Courtroom demeanor: The theater of the courtroom

Minnesota Law Review

Volumn 92, Issue 3, 2008, Pages 573-633

  Levenson, Laurie L ^a,b  

^a Department of Law ^*

^b LOYOLA LAW SCHOOL   (United States)

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EID: 41349122927     PISSN: 00265535     EISSN: None     Source Type: Journal    
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References (512)

1. WILLIAM SHAKESPEARE, AS YOU LIKE IT act 2, sc. 7, at 622 (Shakespeare Head Press ed., Oxford Univ. Press 1938) (1623).
2. See Peter W. Murphy, "There's No Business Like . . . ?" Some Thoughts on the Ethics of Acting in the Courtroom, 44 S. TEX. L. REV. 111, 111 (2002) (arguing that there is "undeniably a close relationship" between a courtroom and a theater). Recognizing that the courtroom is like a theater, practitioners are often instructed on how to act effectively in the courtroom.
3. See, e.g., Donald B. Fiedler, Acting Effectively in Court: Using Dramatic Techniques, CHAMPION, July 2001, at 18, 19-23.
4. Moreover, jurors often view the courtroom as a theater, as one of the jurors in the O.J. Simpson murder trial indicated: The whole thing with those closing arguments was I felt it was all a script. Everybody had his or her little script. I hated it because at that point you're supposed to be tying in all the evidence and tying in everything. So you're sitting there and trying to just focus on the issues and here they are, Marcia Clark, the woe-is-me . . . trying to get the tear thing. And Johnnie Cochran is going on about Proverbs and this, that, and the other, and the hat routine and "if it doesn't fit, you must acquit." GILBERT GEIS & LEIGH B. BIENEN, CRIMES OF THE CENTURY 187 (1998).
5. My colleague, Victor Gold, has written one of the seminal articles on the effects of lawyers' advocacy in the courtroom. See Victor Gold, Covert Advocacy: Reflections on the Use of Psychological Persuasion Techniques in the Courtroom, 65 N.C. L. REV. 481, 497-509 (1987) (describing how the erosion of jury independence can prevent the jury from fulfilling its proper role in our system of justice);
6. see also William M. O'Barr & John M. Conley, When a Juror Watches a Lawyer, BARRISTER, Summer 1976, at 8, 9-11 (summarizing the findings of an experiment on the effectiveness of "power language" in the courtroom);
7. Michelle Pan, Strategy or Stratagem: The Use of Improper Psychological Tactics by Trial Attorneys to Persuade Jurors, 74 U. CIN. L. REV. 259, 261-63 (2005) (recognizing the effectiveness of lawyers' "psychological tactics" on jurors, and questioning the propriety of such tactics). The focus of this Article, however, is not the nonverbal communication of lawyers, but rather defendants' nonverbal communication and its impact on juries.
8. For an explanation of how defense counsel should present and interact with their clients in the courtroom, see LAWRENCE J. SMITH & LORETTA A. MALANDRO, COURTROOM COMMUNICATION STRATEGIES §§1.37-.38, at 71-78 (1985) (advising attorneys on how to do everything from touching their clients to show psychological closeness, to projecting "likability and approachability" in the courtroom). As Smith and Malandro explain, jurors act like "detectives," looking for any clues, on or off the witness stand, to assist them in deciding the outcome of a case.
9. Id. § 1.49, at 90. For instance, in one case, post-trial jury interviews revealed that jurors' observations of the oft-changing color of the plaintiff's toenail polish during the trial had as much or greater impact on the jurors as the testimony of any witness.
10. Id.
11. Expert jury consultants such as Dr. Jo-Ellan Dimitrius report that jurors consider all of the dynamics of the courtroom in reaching a verdict. See John Spano, Welter's Absence Plays Uncertain Role in Trial, L.A. TIMES, Oct. 9, 2006, at B5, available at 2006 WLNR 17440608 ("The courtroom becomes the home for the jury .... They look and watch everyone who walks into their home - the defendant, the judge, or someone in the audience. They make assumptions based on their interaction with people in the courtroom." (quoting Dr. Jo-Ellan Dimitrius) (internal quotation marks omitted)). The extent to which jurors consider the demeanor of third parties in the courtroom is taking on additional importance as victims are being given additional rights.
12. See Tresa Baldas, Victims Ascendant, NAT'L L.J., Feb. 19, 2007, at 1 (discussing the potential effect of amendments to the Federal Rules of Criminal Procedure on prosecutors' decisions to put a "grieving relative" on the stand).
13. VALERIE P. HANS & NEIL VIDMAR, JUDGING THE JURY 131 (1986) (quoting EDWIN H. SUTHERLAND & DONALD R. CRESSEY, PRINCIPLES OF CRIMINOLOGY 442 (7th ed. 1966)).
14. See supra note 2 and accompanying text.
15. See infra Part I.B.
16. See infra note 39 and accompanying text.
17. See U.S. CONST, amend. VI.
18. HAZEL THORNTON, HUNG JURY: THE DIARY OF A MENENDEZ JUROR 46-47 (1995) (recounting one juror's remarks that she attached "great significance" to things that a nonjuror might not even notice).
19. Among the trials discussed in this Article are those of Lorena Bobbitt, Erik and Lyle Menendez, and Timothy McVeigh.
20. This Article focuses on the impact of a defendant's appearance and demeanor on jurors. Of course, there is also the issue of whether such factors affect judges' decisions, including those at sentencing. For more information on this topic, see William T. Pizzi et al, Discrimination in Sentencing on the Basis of Afrocentric Features, 10 MICH. J. RACE & L. 327, 348-51 (2005) (analyzing whether race impacts the sentences that defendants receive).
