1.    An adjudication of delinquency is subject to the same standards of review on appeal as is an adult criminal conviction.

        2.    “A criminal defendant has no constitutional right to have his witnesses appear at trial without physical restraints or in civilian attire.” Syllabus point 3, State ex rel. McMannis v. Mohn, 163 W. Va. 129, 254 S.E.2d 805 ( 1979).

        3.    The issue of whether a witness for the defendant should be physically restrained or required to wear prison attire while testifying before a jury is, in general, a matter within the sound discretion of the trial judge and will not be reversed absent a showing of an abuse of that discretion.

        4.    The trial judge should not permit an incarcerated defense witness to appear at trial in the distinctive attire of a prisoner. However, the burden is upon the defendant to timely move that an incarcerated witness be permitted to testify at trial in civilian clothes. If the trial judge denies the motion, the judge must set forth on the record the reasons for denying said motion.

        5.    An incarcerated defense witness should not be subjected to physical restraint while in court unless the trial judge has found such restraint reasonably necessary to prevent escape, provide safety, or maintain order in general. The burden is upon the defendant to timely move that an incarcerated defense witness be permitted to testify at trial without physical restraints. If the trial judge orders such restraint, the judge must enter into the record of the case the reasons therefor.

        6.    Whenever the wearing of prison attire or physical restraint of a defense witness occurs in the presence of jurors trying the case, the judge should instruct those jurors that such attire or restraint is not to be considered in assessing the evidence and determining guilt.

Davis, Justice:

        Allah Jamaal W.,See footnote 1 ¹ appellant/respondent below (hereinafter referred to as “Allah”), filed this appeal from an order of the Circuit Court of Mercer County adjudicating him delinquent and committing him to the Industrial Home for Youth for a period of one year. In this appeal, Allah contends that the trial court committed error by requiring his incarcerated witnesses to wear shackles and prison clothing while testifying at his trial. The State has confessed error. However, the State urges this Court to find the error harmless. After reviewing the briefs, appellate record and listening to the oral arguments of the parties, we find the error complained of was not harmless. The conviction and sentence are reversed. The case is remanded for a new trial.

I.
FACTUAL AND PROCEDURAL HISTORY

        On the evening of November 15, 1998, Bluefield police Officer Robert Mason was talking with two people near a bar called Bo's Nightclub.See footnote 2 ² Allah walked past Officer Mason and the two exchanged hostile words.See footnote 3 ³ The testimony was conflicting as to what happened after the initial exchange of words between Allah and Officer Mason.See footnote 4 ⁴ It is clear that a struggle ensued which resulted in Allah being taken into custody and a juvenile petition being filed charging Allah with striking Officer Mason in the throat and forehead.See footnote 5 ⁵

        Allah demanded a trial by jury. Prior to trial, Allah filed a motion asking the court to permit three of his witnesses, who were incarcerated, to testify without shackles and wearing nonprison clothing. The trial court summarily denied the motion, and Allah's three witnesses testified while shackled and wearing prison clothes. The jury returned a verdict finding Allah guilty of making unlawful contact with Officer Mason. The court subsequently committed Allah to the Industrial Home for Youth for a period of one year. It is from this conviction that Allah now appeals.

II.
STANDARD OF REVIEW

        “A delinquent juvenile is 'a juvenile who has been adjudicated as one who commits an act which would be a crime under state law or a municipal ordinance if committed by an adult.'” West Virginia Dept. of Military Affairs and Pub. Safety, Div. of Juvenile Servs. v. Berger, 203 W. Va. 468, 470 n.1, 508 S.E.2d 628, 630 n.1 (1998) (quoting W. Va. Code § 49-1-4 (8) (1997) (Supp. 1997)). Accord W. Va. Code § 49-1-4 (8) (1998) (Repl. Vol. 1999). Rules of evidence and procedural rights applicable in adult criminal proceedings are applicable with equal force in juvenile adjudicatory proceedings. W. Va. Code §§ 49-5-2 (j) and (k) (1998) (Repl. Vol. 1999). Accord W. Va. Code § 49-5-2 (j) and (k) (2000) (Supp. 2000). Therefore, an adjudication of delinquency is subject to the same standards of review on appeal as is an adult criminal conviction. In the instant proceeding, the issue confronting this Court is whether it was error for the trial court to require Allah's witnesses to appear before the jury shackled and wearing prison garb.

