. 114, 104 S.Ct. 453
(1983), the Supreme Court emphatically disagreed with
the Ninth Circuit’s conclusion that an unrecorded ex
parte communication between the judge and a juror can
never be harmless. Instead the Court took the position
that, while an ex parte communication relating to some
aspect of the trial generally should be disclosed to counsel
for all parties, the particular ex parte communication in
question was innocuous because the judge and juror did
not discuss any fact in controversy or any law applicable
to the case. See also State v. Brown, 275 N.J. Super. 329,