If you are going to trial as a criminal defendant, what should you wear to your trial?

What if you are incarcerated and don’t have a choice as to what you wear? Can the State force you to wear prison clothes at trial? Can they force you to wear shackles and handcuffs in front of the jury?

What Should a Defendant Wear at Trial?

If you are a defendant who is going to trial in your criminal case, appearance matters.

There may be some things you justifiably refuse to change – if your attorney recommends cutting your dreadlocks or shaving your beard, for example, that’s a judgment call you’ll have to make.

Whether it’s your personal hygiene, your hairstyle, or the clothes that you wear, you have to ask yourself, “To the average juror, do I look like someone who would commit a crime?”

You probably don’t want to wear jeans with holes in them or a t-shirt that says “Legalize It,” for example.

You also don’t want to look too casual when you are on trial – if you aren’t taking your case seriously, why should the jury? In most cases, you should dress for court as you dress for church, a wedding, or any of the most important events in your life.

Men should wear a long-sleeve, button-down shirt, dress pants, and dress shoes, and, depending on your comfort level, consider a suit coat and tie. Your clothes should be cleaned, ironed, and properly fitted whenever possible.

Women should wear dress pants or a skirt with a blouse or sweater, a suit, or a dress, and your clothes should be cleaned, ironed, and fit properly.

What About Other Court Appearances?

Although you may not be in front of a jury, consider that your prosecutor’s opinion of you during negotiations or the judge’s opinion of you at a non-jury hearing matters. As with a criminal trial, dress as if you are appearing at one of the most important events in your life, and strive to make a positive impression on the decision-maker, whether that is the prosecutor (whom I’m asking to dismiss your case or put you into pretrial intervention), the judge (whom I’m asking to dismiss your case or grant your motions), or a jury (who is deciding your ultimate fate).

What if You’re in Jail or You Don’t Have Nice Clothes to Wear to Court?

Not everyone can afford to buy a suit to wear to court. And, if you are in jail or prison, you don’t have the option of driving down to the department store to pick up some nice clothes. What then?

Talk to your attorney before your court date – many criminal defense lawyers have a wardrobe of dress clothes they have collected over the years for this very purpose. If they do not, they can most likely find a suit for you or coordinate with your family or friends to get some decent clothes.

Can a Defendant be Forced to Wear Prison Clothes in Front of the Jury?

In Ryals v. State, the SC Supreme Court reversed a habitual traffic offender conviction (and sentence for ten years including an unrelated probation revocation) because a Berkeley County court allowed the defendant to go to trial wearing a prison jumpsuit with the name of the detention center on the back, shackles, and handcuffs…

Apparently, they picked a jury, and the state presented its case, as the defendant sat in front of the jury wearing a prison jumpsuit, leg irons, and shackles. Before the defendant testified, the judge ordered his leg irons removed, but his defense lawyer never attempted to provide him with street clothes and never objected to the state trying him as he was handcuffed and shackled in front of the jury.

The SC Supreme Court has previously held that it is unconstitutional to force a defendant to wear visible shackles in front of a jury unless there is a security issue that is “specific to the defendant on trial:”

This court has held “the Constitution forbids the use of visible shackles during the penalty phase, as it forbids their use during the guilt phase, unless that use is justified by an essential state interest—such as interest in courtroom security— specific to the defendant on trial.” State v. Heyward, 432 S.C. 296, 324, 852 S.E.2d 452, 466 (Ct. App. 2020) (quoting Deck v. Missouri, 544 U.S. 622, 624 (2005)). Thus, the Heyward court found the trial court abused its discretion in denying Heyward’s request to remove his shackles during jury selection when the record was devoid of any reason why he should have been shackled and there were no concerns of courtroom decorum or security raised. Id.

Leg Irons, Shackles, Prison Clothes – Do You Still Have to Prove Prejudice?

The Court in Ryals discusses the prejudice prong of PCR claims (in most cases, you must prove 1) ineffective assistance of counsel and 2) there was a reasonable probability that, but for the ineffective assistance, the outcome would have been different).

In Ryals, the Court says that they are “[b]alancing the impact of Ryals’ forced appearance at his trial in prison clothing visible to the jury against the strength of the State’s evidence against him,” and they find that there was prejudice (“there is a reasonable probability that, but for trial counsel’s failure to object to his appearance at this trial in prison clothing, the result of the proceeding would have been different.”)

This doesn’t exactly track with the Heyward decision, though. The Ryals Court is saying, in essence, “If the evidence is overwhelming, it’s okay to force the defendant to trial wearing shackles and a prison jumpsuit.”

That’s not what the Heyward Court said.

In Heyward, the Court found that there was no prejudice, not because the evidence against the defendant was overwhelming, but because 1) there was no evidence that any jurors saw the shackles and 2) the shackles were removed after jury selection and before the trial began:

Although Heyward objected to being shackled at his feet, arguing any potential juror in the first two rows of the gallery directly behind him could see the shackles, nothing in the record indicates that any of the jurors who were selected for Heyward’s trial could or did see his shackles. We also note Heyward was only shackled during the jury selection and he was not shackled during trial.

What’s the Takeaway?

First, if you are representing a criminal defendant at trial, it is your job to help them find a suit to wear in front of the jury.

Find respectable clothing – go to Goodwill and buy it if you have to. Call the local public defender and ask if they have a wardrobe you could use for your client. Call your client’s family and friends and get their help finding clothes for trial.

Second, if the court does not allow your client to put on their street clothes or refuses to remove handcuffs or leg irons without a valid security concern, make a record of 1) the fact that the shackles, jumpsuit, or handcuffs are there, and 2) that the shackles or handcuffs are visible to jurors.

It is hard to imagine a scenario where a defendant is forced to trial in a prison jumpsuit or leg irons, absent valid security concerns, where the courts would not find that it prejudiced their defense.

Criminal Defense Lawyers in Charleston, SC

Charleston, SC criminal defense attorney Grant B. Smaldone has extensive experience defending clients charged with criminal offenses in South Carolina, including trial experience ranging from relatively minor offenses to acquittals in murder trials.

Call now at (843) 808-2100 or send an email to talk to a Charleston defense lawyer today.