        Heretofore, this Court has not established a specific standard for our review of whether the trial court has committed such an error. Because our discussion of the appropriate standard involves a review of the same cases we rely on in deciding the specific issues raised in this case, we set forth the appropriate standard in the body of our discussion, rather than at this point, to avoid repetition. Nevertheless, we note that we have previously held that “[a] criminal defendant has no constitutional right to have his witnesses appear at trial without physical restraints or in civilian attire.” Syl. pt. 3, State ex rel. McMannis v. Mohn, 163 W. Va. 129, 254 S.E.2d 805 (1979). Consequently, “where a nonconstitutional error has been asserted, we have adopted the rather general rule that the case will not be reversed unless the error is prejudicial to the defendant.” State v. Atkins, 163 W. Va. 502, 510, 261 S.E.2d 55, 60 (1979) (citations omitted). See also State v. Potter, 197 W. Va. 734, 748, 478 S.E.2d 742, 756 (1996) (“Our cases consistently have held that nonconstitutional errors are harmless unless the reviewing court has grave doubt as to whether the [error] substantially swayed the verdict.”). Accord State v. Salmons, 203 W. Va. 561, 509 S.E.2d 842 (1998); State v. Rahman, 199 W. Va. 144, 483 S.E.2d 273 (1996); State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995); State v. Young, 185 W. Va. 327, 406 S.E.2d 758 (1991); State v. Ferrell, 184 W. Va. 123, 399 S.E.2d 834 (1990).

III.

DISCUSSION

        In the case sub judice Allah filed a motion with the trial court seeking to have his three incarcerated witnesses testify at trial without shackles and wearing civilian clothing. The trial court summarily denied the motion. The State has confessed error in the trial court's decision to deny the motion.See footnote 6 ⁶ However, the State contends that this Court should conclude that the lower court's decision was harmless.See footnote 7 ⁷

        We begin our analysis by reviewing the seminal case of State ex rel. McMannis v. Mohn, 163 W. Va. 129, 254 S.E.2d 805 (1979). McMannis was presented to the Court as an original habeas corpus proceeding. The defendant in McMannis was convicted of second-degree sexual assault and sentenced to life imprisonment under the recidivist statute. One of the issues presented in the McMannis case concerned the defendant's argument that he had a constitutional right to have his witnesses appear at trial without physical restraints and in civilian attire.See footnote 8 ⁸ This Court rejected the defendant's argument insofar as it was presented as a constitutional right. We held that “[a] criminal defendant has no constitutional right to have his witnesses appear at trial without physical restraints or in civilian attire.” McMannis, 163 W. Va. at 139-140, 254 S.E.2d at 811.

        Although McMannis declined to extend constitutional protection to the physical appearance of a defendant's witness, we did acknowledge that “there may be occasions when forcing the defendant's witnesses to testify in physical restraints [or prison attire] may create sufficient prejudice that reversible error will occur.” McMannis, 163 W.Va. at 140, 254 S.E.2d at 811. We further suggested, in dicta, procedures that should be followed when the issue of an incarcerated witness' attire or the use of physical restraints became an issue.See footnote 9 ⁹ Id. at 139 n.7, 254 S.E.2d at 810 n.7.

        With respect to an incarcerated witness' attire, we indicated in McMannis “that it is incumbent upon defense counsel, if he wishes to obtain prison witnesses, to make voluntary arrangements with the custodial authorities for them to appear in civilian attire. If a voluntary arrangement cannot be made, he should move the court for an order in advance of trial.” 163 W. Va. at 137, 254 S.E.2d at 809. With respect to shackles, we indicated if a voluntary arrangement could not be made regarding the use of shackles, defense counsel should move the trial court for a hearing on the matter.See footnote 10 ¹⁰ Id. at 139 n.7, 254 S.E.2d at 810 n.7.

