Demeanor at Counsel Table May Not be Considered Evidence

The Washington Court of Appeals says a defendant’s demeanor at counsel table should not be considered by a jury when it decides a case. The court said so in State v. Robert Barry, 179 Wn. App. 175, 317 P.3d 528 (2014).

The State prosecuted Barry for first degree child molestation. During deliberations, the jury asked the court if it could consider Barry’s actions or demeanor in the courtroom during the trial as “evidence.” The court responded, “Evidence includes what you witness in the courtroom.” The jury found Barry guilty.

Barry appealed, arguing the trial court’s instruction violated his Fifth Amendment right against self-incrimination and his Sixth Amendment right to a verdict based solely on the evidence.

Generally, jury instructions allow the jury to consider “the manner of a witness while testifying” to determine a witness’s credibility. But Barry did not testify. Thus his credibility as a witness was not at issue, and his manner could not be considered under that instruction. Standard Washington jury instructions also state that the only evidence to be considered by the jury is the witnesses’ testimony and the admitted exhibits. The court did not admit any exhibit showing Barry’s courtroom demeanor.

The Court of Appeals agreed that Barry’s demeanor should not have been considered as evidence.

Still, it affirmed his conviction. The appeals court could not find this improper jury instruction harmful because the trial court record did not show Barry’s demeanor in the courtroom, and it was impossible to know whether his demeanor was favorable or unfavorable to him.