State v. Barry; Defendant’s Courtroom Demeanor as Evidence
In its most recent opinion, the Washington State Supreme Court had to decide whether the trial court erred by instructing the jury that evidence includes everything that they (the jury) witness in the courtroom, including the defendant’s actions and demeanor.
Robert Barry stood trial for two counts of child molestation. During its deliberations, the jury sent the court a question asking if it can consider “observations of the defendant’s actions-demeanor during the court case” as “evidence.” The trial court instructed the jury that “evidence includes what you witness in the courtroom.” The Supreme Court ruled that this instruction was error, as evidence includes only the testimony presented by witnesses and exhibits admitted as evidence. However, the record contained no references to the defendant’s demeanor in the courtroom throughout trial, so the Supreme Court had no way of knowing what aspects, if any (presumably they considered at least some of his demeanor, hence the question during deliberations), of Mr. Barry’s “actions-demeanor” drew the attention of the jury, either favorably or not.
Because there was no mention in the record of what the jury called the “actions-demeanor”, and also because the Fifth Amendment does not extend to “actions-demeanor”, and the Sixth Amendment does not imply that all evidentiary errors are of constitutional concern, the Supreme Court applied the nonconstitutional error standard. The nonconstitutional standard places the burden of proof onto the defendant, necessitating them to show that the error in question was prejudicial. Because, as previously stated, nowhere in the record did there contain any references to Barry’s courtroom conduct, he was essentially unable to prove prejudicial error. For that reason, the appellate court affirmed Barry’s conviction.
Defense counsel should remain alert to this issue and object to any such instruction given by the Judge. Unfortunately for Mr. Barry, he will never know whether an unfortunately timed expression or reaction might have influenced the jury’s verdict.
