“Innocent until Presented in a Glass Cage” – How the use of Docks can affect the Presumption of Innocence

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Gavel in court

‘Innocent until proven guilty’ is an ancient legal maxim, however research shows that this may not always be the case.

In most criminal trials, the person who is ‘accused’ is held in a ‘dock’ – an enclosed area from which they are able to view the court proceedings.

The position of the dock in the courtroom varies around the world, and even between states.

For example, in New South Wales and South Australia, the dock faces the jury, whilst in Victoria it is positioned at the back of the courtroom.

The dock is usually slightly elevated and surrounded by a guardrail.

In the United Kingdom and other European countries, the ‘accused’ is usually held inside a glass cage.

By contrast, accused people in the United States generally sit at the ‘bar table’ beside their legal team.

Research conducted by Professor David Tait at the University of Western Sydney suggests that the layout and positioning of the dock can have a significant bearing on how jurors perceive their guilt.

He conducted an experiment using 407 test jurors and assigned them to one of three scenarios.

In the first scenario, the accused person was seated at the bar table, mirroring the approach used in the United States.

In the second scenario, he was situated in an ‘open dock’ behind a guardrail, which is the method commonly employed in Australia.

The final situation involved the accused being held in a glass cage, similar to those used in European countries.

In each scenario, Professor Tait used the same facts: the person was accused of a terrorism offence and faced a 45-minute long trial.

What he found was astonishing.

Even though the facts of each case were the same, Professor Tait found that the location of the accused had a significant impact on whether or not they were perceived to be guilty.

Where the accused was seated at the bar table, only 36% of jurors found him guilty.

When he was seated in the open dock, 47% of jurors found him guilty.

But when he was held in the glass cage, a whopping 60% found him guilty.

Professor Tait says that this shows that both the open dock and glass dock approaches compromise a person’s right to a fair trial and violate the presumption of innocence.

It appears that the fairest approach is that adopted by the United States, where the accused person is seated with their legal team at the bar table.

This approach has been used in the United States since 2005, following the case of Deck v Missouri.

Carman Deck was accused of a number of criminal offences, including robbery and murder.

At trial, he was presented to the court wearing shackles, was convicted of all charges and sentenced to death.

His criminal defence team argued that the use of shackles sent a clear message to the jury that Deck was a dangerous person who needed to be restrained for the protection of those in the courtroom.

They argued that the shackles created an unfair prejudice in the minds of the jurors and gave the appearance of guilt.

Deck’s lawyers further submitted that the use of shackles violated his constitutional rights, including his right to due process and a fair trial.

The prejudice was compounded by the fact that the shackles prevented Deck from conversing freely with his lawyers and communicating on the witness stand.

His appeal was upheld in the Supreme Court, where it was found that shackling the accused person was only appropriate in special cases; for example, where there is the risk that he or she may disrupt the proceedings.

The court also upheld Deck’s argument that shackling rendered him open to prejudice by the jury, thereby undermining the presumption of innocence.

This case set an important precedent to be applied in US courts – that the accused should not be restrained, whether it be in shackles or in a dock, as it may compromise their right to a fair and just trial.

In Australia, courts have also considered the legality of the dock in two recent cases.

The cases of Benbrika and Baladjam both concerned a number of men who had been charged with terrorism offences.

Both involved the use of a glass dock – an unusual circumstance in Australia.

Benbrika was heard in Victoria.

The accused were held in a glass dock at the back of the courtroom, with each of them seated in an individual pod alongside a security guard.

The docks were built specifically for the trial as a temporary measure.

Seven of the twelve defendants were found guilty.

The defence lawyers argued that the use of the glass dock jeopardised the rights of their clients to a fair trial, as it made it difficult for them to communicate with their lawyers and follow the proceedings.

As a result, the judge ordered that the glass screens be removed.

In the case of Baladjam, the dock was a glass room to the side of the court.

Although the accused were able to communicate with their lawyers, their vision of the courtroom was impeded by the design of the dock.

Again, the judge found that the structure of the dock compromised the right to a fair trial and affected the accuseds’ ability to communicate with their lawyers.

As a result, the glass was ordered to be removed.

While these two cases barely touch on the legality of docks in Australian courts, they provide fertile ground for the consideration of alternative means for holding accused people in criminal trials.

It remains to be seen whether the US approach will be adopted in the future, however research such as that conducted by Professor Tait certainly provides food for thought.

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Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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