Subpart 3.2 - Silence/Filibuster
A. Party Chooses to Remain Silent or Party Chooses to 'Filibuster"
Members of the movement will engage in any of a number of tactics to stall, disrupt, or render literally impossible the operation of the courtroom. As part of a general refusal to subject himself to the court's jurisdiction the defendant may refuse to enter a plea. He may refuse to swear an oath on religious grounds before taking the stand, or he may even refuse to say anything at all. In some cases, a party may take the stand in his own defense, and then refuse to respond to questions asked by the other side on cross-examination.
Members of the movement are also known to take the exact opposite tack. They may talk incessantly, refusing to follow substantive or procedural law. A defendant may also respond to simple questions with questions of his own. In at least one case a member of a common-law court actually went so far as to convene his own court in the courtroom, asking the judge questions in response to his questions, ruling on arguments and motions, and generally conducting proceedings pursuant to his court's "rules."
B. Typical Responses to Silence/Filibuster
The obvious response to these problems is the use of the court's contempt power. The thorny problem with that response is that, at least with a criminal defendant, there may be serious 5th amendment implications - a defendant simply may not be required to testify against himself where it may incriminate him. Where a criminal defendant refuses to respond to the court, the court may choose to enter a "not guilty" plea on the defendant's behalf. The court also has the option of ordering compliance with the court's rules and taking such actions as may be necessary to obtain such compliance.
1. Contempt Power - As always, the court has the power to find a party that refuses to comply with its rules and orders. While this power is secure, at least in the criminal context there are issues that must be addressed under the 5th amendment. The most crucial place where use of the contempt power and attendant measures to ensure compliance is where the litigant is proceeding pro se in a criminal matter, and is thus his own attorney, as well. In this instance, the litigant's ability to make objections, question witnesses, and the like is seriously hampered. Here, the court must address very serious Sixth Amendment concerns.[2]
2. Entering a Plea on the Party's Behalf - Where the militiaman refuses to enter his own plea, the court should enter a plea of "not guilty" on the defendant's behalf. The defendant is clearly not prejudiced by such an action (assuming he is, in fact, present—otherwise there are substantial procedural due process problems), because he may later change his plea if necessary, and a "not guilty" plea affords him the benefit of a presumption of innocence. In other words, the other side must still prove its case in both a civil and a criminal action where the court assumes that the defendant denies the charges filed against him.
3. Ordering Silence/Compliance With Rules - In either the case where the defendant refuses to speak or the case where the defendant refuses to refrain from speaking, a court is clearly within its power to order, under pain of contempt, compliance with court rules and procedures. Where a defendant chooses to represent himself pro se, this issue becomes more complicated, except that jurisdictions generally allow a court to terminate a defendant's right to represent himself, where necessary. The court should make the requirements clear, and then punish with the contempt power in order to see that those requirements are met. In some cases, more drastic measures may be necessary in order to secure compliance with court rules (see below). In other circumstances a defendant may refuse, on religious grounds, to give an oath before testifying. An oath may be modified for religious witnesses. Generally the oath need only show that the witness intends to tell the truth and that he knows that failure to do so will subject him to a penalty for perjury.
C. Additional Authority
The United States Supreme Court has addressed the issues surrounding the unduly disruptive litigant. The following case is the first clear explication of the principles at stake:
1. Gagging Party - Illinois v Alien, 397 U. S. 337 (1970).
2. Removing Party From Proceedings - Illinois v Alien, 397 U. S. 337 (1970) ("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").
3. Generally - see the following:
• Bostic v. State, 531 S .2d 1210 (Miss. 1988)
• People v. Davis, 851 P.2d 259 (Colo.App. 1993)
4. But See - the following cases limit the court's authority:
· Spain v. Rushen, 883 F.2d 712 (9th Cir. 1989) (court must pursue less restrictive alternatives before pursuing physical restraints).
· Jones v. Meyer, 899 F.2d 883 (9th Cir. 1990) (allowing the use of shackles only when justified by need to maintain security, and after seeking less restrictive alternatives).
· Elledge v. Dagger, 823 F.2d 1429 (11th Cir. 1987) (violation of due process to shackle defendant at hearing without affording opportunity to contest necessity of the shackling). For further discussion of the gagging/shackling response, please see the Bellowes article cited at Note 42, above.