THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 3 - CHAPTER 18
Go to Volume 3 Table of Contents - Go to Chapter 18 Table of Contents

18.6 Demeanor And In-Court Behavior Of Nondisruptive Defendant

    18.6.1 Jury May Not Consider The Defendant's Nontestimonial Appearance Or Demeanor While Not Testifying
    18.6.2 Capital Trial: No Consideration Of Nontestimonial Appearance Or Demeanor
    18.6.3 Non-Disruptive Defendant: Improper To Consider Nontestimonial Demeanor Or Appearance
    18.6.4 Jury May Only Consider The Defendant's Testimonial Demeanor On The Question Of Credibility
    18.6.5 Consideration Of Defendant's Culture, In Evaluating Demeanor At Trial
    18.6.6 Medication Of Defendant At Trial
    18.6.7 Credibility Of Witnesses: Improper For Prosecutor To Force Defendant To Evaluate The Credibility Of Prosecution Witnesses -- Forcing A Defendant To Call A Prosecution Witness A Liar Is Prosecutorial Misconduct
    18.6.8  Improper For Prosecutor To Ask Defense Witnesses If Government Witnesses Were Lying – Forcing A Defense Witness To Call A Prosecution Witness A Liar Is Prosecutorial Misconduct
    18.6.9 Improper Prosecution Comment On Defendant’s In-Court Demeanor

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 3 - CHAPTER 18

RATIONALE: Even if the defendant is not disruptive, there may be a tendency for the jury to consider the defendant's nontestimonial demeanor and appearance in the courtroom. Hence, it may be appropriate to consider instruction on this issue.

POINTS AND AUTHORITIES: There are several reasons why the in-court demeanor or conduct of a nontestifying defendant should not be considered by a jury.

    First, such 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.; see also United States v. Velarde-Gomez (9th Cir. 2001) 269 F3d 1023 [evidence of demeanor relates to physical characteristics, not efforts at communication and is not testimonial]; People v. Boyette (CA 2002) 29 C4th 381 [127 CR2d 544] [prosecutor committed misconduct insofar as she suggested in her argument that the jury should find appellant unreliable based on his courtroom demeanor].)

    Second, even if relevant, the defendant's demeanor or conduct is not a matter which has been admitted into evidence. 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 (1978) 436 US 478, 485 [98 SCt 1930; 56 LEd2d 468]; see also U.S. v. Carroll (4th Cir. 1982) 678 F2d 1208, 1210; Davis v. State (TX 1997) 964 SW2d 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 right not to testify (5th and 14th Amendments) and right to trial by jury, right to counsel, including the right 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 nontestimonial behavior in the courtroom could not be taken as evidence of his guilt].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 1.1; 2.2; 7.3].

PRACTICE NOTE: This instruction would seem to be particularly important in the penalty phase of a capital case where factors such as the defendant's demeanor -- e.g., whether or not he looks remorseful -- could easily be relied upon by the jury in determining whether or not to impose a sentence of death. Post-verdict juror interviews establish that the jurors may heavily rely upon the defendant's "unremorseful" demeanor to discredit the defense or impose death even though the defendant never took the stand. (See NCJIC 18.6.2 [Capital Trial: No Consideration Of Nontestimonial Appearance Or Demeanor].)

    You may only consider the defendant's demeanor, conduct or appearance while [he] [she] [is] [was] testifying and not at any other time.

    The defendant's demeanor, conduct, or appearance may only be considered for the purpose of assessing [his] [her] [credibility] [character] [remorse] [_______].

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 3 - CHAPTER 18

RATIONALE: In a capital trial there is a danger the jury will rely on the defendant's nontestimonial appearance or demeanor to find a lack of remorse or other basis for imposing a death sentence.

POINTS AND AUTHORITIES: There is a natural tendency for the jury to rely on its observations of a nontestifying defendant in a capital trial to find lack of remorse. It has been empirically recognized that "The defendant's demeanor during trial...influences jurors' beliefs about remorse." (Eisenberg, Garvey & Wells, "But Was He Sorry? The Role of Remorse In Capital Sentencing," 83 Cornell L. Rev. 1599, 1600 (Sept. 1998).) However, such observations are not evidence and may not properly be considered by the jury. (See NCJIC 18.6.3 [Nondisruptive Defendant: Improper To Consider Nontestimonial Demeanor Or Appearance]; see also NCJIC 24.2.2.2 [Jury Must Not Consider Demeanor Of Witness While Not Testifying]; see also Mitchell v. U.S. (1999) 526 US 314, 327-30 [119 SCt 1307, 1316; 143 LEd2d 424] [prosecution retains burden of proving facts relevant to the crime at sentencing and may not rely on adverse inference from defendant's failure to testify at guilt phase; question of whether silence bears on determination of lack of remorse left undecided].)

