Order compelling a witness to wear jail attire when testifying; People v Banks; Mootness; Issue of public significance that is likely to recur yet evade judicial review

The court held that, on the facts of this case, the trial court abused its discretion in requiring a prosecution witness (M) to wear jail attire while testifying at defendant’s trial. Thus, it vacated the order granting defendant’s motion to compel M to do so, and remanded. The charges against defendant arose from allegations that he attacked M, a former police officer, when M responded to a call. While this case was pending, M “was arrested on unrelated charges and incarcerated in” a county jail. Defendant filed his motion after learning the prosecution intended to call M as a witness and present him in civilian clothing at defendant’s trial. As an initial matter, noting it was unknown if M was currently incarcerated, the court found that the issue was not moot, and was “one of public significance, and one that is likely to recur yet evade judicial review.” Turning to the merits, “issues related to a witness’s appearance at trial may have a significant impact on a witness’s credibility and may undermine the fairness of trial.” The court concluded in Banks that, “absent a showing that the circumstances require handcuffing a defense witness, the fairness of the trial must not be undermined by destroying the credibility of a witness before the witness even gets the opportunity to testify.” The court noted here that “persuasive authority suggests that, as a general rule, ‘courts should not compel incarcerated witnesses to appear at trial in the distinctive attire of a prisoner.’” The Nevada Supreme Court has stated the “‘overwhelming majority of jurisdictions hold that an incarcerated witness should not be compelled to testify in prison clothing.’” The court found that, as “with shackling a witness, requiring a witness to appear in jail attire raises concerns that the jail clothes will undermine the witness’s credibility and taint the fact-finding process.” Further, the conclusion that “witnesses should not be made to appear in jail attire is consistent with the general principle that criminal charges against a witness, when [they] have not resulted in a conviction, cannot be used to impeach the witnesses, unless the charges provide evidence of bias or prejudice.” The court noted that “the lawfulness of [M’s] conduct as a police officer is an element of the charges for assaulting and resisting a police officer, and [his] jail clothes could lead the jury to believe that [M] is not someone who acts lawfully.”