Illinois v. Allen, 397 U.S. 337 (1970)

Fundamental Cases in Procedural Law by Adam J. McKee

JUSTICE BLACK delivered the opinion of the Court.

The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that: “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him. . . .”  We have held that the Fourteenth Amendment makes the guarantees of this clause obligatory upon the States. One of the most basic of the rights guaranteed by the Confrontation Clause is the accused’s right to be present in the courtroom at every stage of his trial.  The question presented in this case is whether an accused can claim the benefit of this constitutional right to remain in the courtroom while, at the same time, he engages in speech and conduct which is so noisy, disorderly, and disruptive that it is exceedingly difficult or wholly impossible to carry on the trial.

The issue arose in the following way.  The respondent, Allen, was convicted by an Illinois jury of armed robbery, and was sentenced to serve 10 to 30 years in the Illinois State Penitentiary.  The evidence against him showed that, on August 12, 1956, he entered a tavern in Illinois and, after ordering a drink, took $200 from the bartender at gunpoint.  The Supreme Court of Illinois affirmed his conviction, and this Court denied certiorari. Later, Allen filed a petition for a writ of habeas corpus in federal court, alleging that he had been wrongfully deprived by the Illinois trial judge of his constitutional right to remain present throughout his trial.  Finding no constitutional violation, the District Court declined to issue the writ. The Court of Appeals reversed.

The facts surrounding Allen’s expulsion from the courtroom are set out in the Court of Appeals’ opinion sustaining Allen’s contention:


“After his indictment and during the pretrial stage, the petitioner [Allen] refused court-appointed counsel and indicated to the trial court on several occasions that he wished to conduct his own defense.  After considerable argument by the petitioner, the trial judge told him,”

“I’ll let you be your own lawyer, but I’ll ask Mr. Kelly [court-appointed counsel] [to] sit in and protect the record for you, insofar as possible.”

“The trial began on September 9, 1957.  After the State’s Attorney had accepted the first four jurors following their voir dire examination, the petitioner began examining the first juror and continued at great length.  Finally, the trial judge interrupted the petitioner, requesting him to confine his questions solely to matters relating to the prospective juror’s qualifications.  At that point, the petitioner started to argue with the judge in a most abusive and disrespectful manner. At last, and seemingly in desperation, the judge asked appointed counsel to proceed with the examination of the jurors. The petitioner continued to talk, proclaiming that the appointed attorney as not going to act as his lawyer.  He terminated his remarks by saying, ‘When I go out for lunchtime, you’re [the judge] going to be a corpse here.’ At that point, he tore the file which his attorney had and threw the papers on the floor. The trial judge thereupon stated to the petitioner, ‘One more outbreak of that sort and I’ll remove you from the courtroom.’ This warning had no effect on the petitioner.  He continued to talk back to the judge, saying,


“There’s not going to be no trial, either.  I’m going to sit here and you’re going to talk and you can bring your shackles out and straight jacket and put them on me and tape my mouth, but it will do no good, because there’s not going to be no trial.”

“After more abusive remarks by the petitioner, the trial judge ordered the trial to proceed in the petitioner’s absence.  The petitioner was removed from the courtroom. The voir dire examination then continued, and the jury was selected in the absence of the petitioner.”


“After a noon recess, and before the jury was brought into the courtroom, the petitioner, appearing before the judge, complained about the fairness of the trial and his appointed attorney.  He also said he wanted to be present in the court during his trial. In reply, the judge said that the petitioner would be permitted to remain in the courtroom if he ‘behaved [himself] and [did] not interfere with the introduction of the case.’  The jury was brought in and seated. Counsel for the petitioner then moved to exclude the witnesses from the courtroom. The [petitioner] protested this effort on the part of his attorney, saying:

“There is going to be no proceeding.  I’m going to start talking and I’m going to keep on talking all through the trial.  There’s not going to be no trial like this. I want my sister and my friends here in court to testify for me.”


“The trial judge thereupon ordered the petitioner removed from the courtroom.”


