Jury Consideration Of The Defendant’s Non-Testimonial Demeanor And Conduct:  The Hidden Challenge to the Defendant’s Constitutional Rights

(January 1999)

By Thomas Lundy

    Post-verdict juror interviews demonstrate that jurors rely on their observations of the defendant in reaching their verdict even if the defendant did not testify. Indeed, it is not uncommon for the jurors themselves to view the defendant’s demeanor and conduct as a natural and proper basis upon which to decide the case.

    However, such conclusions, if based on non-testimonial observations of the defendant, constitute misconduct which can undermine the defendant’s fundamental constitutional rights in several ways.

    First, non-testimonial demeanor or conduct is not "relevant evidence" because it does not bear upon any material issue at trial. (People v. Garcia (CA 1984) 160 CA3d 82, 91 [206 CR 468].) Nor can it be considered by the jury as demeanor evidence because such evidence is only relevant as it bears on the credibility of a witness who has testified. (Ibid; California Evidence Code § 780.)

    Second, the defendant’s demeanor or conduct is not evidence which has been adduced at trial. The due process clause of the federal constitution (5th and 14th Amendments) "encompasses the right not to be convicted except on the basis of evidence adduced at trial." (U.S. v. Schuler (9th Cir. 1997) 813 F2d 978, 981.) "[O]ne accused of a crime is entitled to have his guilt or innocence determined solely on the basis of the evidence introduced at trial, and not on grounds ... not adduced as proof at trial." (Taylor v. Kentucky (78) 436 US 478, 485 [56 LEd2d 468; 98 SCt 1930]; see also U.S. v. Carroll (4th Cir. 1982) 678 F2d 1208, 1210; Lee v. State ( TX 1997) 964 SW2d 3, 14, 17 ["the State must confine its jury argument concerning defendant’s guilt to statements based upon properly admitted evidence"].)

    Third, jury reliance on the defendant’s demeanor or conduct impugns the defendant’s privilege against self-incrimination (5th and 14th Amendments) and right to trial by jury, to counsel, and to assist his counsel in his or her own defense (6th and 14th Amendments). (U.S. v. Carroll (4th Cir. 1982) 678 F2d 1208, 1210 [if defendant elects not to testify, the fact of his presence and non-testimonial behavior in the courtroom could not be taken as evidence of his guilt].)

    People v. Heishman (CA 1988) 45 C3d 147 [246 CR 673] considered only the relevance issue in concluding that the defendant's behavior was a proper subject for consideration by the jury. (Heishman, 45 C3d at 197 [relevant to credibility where defendant put character in issue]; see also People v. Albritton (CA, 10/29/98, D026988) 67 CA4th 647 [79 CR2d 169] UNPUBLISHED PORTION [relied on Heishman to allow DA to comment on demeanor of non-testifying defendant].) Hence, Heishman is not authority as to the other federal constitutional issues discussed above. (See People v. Dillon (CA 1983) 34 C3d 441, 473-74 [194 CR 390] [cases are not authority for matters not considered].)

    Specifically, as to remorse, the California Supreme Court has never held that the jury could consider a non-testifying defendant’s courtroom demeanor in determining the appropriateness of the death penalty. In People v. Gonzalez (A 1990) 51 C3d 1179, 1226 fn 26 [275 CR 729], the court suggested occasions when observations of the defendant’s demeanor could be considered by the jury even if not reflected in the formal record. However, in Gonzalez, supra, at 1202, People v. Adcox (CA 1988) 47 C3d 207, 229 [253 CR 55], and People v. Williams (CA 1988) 44 C3d 883, 901 [245 CR 336] the defendants testified.

B. Strategic Considerations

    Among the strategic considerations regarding the problem are the following:

    Consideration should be given to advising the client regarding this problem and assisting the client in conducting himself or herself in the most beneficial manner during trial. However, this may not always be easy for the client to accomplish. Moreover, it is not always possible to predict how, or in what manner, the jury will consider its observations of the defendant.

    2. Consider Factors Which May Affect the Defendant’s Demeanor.

    There are extraneous factors which may affect the defendant’s demeanor such as medication the defendant may have taken or the defendant’s cultural background. Counsel should be aware of any medication the defendant is taking. This should include checking the jail/prison records for any medications which are being given to the defendant. Similarly inquiry should be made into the impact of the defendant’s cultural background on his or her demeanor.

    3. Cautionary Instructions.

    Another strategic consideration is whether to request cautionary instructions intended to curb the jurys’ consideration of the defendant’s demeanor and conduct. Instructions, such as the examples set forth below, could inform the jury that non-testimonial demeanor or conduct may not be considered which is a fact about which the jury may not otherwise be aware.

    Additionally, the instructions could inform the jury that the defendant’s medication or cultural background may impact the defendant’s demeanor. The advisability of this type of an instruction has been recognized. For example, in cases where the requirements of Riggins v. Nevada (92) 504 US 127 [118 LEd2d 479; 112 SCt 1810] have been met and the defendant is involuntarily given a demeanor altering medication in order to be competent to stand trial, the true demeanor of the defendant — without such medication — is of probative value with respect to the defense of insanity. In Lawrence v. State (Georgia) (GA 1995) 454 SE2d 446 [265 Ga 310], the court resolved this question by holding that the defendant is entitled, upon motion of defense counsel, to have the jury informed, at the beginning of trial and in the charge to the jury, that the defendant is under the influence of medication, that the defendant’s behavior in their presence is conditioned by the medication, and that the insanity asserted as the defendant’s defense is to be evaluated as of the time the alleged criminal acts were committed.

CAVEAT: Of course, the decision whether to request such an instruction requires careful evaluation as to whether it will unduly emphasize the factor sought to be limited. Consideration should also be given to the impact of the cautionary instruction on the potential constitutional challenge on appeal. Whether requested or not counsel should consider emphasizing to the court the inadequacy of a limiting instruction due to the danger it will highlight the prejudice.

Cautionary Instruction Regarding Physical Restraints

    Ladies and gentlemen of the jury, as you can see [the defendant is shackled] [there are extra bailiffs] [__________]. This is a customary practice that has nothing to do with the defendant. Therefore, you can see that it would be very unfair for you to somehow hold the [shackling] [extra bailiffs] [__________] against the defendant, when it has nothing to do with [him] [her] at all. As a result, I instruct you that you may not consider the [shackling] [extra bailiffs] [__________] at all. Do not consider it as evidence of anything and do not permit it to enter into your view of the evidence or your later deliberations.

RETURN TO TABLE OF CONTENTS