NOTE: In People v. Gonzalez (CA 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. When the defendant does not testify the defendant's demeanor is not evidence.

CAVEAT: The decision whether to request such an instruction requires careful evaluation as to whether it will unduly emphasize the factor sought to be limited. (See "CAVEAT" to NCJIC 17.2.2.1 [Instruction That Shackling Is Routine Practice Not Related To Defendant].) 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 the inadequacy of a limiting instruction due to the danger that it will highlight the prejudice.

STRATEGY NOTE: There may be hidden factors (e.g., defendant's cultural characteristics, medications taken during trial, etc.) which may impact his demeanor and conduct at trial. For example, such factors may lead the jury to falsely conclude that the defendant's stoicism shows a lack of remorse. (See NCJIC 18.6.5 [Consideration Of Defendant's Culture In Evaluating Demeanor At Trial].)

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 3 - CHAPTER 18

    See NCJIC 18.6.1 [Jury May Not Consider The Defendant's Nontestimonial Appearance Or Demeanor While Not Testifying].

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 3 - CHAPTER 18

RATIONALE: Without special instruction the jury may tend to consider the defendant's testimonial demeanor and appearance for purposes other than evaluating credibility.

POINTS AND AUTHORITIES: Even if nontestimonial demeanor was proper evidence (but see NCJIC 18.6.3 [Nondisruptive Defendant: Improper To Consider Nontestimonial Demeanor Or Appearance]), unless the defendant's demeanor has been put in issue (see e.g., People v. Heishman (CA 1988) 45 C3d 147, 197 [246 CR 673]) [in-court behavior relevant where defendant put character in issue]), the only relevance of the defendant's appearance or demeanor is on the issue of credibility.

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 3 - CHAPTER 18

PRACTICE NOTE: Exit interviews with jurors suggest that there is a very real possibility the jury will notice and rely on the defendant's appearance, demeanor and conduct in the courtroom even if he or she doesn't testify. Hence, counsel should give consideration as to how to advise the client in this regard. Additionally, extraneous factors which could impact the defendant's appearance (e.g., medications, cultural characteristics, etc.) should be investigated and considered, both in advising the client and in formulating cautionary instruction requests. (See also NCJIC 256.4.5 [Insanity Instruction Regarding Demeanor Altering Medication].)

    For example, such factors may lead the jury to falsely conclude that the defendant's stoicism shows a lack of remorse.

    See NCJIC 18.6.2 [Capital Trial: No Consideration Of Nontestimonial Appearance Or Demeanor].

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 3 - CHAPTER 18

    It can also impact the defendant's ability to interact with counsel and comprehension at trial. (Ibid.)

    "[T]he Constitution permits the Government involuntarily to administer antipsychotic drugs to a mentally ill defendant facing serious criminal charges in order to render that defendant competent to stand trial, but only if the treatment is medically appropriate, is substantially unlikely to have side effects that may undermine the fairness of the trial, and, taking account of less intrusive alternatives, is necessary to further important governmental trial-related interests." (Sell v. United States (2003) 539 US 166, 179 [123 SCt 2174; 156 LEd2d 197].) Under this standard the instances where a defendant my be involuntarily medicated for purposed of regaining competence to stand trial should be rare for several reasons:

1) Important governmental interests must be at stake. Crimes against the person and against property may both be serious, but circumstances may ameliorate the importance of bring the defendant to trial, such as the lengthy involuntary commitment the defendant may face by refusing the medications, and where a defendant has already been confined for a long period of time, for which he or she would get credit for time served, if convicted.

2) The court must determine that involuntary medications will significantly further state interests. The medication must be substantially likely to render the defendant competent, and must do so without side effects that will interfere with the defendant’s ability to assist counsel.

3) The medication must be necessary to further the state interests, i.e., less intrusive means will not produce the same results.

4) The drugs must be medically appropriate. (Sell, 539 US at 181.)

    The Second Circuit has held that the standard for determining the propriety of medicating the accused to render him competent is "heightened" scrutiny. (See U.S. v. Gomes (2nd Cir. 2002) 289 F3d 71; see also  Sell v. United States (2003) 539 US 166 [123 SCt 2174, 2184-85; 156 LEd2d 197] [instances where medication is permitted should be "rare"].)