After this second removal, Allen remained out of the courtroom during the presentation of the State’s case in chief, except that he was brought in on several occasions for purposes of identification. During one of these latter appearances, Allen responded to one of the judge’s questions with vile and abusive language.  After the prosecution’s case had been presented, the trial judge reiterated his promise to Allen that he could return to the courtroom whenever he agreed to conduct himself properly. Allen gave some assurances of proper conduct, and was permitted to be present through the remainder of the trial, principally his defense, which was conducted by his appointed counsel.

The Court of Appeals went on to hold that the Supreme Court of Illinois was wrong in ruling that Allen had, by his conduct, relinquished his constitutional right to be present, declaring that:


“No conditions may be imposed on the absolute right of a criminal defendant to be present at all stages of the proceeding.  The insistence of a defendant that he exercise this right under unreasonable conditions does not amount to a waiver. Such conditions, if insisted upon, should and must be dealt with in a manner that does not compel the relinquishment of his right.”


“In light of the decision in Hopt v. Utah and Shields v. United States (1927), as well as the constitutional mandate of the sixth amendment, we are of the view that the defendant should not have been excluded from the courtroom during his trial despite his disruptive and disrespectful conduct.  The proper course for the trial judge was to have restrained the defendant by whatever means necessary, even if those means included his being shackled and gagged.”


The Court of Appeals felt that the defendant’s Sixth Amendment right to be present at his own trial was so “absolute” that, no matter how unruly or disruptive the defendant’s conduct might be, he could never be held to have lost that right so long as he continued to insist upon it, as Allen clearly did.  Therefore the Court of Appeals concluded that a trial judge could never expel a defendant from his own trial, and that the judge’s ultimate remedy, when faced with an obstreperous defendant, like Allen, who determines to make his trial impossible, is to bind and gag him. We cannot agree that the Sixth Amendment, the cases upon which the Court of Appeals relied, or any other cases of this Court so handicap a trial judge in conducting a criminal trial.

The broad dicta in Hopt v. Utah and Lewis v. United States (1892) that a trial can never continue in the defendant’s absence have been expressly rejected.  We accept instead the statement of Mr. Justice Cardozo, who, speaking for the Court in Snyder v. Massachusetts (1934), said: “No doubt the privilege [of personally confronting witnesses] may be lost by consent, or at times even by misconduct.”  Although mindful that courts must indulge every reasonable presumption against the loss of constitutional rights, Johnson v. Zerbst (1938), we explicitly hold today that a defendant can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom. Once lost, the right to be present can, of course be reclaimed as soon as the defendant is willing to conduct himself consistently with the decorum and respect inherent in the concept of courts and judicial proceedings.

It is essential to the proper administration of criminal justice that dignity, order, and decorum be the hallmarks of all court proceedings in our country.  The flagrant disregard in the courtroom of elementary standards of proper conduct should not and cannot be tolerated. We believe trial judges confronted with disruptive, contumacious, stubbornly defiant defendants must be given sufficient discretion to meet the circumstances of each case.  No one formula for maintaining the appropriate courtroom atmosphere will be best in all situations. We think there are at least three constitutionally permissible ways for a trial judge to handle an obstreperous defendant like Allen: (1) bind and gag him, thereby keeping him present; (2) cite him for contempt; (3) take him out of the courtroom until he promises to conduct himself properly.


Trying a defendant for a crime while he sits bound and gagged before the judge and jury would, to an extent, comply with that part of the Sixth Amendment’s purposes that accords the defendant an opportunity to confront the witnesses at the trial.  But even to contemplate such a technique, much less see it, arouses a feeling that no person should be tried while shackled and gagged except as a last resort. Not only is it possible that the sight of shackles and gags might have a significant effect on the jury’s feelings about the defendant, but the use of this technique is itself something of an affront to the very dignity and decorum of judicial proceedings that the judge is seeking to uphold.