        In the instant proceeding Allah has asked that this Court elevate McMannis' dicta into law. We are inclined to do so. For reasons similar to those recognized in McMannis, courts in other jurisdictions have held that an incarcerated witness for the defendant should not be forced to testify in prison attire. See Johnson v. Spalding, 510 F. Supp. 164 (E.D. Wash. 1981); State v. Torres, 749 A.2d 1210 (Conn. App. Ct. 2000); Mullins v. State, 766 So. 2d 1136 (Fla. Ct. App. 2000); Thompson v. State, 514 S.W.2d 275 (Tex. Crim. App. 1974). Regardless of this general prohibition, courts have not overturned convictions on the sole basis that a witness for the defendant was forced to wear prison attire while testifying. See United States v. Adams, 1 F.3d 1566 (11th Cir. 1993); Johnson v. Spalding, 510 F. Supp. 164 (E.D. Wash. 1981); State v. Yates, 381 A.2d 536 (Conn. 1977); Tompkins v. State, 386 So. 2d 597 (Fla. App. 1980); State v. Marcelin, 669 So. 2d 497 (La. 1996); White v. State, 771 P.2d 152 (Nev. 1989).

        Additionally, courts in other jurisdictions have also prohibited the arbitrary use of shackles on an incarcerated witness for the defendant during the witness' trial testimony. See Harrell v. Israel, 672 F.2d 632 (7th Cir. 1982); Kennedy v. Cardwell, 487 F.2d 101 (6th Cir. 1973); Williams v. State, 629 P.2d 54 (Alaska 1981); People v. Valenzuela, 51 Cal. App. 3d 180, 198 Cal. Rptr. 469 (1984); Robbins v. State, 340 S.E.2d 206 (Ga. App. 1986); People v. Myers, 185 Ill. App. 3d 118, 540 N.E.2d 1050 (1989); State v. Bradford, 864 P.2d 680 (Kan. 1993); State v. Coursolle, 97 N.W.2d 472 (Minn. 1959); State v. Jones, 556 S.W.2d 736 (Mo. Ct. App. 1977). The rule against arbitrarily shackling a defendant's witness was explained by the Sixth Circuit Court of Appeals as follows:

            The general rule for shackling witnesses is that a defendant has a right to have his witnesses appear free of shackles, except in special circumstances where there is evident danger of escape or harm to individuals in the courtroom . . . . The reason underlying the rule is the inherent prejudice to the defendant since it is likely the jury will suspect the witness's credibility. The prejudice factor toward the defendant, although much less than the situation where the defendant is shackled, provides a valid point of comparison even though the shackled witness cases do not directly affect the presumption of innocence.

Kennedy v. Cardwell, 487 F.2d 101, 105 n.5 (6th Cir. 1973).

        Furthermore, the American Bar Association (ABA) has taken the position that an incarcerated witness for the defendant should not be compelled to testify before a jury wearing prison attire or restraints. The ABA has promulgated the following standard for this issue:

            (b) The trial judge should not permit a . . . witness to appear at trial in the distinctive attire of a prisoner unless specifically waived by the defendant.See footnote 11 ¹¹

            (c) . . . [W]itnesses should not be subjected to physical restraint while in court unless the trial judge has found such restraint reasonably necessary to maintain order. If the trial judge orders such restraint, the judge should enter into the record of the case the reasons therefor. Whenever physical restraint of a . . . witness occurs in the presence of jurors trying the case, the judge should instruct those jurors that such restraint is not to be considered in assessing the proof and determining guilt.
III Standards for Criminal Justice, Standard 15-3.1 at 15-78 (2d ed. 1986) (footnote added).See footnote 12 ¹²

        In view of McMannis and other authorities, we hold as follows. The issue of whether a witness for the defendant should be physically restrained or required to wear prison attire while testifying before a jury is, in general, a matter within the sound discretion of the trial judge and will not be reversed absent a showing of an abuse of that discretion. The trial judge should not permit an incarcerated defense witness to appear at trial in the distinctive attire of a prisoner. However, the burden is upon the defendant to timely move that an incarcerated witness be permitted to testify at trial in civilian clothes.See footnote 13 ¹³ If the trial judge denies the motion, the judge must set forth on the record the reasons for denying said motion. An incarcerated defense witness should not be subjected to physical restraint while in court unless the trial judge has found such restraint reasonably necessary to prevent escape, provide safety, or maintain order in general.See footnote 14 ¹⁴ The burden is upon the defendant to timely move that an incarcerated defense witness be permitted to testify at trial without physical restraints.See footnote 15 ¹⁵ If the trial judge orders such restraint, the judge must enter into the record of the case the reasons therefor.See footnote 16 ¹⁶ Whenever the wearing of prison attire or physical restraint of a defense witness occurs in the presence of jurors trying the case, the judge should instruct those jurors that such attire or restraint is not to be considered in assessing the evidence and determining guilt.See footnote 17 ¹⁷

