Defendants, cages and due process

In the United States we take it for granted that the accused sits at counsel table with his or her attorney during trial free from any visual restraint. In many countries, however, the defendant sits apart from his attorney in the courtroom.

In Egypt, Hosni Mubarak, the iron-fisted former President, was brought into the courtroom in a hospital bed and promptly wheeled into a cage on the opposite side of the room from his attorney. As bizarre a scene it makes, countries in the Middle East, Latin America and Eastern Europe place criminal defendants in cages at trial.

How on earth can a defendant be assured of competent assistance if he is unable to consult with his attorney during the course of trial? How can an attorney provide competent representation if he can't speak with his client during cross examination? What message does it send to a jury that the accused is sitting isolated either "in the dock" or in a cage?

According to NPR, the cage dates back to ancient times:

It is difficult to pin down precisely when the practice began, but it seems to have originated from a time "when captives were put in cages in ancient Rome and Mesopotamia," says M. Cherif Bassiouni, a professor at DePaul University's College of Law who has worked for the United Nations on human-rights issues. 

By the Middle Ages, he says, defendant's cages were a regular feature of many European courts. "The original rationale for doing it was the fear that criminal defendants would attack or intimidate witnesses or judges," Bassiouni says.

The form of the cage varies from country to country and situation to situation. Still, the cage serves as a barrier. A barrier between both the defendant and his counsel and the defendant and the trier of fact. The cage projects the not so subtle message that the defendant is a bad person from whom the people must be protected. Jenia Iontcheva Turner from the SMU Dedman School of Law views the cages as a threat to the presumption of innocence.

Turner says cages are more likely to impact the presumption of innocence in a jury trial than one before a judge or magistrate. She also notes that the construction of the cages, themselves, can be a factor.

"Mubarak was in something like a mesh cage, but if you look at the pictures of Saddam Hussein, he's in something open and less obtrusive," Turner says, referring to the former Iraqi dictator's 2006 trial. "In Europe, glass compartments have been used more often."

While we don't place criminal defendants in a cage at trial, some courts have used a "reverse cage" in cases involving sexual assault of children, in which the alleged victim testifies from another room via closed circuit television. Allowing such testimony to take place deprives the accused of his right to confront the witnesses against him and projects to the jury the message that the defendant is a dangerous person from whom we must protect the witness.

When we allow defendants to be placed into cages, what we are really caging up is the Constitution's promise of due process of law.