Limits on Defendants’ Courtroom Attire

Shea and I have blogged before about and lawyer attire and juror attire. I’ve even touched briefly on defendants’ attire, but none of us have ever addressed a judge’s ability to set minimum clothing standards for defendants. That issue has reared its head in Fayetteville, where a district court judge recently held a defendant in contempt for wearing several large voodoo necklaces. The local news story, with a picture, is here, and a transcript of a recording of the incident is here.

We usually try not to comment on pending North Carolina cases. I don’t know whether this one is still pending, as it sounds like the defendant has been released from a brief period of custody, but I’ll still refrain from expressing an opinion on the particular case.

My colleague Michael Crowell is quoted in the news article as saying that a “court needs to be sensitive to religious issues in imposing dress requirements in the courtroom.” At a minimum, he explains, “when a potential religious basis for dress appears the court should allow an opportunity to explain and should inquire whether the religious belief is sincere and bona fide. When the attire is not clearly disruptive, it should be allowed.”

That sounds right to me. Although judges have considerable leeway to control their courtrooms, they typically should not restrict defendants’ apparel choices without a good reason. Clothing can be expressive and so may implicate First Amendment values. First Amendment concerns are doubly implicated when the apparel in question is religious in nature.

I’m not aware of a case right on point in North Carolina, but consider the following out-of-state authorities:

• Joseph v. State, 642 So.2d 613 (Fla. Ct. App. 1994) (the trial court erred in prohibiting a defendant who believed in “an ‘omni’ type of religion” from wearing “a sweat shirt and jeans with ostensible religious pictures and names,” as this burdened the defendant’s free exercise rights without sufficient justification)
• In re Palmer, 386 A.2d 1112 (R.I. 1978) (a trial judge improperly ordered a litigant wearing a Muslim prayer cap to “remove the skullcap or leave the courtroom”; because the judge “did not attempt to discover whether [the litigant’s] beliefs were sincerely held or whether they precluded petitioner from removing his [skullcap] in court . . . the trial [judge] unjustifiably infringed upon the religious freedoms granted to petitioner and to all citizens by the free exercise clause of the first amendment”)
• State v. Hodges, 695 S.W.2d 171 (Tenn. 1985) (a defendant claimed that his religious beliefs required him to dress like a chicken when attending court; a trial judge held him in contempt; the reviewing court noted that courts should balance litigants’ free exercise rights against the need to preserve order in the courtroom; it remanded the case for further findings regarding the sincerity of the defendant’s beliefs, suggesting that they may not have been sincere, “particularly if it proves to be true that defendant is the sole adherent to his asserted religious belief and practice”)

The bottom line is that while there may well be religious apparel that is so inappropriate and disruptive that a judge may prohibit it, that situation should be rare.

As a final note, if a judge is considering holding a litigant – or anyone else present in the courtroom – in contempt based on the person’s attire, the judge should be attentive to the procedural requirements regarding contempt of court. Those requirements are addressed in detail in this paper.

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