In recent years, spectators have begun to wear buttons during criminal trials. These buttons usually display the image of the crime victim.1 Victims' rights supporters argue that such a practice merely supports the memory of the victim.2 Advocates of the criminally accused argue that the purpose of such buttons is to influence the jury to find the defendant guilty.3 As a result, defendants convicted while spectators wore buttons at trial have challenged that spectator conduct as "inherently prejudicial," thereby violating the Fourteenth Amendment's Equal Protection or Due Process Clauses or the Sixth Amendment's guarantee of a fair trial.4 Federal circuits are in conflict on whether button wearing (or similar spectator conduct) is "inherently prejudicial."5 The Supreme Court has not addressed this claim.6 This Note addresses the clash between spectators' free speech rights under the First Amendment and the right of the accused to a fair trial under the Sixth Amendment. This Note asserts that wearing buttons at trial is "inherently prejudicial" because it is irrelevant to the fact-finding process and offends courtroom decorum. Wearing buttons at trial should be prohibited.
Part II of this Note explores applications of defendant protections at trial, specifically the Sixth Amendment and the Due Process Clauses. Part III details the negative effects on trial procedure from allowing spectators to wear buttons during trial. Part IV argues that Congress, to avoid slowly nullifying protections for the accused, must ban spectators from wearing buttons or engaging in similar behavior in the courtroom during the guilt phase of jury trials. Absent action from Congress, the Supreme Court should find that wearing buttons during the guilt phase of trial is inherently prejudicial.
II. EVOLUTION OF THE UNITED STATES SUPREME COURT' S STANDARDS GOVERNING PREJUDICIAL COURTROOM PRACTICES
Before assessing the desirability of allowing spectators to wear buttons during criminal trials, it is crucial to understand the evolution of United States Supreme Court precedent concerning behavior during trial. Claims of prejudicial spectator conduct, such as button wearing, potentially involve conduct by state actors and non-state actors. When considering the button issue, it is helpful to understand Supreme Court opinions involving defendants' claims of prejudice stemming from both state actors and non-state actors. Therefore, Part II.A examines practices by state actors during trials and Part II.B examines practices by non-state actors. Part II.C describes the current circuit split concerning spectator behavior.
A. Practices by State Actors During Trial
In a series of cases from 1970 to 2006, the Supreme Court has recognized that certain state courtroom practices are so inherently prejudicial that they deprive a defendant of the right to a fair trial guaranteed under the Sixth Amendment7 and the Due Process Clauses.8
The first such case was Illinois v. Allen9 in 1970, in which the Court ruled on how a state may handle a disruptive defendant at a criminal trial. The trial judge twice removed defendant Allen, on trial for armed robbery, from the courtroom for abusive language and refusal to follow the court's repeated instructions to remain quiet.10 The judge stated that Allen could return to the courtroom if he behaved properly. After the prosecution rested, Allen agreed to behave properly and received permission to return to the courtroom. The jury convicted Allen. Allen appealed, arguing that the Sixth Amendment guaranteed him the absolute right to confront witnesses and that the trial court had unconstitutionally infringed on this right when it ejected Allen from the courtroom. The Sixth Circuit agreed with Allen. The Supreme Court reversed, finding defendants do not have an absolute right to attend trial.11
The Court emphasized that proper administration of criminal justice requires that "dignity, order, and decorum be the hallmarks of all court proceedings. …