        In the instant proceeding, the State has conceded that the trial judge committed error in requiring Allah's witnesses to wear prison attire and be shackled while testifying. The State's confession of error is warranted. The record is clear that Allah's counsel timely motioned the trial judge to permit incarcerated defense witnesses to testify in civilian clothing and without shackles. The trial judge summarily denied the motion and failed to provide any relevant reason for the denial. As a result of the record being silent as to the trial court's decision to deny the motion, we find such denial was an abuse of discretion.See footnote 18 ¹⁸

        The State contends that the error in this case was harmless. Therefore, the judgment should be affirmed.See footnote 19 ¹⁹ The State submits that the error was harmless for the following reasons: (1) testimonial evidence informed the jury that the witnesses were incarcerated, (2) the trial court instructed the jury not to consider the witnesses' shackles and prison attire as an indication of Allah's guilt, and (3) the witnesses contradicted Allah's self-defense theory.See footnote 20 ²⁰

        We are not persuaded by the State's arguments. None of the issues raised by the State rise to the level of ameliorating the highly prejudicial impact of having three defense witnesses paraded before the jury in prison uniforms and wearing shackles. Regardless of how credible the testimony of these witnesses may have been, we find it unlikely that the jury would find their testimony credible. The issue of prejudice in this regard was succinctly articulated in Williams v. State, 629 P.2d 54, 57-58 (Alaska 1981):

        The prejudice to a defendant from requiring one of his witnesses to testify in handcuffs lies in the inherent psychological impact on the jury, not merely in the fact that the jury may suspect that the witness committed a crime. . . . [T]he jury is necessarily prejudiced against someone appearing in restraints as being in the opinion of the judge a dangerous man, and one not to be trusted, even under the surveillance of officers.

(Internal quotations omitted).

IV.
CONCLUSION

        In view of the foregoing, the conviction and sentence in this matter are reversed. The case is remanded for a new trial.

            Three factors to be considered in deciding whether to address technically moot issues are as follows: first, the court will determine whether sufficient collateral consequences will result from determination of the questions presented so as to justify relief; second, while technically moot in the immediate context, questions of great public interest may nevertheless be addressed for the future guidance of the bar and of the public; and third, issues which may be repeatedly presented to the trial court, yet escape review at the appellate level because of their fleeting and determinate nature, may appropriately be decided.

    During oral argument, defense counsel indicated that the delinquency adjudication in this case could be used against Allah in a proceeding in Virginia. The record in this case does not disclose any facts regarding the nature of the Virginia matter, so we are not prepared to find that sufficient collateral consequences actually flow from the delinquency adjudication. However, we believe the issue of forcing a criminal defendant's witnesses to testify shackled and dressed in prison uniforms is of great public and legal concern and should be addressed by this Court for guidance to trial courts.

            “(1) The seriousness of the present charge, (2) the person's character, (3) the person's past record, (4) past escapes by the person, (5) attempted escapes by the person, (6) evidence the person is planning an escape, (7) threats of harm to others, (8) threats to cause disturbance, (9) evidence the person is bent upon self-destruction, (10) risk of mob violence, (11) risk of attempted revenge by victim's family, (12) other offenders still at large, . . .” (Citations omitted)

McMannis, 163 W. Va. at 139 n.7, 254 S.E.2d at 810 n.7 (quoting A.B.A. Advisory Committee on the Criminal Trial, Standards Relating to Trial by Jury at 96 n.9 (Approved Draft 1968)).

presence of the person to be restrained and his counsel, if any, the reasons for his action; and

            (2) Give the restrained person an opportunity to object; and

            (3) Unless the defendant or his attorney objects, instruct the jurors that the restraint is not to be considered in weighing evidence or determining the issue of guilt.

        If the restrained person controverts the stated reasons for restraint, the judge must conduct a hearing and make findings of fact.

See also Harrell v. Israel, 672 F.2d 632, 636 n.4 (7th Cir. 1982) (“Normally, where the use of physical restraints is being considered, the trial court should conduct a hearing on the matter outside the presence of the jury and state for the record the reasons for such action. This will allow a reviewing court to determine more readily whether there was an abuse of discretion.” (citation omitted)).

However, Allah did not give such testimony. Allah's testimony was to the effect that “if” he had touched the officer when he gestured with his hand while talking, it would have been accidental.