Moreover, one of the defendant’s primary advantages of being present at the trial, his ability to communicate with his counsel, is greatly reduced when the defendant is in a condition of total physical restraint.  It is in part because of these inherent disadvantages and limitations in this method of dealing with disorderly defendants that we decline to hold with the Court of Appeals that a defendant cannot under any possible circumstances be deprived of his right to be present at trial.  However, in some situations which we need not attempt to foresee, binding and gagging might possibly be the fairest and most reasonable way to handle a defendant who acts as Allen did here.


In a footnote, the Court of Appeals suggested the possible availability of contempt of court as a remedy to make Allen behave in his robbery trial, and it is true that citing or threatening to cite a contumacious defendant for criminal contempt might, in itself, be sufficient to make a defendant stop interrupting a trial. If so, the problem would be solved easily, and the defendant could remain in the courtroom.  Of course, if the defendant is determined to prevent any trial, then a court in attempting to try the defendant for contempt, is still confronted with the identical dilemma that the Illinois court faced in this case.  And criminal contempt has obvious limitations as a sanction when the defendant is charged with a crime so serious that a very severe sentence such as death or life imprisonment is likely to be imposed.  In such a case, the defendant might not be affected by a mere contempt sentence when he ultimately faces a far more serious sanction. Nevertheless, the contempt remedy should be borne in mind by a judge in the circumstances of this case.

Another aspect of the contempt remedy is the judge’s power, when exercised consistently with state and federal law, to imprison an unruly defendant such as Allen for civil contempt and discontinue the trial until such time as the defendant promises to behave himself.  This procedure is consistent with the defendant’s right to be present at trial, and yet it avoids the serious shortcomings of the use of shackles and gags. It must be recognized, however, that a defendant might conceivably, as a matter of calculated strategy, elect to spend a prolonged period in confinement for contempt in the hope that adverse witnesses might be unavailable after a lapse of time.  A court must guard against allowing a defendant to profit from his own wrong in this way.


The trial court in this case decided, under the circumstances, to remove the defendant from the courtroom and to continue his trial in his absence until and unless he promised to conduct himself in a manner befitting an American courtroom.  As we said earlier, we find nothing unconstitutional about this procedure. Allen’s behavior was clearly of such an extreme and aggravated nature as to justify either his removal from the courtroom or his total physical restraint. Prior to his removal, he was repeatedly warned by the trial judge that he would be removed from the courtroom if he persisted in his unruly conduct, and, as Judge Hastings observed in his dissenting opinion, the record demonstrates that Allen would not have been at all dissuaded by the trial judge’s use of his criminal contempt powers.  Allen was constantly informed that he could return to the trial when he would agree to conduct himself in an orderly manner. Under these circumstances, we hold that Allen lost his right guaranteed by the Sixth and Fourteenth Amendments to be present throughout his trial.


It is not pleasant to hold that the respondent Allen was properly banished from the court for a part of his own trial.  But our courts, palladiums of liberty as they are, cannot be treated disrespectfully with impunity. Nor can the accused be permitted by his disruptive conduct indefinitely to avoid being tried on the charges brought against him.  It would degrade our country and our judicial system to permit our courts to be bullied, insulted, and humiliated, and their orderly progress thwarted and obstructed by defendants brought before them charged with crimes.

As guardians of the public welfare, our state and federal judicial systems strive to administer equal justice to the rich and the poor, the good and the bad, the native and foreign born of every race, nationality, and religion.  Being manned by humans, the courts are not perfect, and are bound to make some errors. But, if our courts are to remain what the Founders intended, the citadels of justice, their proceedings cannot and must not be infected with the sort of scurrilous, abusive language and conduct paraded before the Illinois trial judge in this case.  The record shows that the Illinois judge at all times conducted himself with that dignity, decorum, and patience that befit a judge. Even in holding that the trial judge had erred, the Court of Appeals praised his “commendable patience under severe provocation.”

We do not hold that removing this defendant from his own trial was the only way the Illinois judge could have constitutionally solved the problem he had.  We do hold, however, that there is nothing whatever in this record to show that the judge did not act completely within his discretion. Deplorable as it is to remove a man from his own trial, even for a short time, we hold that the judge did not commit legal error in doing what he did.

The judgment of the Court of Appeals is



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Last Modified:  08/21/2019


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