    Thus, the government cannot administer antipsychotic drugs involuntarily to a defendant to render him competent to stand trial for a serious, but nonviolent, crime where it is unknown whether the side effects are likely to undermine the fairness of trial. (But see United States v. Morin (8th Cir. 2003) 338 F3d 838[court’s failure to order medical staff at detention center to discontinue his voluntary antipsychotic medication did not violate defendant’s due process rights].)

    See also NCJIC 17.1.2 [Courtroom Security: Sources Of Prejudice To The Defendant].)

    See also NCJIC 256.4.5 [Insanity Instruction Regarding Demeanor Altering Medication].

    See also NCJIC 256.7.3.2 [Amnesia Affecting Capacity To Commit The Crime And/Or Defend Against The Charges].

    See also NCJIC  2.6 [Presence Of Defendant Re: Instructions].

RESEARCH NOTE:  U.S. v. Weston (D.C. Cir. 2001) 255 F3d 873 reviewed in the Harvard Law Review, 115 HVLR 737, Dec. 2002 [analyzes the question of whether a trial court can order the involuntary administration of anti-psychotic drugs to a pre-trial detainee, diagnosed as schizophrenic and severely psychotic, in order to render the defendant competent to stand trial].

    See also Forcible Administration of Antipsychotic Medication to Pretrial Detainees--Federal Cases, 188 A.L.R. Fed. 285, secs. 2, 5, 6(b), 8, 9(a), 9(b), 11(a), 11(b).

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 3 - CHAPTER 18

PRACTICE NOTE: When a defendant is testifying, it is error for the prosecutor to ask the defendant why the prosecution witnesses would lie about him. (U.S. v. Sanchez (9th Cir. 1999) 176 F3d 1214; U.S. v. Sanchez-Lima (9th Cir. 1998) 161 F3d 545; U.S. v. Boyd (DC Cir. 1995) 54 F3d 868, 871; see also McLeod v. U.S. (DC App. 1990) 568 A2d 1094, 1097; People v. Dowd (IL 1981) 428 NE2d 894, 904; Commonwealth v. Johnson (MA 1992) 588 NE2d 684, 690; People v. Buckey (MI 1984) 348 NW2d 53, 55; U.S. v. Sanchez (9th Cir. 2000) 176 F3d 1214, 1219-20 [forcing the defendant to call the officer a liar is prosecutorial misconduct]; see also State v. Singh (CT 2002) 793 A2d 226, 241 [prosecutor's implications that the jury could not acquit defendant unless it believed that the identifying witness was lying or mistaken, and action in personally vouching for the identifying witness's veracity, were so prejudicial, in going to defendant's only defense, that new trial was required].)

    There are two main reasons why this tactic is improper: (1) asking a defendant to comment on another witness’s veracity invades the province of the jury and does nothing to assist the jury in assessing witness credibility (U.S. v. Sanchez,176 F3d at 1220), and (2) it distorts the burden of proof by creating a risk that the jury will conclude that, in order to find the defendant is not guilty, it must find that the state witness has lied. (See State v. Graves (2003) 668 NW2d 860; but see Fisher v. State (Md. Ct. Spec. App. 1999) 736 A2d 1125.)

    See also NCJIC 18.6.8 [Improper For Prosecutor To Ask Defense Witnesses If Government Witnesses Were Lying].

STRATEGY NOTE:  In some cases this type of question could "open the door" to rebuttal evidence as to various reasons why a police officer would lie--e.g., professional interest (see NCJIC 27.6.3 [Testimony Of Police Officers And Other Officials: Professional Interest As Credibility Factor]); proceeds from potential forfeiture (see NCJIC 29.1.11 [Bias Of Police Officer As Expert Witness Based On Potential Forfeiture Of Defendant's Assets]; the Blue Wall Of Silence (see NCJIC 27.6.5 [Law Enforcement Witness Credibility: "Blue Wall Of Silence"]);  racism, etc.

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 3 - CHAPTER 18

PRACTICE NOTE: See U.S. v. Sanchez (9th Cir. 1999) 176 F3d 1214; see also U.S. v. Geston (9th Cir. 2002) 299 F3d 1130; NCJIC 18.6.7 [Credibility Of Witnesses: Improper For Prosecutor To Force Defendant To Evaluate The Credibility Of Prosecution Witnesses -- Forcing A Defendant To Call A Prosecution Witness A Liar Is Prosecutorial Misconduct].

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 3 - CHAPTER 18