21. See, e.g., SMITH & MALANDRO, supra note 4, § 1.90, at 148-54 (discussing studies in which the social attractiveness of the defendant was found to have a measurable impact on the jury);
22. David L. Wiley, Beauty and the Beast-Physical Appearance Discrimination in American Criminal Trials, 27 ST. MARY'S L.J. 193, 211-12 (1995) ("Research suggests that people viewed as facially unattractive are more likely to be perceived as criminal than are facially attractive persons.");
23. see also Michael Searcy et al., Communication in the Courtroom and the "Appearance" of Justice, in APPLICATIONS OF NONVERBAL COMMUNICATION 41, 41-42 (Ronald E. Riggio & Robert S. Feldman eds., 2005) (contending that verbal and nonverbal behavior that may be interpreted in one way if it occurs outside the courtroom is likely to convey a different impression inside the courtroom).
24. See, e.g., Julie Hinds, Dressing for a Hoped-For Success, USA TODAY, Jan. 12, 1994, at 3A (noting the various ways in which consultants for both Lorena and John Bobbitt attempted to sculpt their clients' appearances to their respective advantages at trial).
25. Gold, supra note 3, at 483.
26. See F. LEE BAILEY & KENNETH J. FISHMAN, CRIMINAL TRIAL TECHNIQUES §§ 41, 44 (1994) (providing advice on "Successful Courtroom Dressing" and the proper body language and appearance for the "Defendant as a Witness").
27. See id.;
28. CRIMINAL DEFENSE TECHNIQUES §§ 1A.04-.06 (Liliana Perillo & Juliet Turner eds., 1998).
29. The difference between a defendant's demeanor and appearance is that the former refers to how a person acts, consciously or not, whereas the latter does not involve an action component. MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 60, 331 (11th ed. 2003) (defining "appearance" as an "outward aspect" or "look," while defining "demeanor" as "behavior toward others"). A person's appearance may become evidence in a case, for example, when it forms the basis for identification. Demeanor, as a form of nonverbal communication, can be used throughout a trial to convey information to the jury without the person ever testifying. For a linguistic analysis of "nonverbal" communication,
30. see Peter Meijes Tiersma, The Judge as Linguist, 27 LOY. L.A. L. REV. 269, 275-79 (1993).
31. Even those researchers who recognize that jurors go beyond the evidence to construct a "story" of the events based upon their own experiences or pretrial publicity have failed to address the effect of a defendant's demeanor on jurors. See, e.g., NORMAN J. FINKEL, COMMONSENSE JUSTICE: JURORS' NOTIONS OF THE LAW 72 (1995) (listing the "extralegal factors" jurors consider as including evidence, the defendant's attractiveness, prejudicial statements, legally irrelevant information, and jurors' prior knowledge, but failing to include the defendant's demeanor).
32. Although specific studies quantifying how quickly jurors form an opinion regarding defendants do not exist, Smith and Malandro posit that when it comes to trial counsel, "[j]urors form their initial impressions during the first four minutes. Their assessment is based primarily on visual perceptions. They tend to accept the visual and nonverbal cues while rejecting the verbal cues." SMITH & MALANDRO, supra note 4, § 5.93, at 538. Accordingly, there is little reason to believe that the nonverbal cues of a defendant have any less impact on the jurors than those of the attorneys.
33. HANS & VIDMAR, supra note 6, at 35 (quoting Andrew Hamilton, defense counsel to John Peter Zenger in Zenger's famous trial for seditious libel in 1735). For a thorough discussion of the Zenger trial,
34. see id. at 32-35.
35. See infra Part I.C.
36. See infra Part I.A.
37. Admissible evidence only includes evidence that is relevant. See FED. R. EVID. 402. Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence."
38. Id. R. 401.
39. Relevant evidence may be excluded, however, "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Id. R. 403.
40. See id. R. 701-03 (regulating testimony by lay and expert witnesses).
41. See id. R. 612 (permitting the admission of writings to refresh a witness's memory);
42. id. R. 1006 (allowing evidence to be presented in summary form at trial if it cannot be conveniently examined in court).
43. See id. R. 1006.
44. See id.
45. See id. R. 412 (permitting evidence to show that a person other than the accused was the source of the physical evidence).
46. See California Jury Instructions: Criminal [CALJIC] § 1.02 (2007);
47. see also 1 HOWARD G. LEVENTHAL, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE § 4:76 (rev. ed. 1988) ("Nor are you to consider or give any weight at all to statements or opinions of counsel: they are not witnesses, and their statements, arguments and opinions do not constitute evidence.");
48. KEVIN F. O'MALLEY ET AL., FEDERAL JURY PRACTICE AND INSTRUCTIONS: CIVIL § 103.01, at 108 (5th ed. 2000) (summarizing the Fifth Circuit's general jury instructions for charge, which require the judge to state that, "[statements and arguments of the attorneys are not evidence and are not instructions on the law").
49. LLOYD E. MOORE, THE JURY: TOOL OF KINGS, PALLADIUM OF LIBERTY 70 (2d ed. 1988).
50. An Act to Establish Rules of Evidence for Certain Courts and Proceedings, Pub. L. No. 93-595, 88 Stat. 1926 (1975) (codified as amended in scattered sections of 28 U.S.C.).
51. FED. R. EVID. 102 (stating that the Federal Rules of Evidence aim to regulate the admission of evidence and promote "the end that the trust may be ascertained and proceedings justly determined").
52. In the early trials of the seventeenth century, "it was not considered irregular to call witnesses to prove a prisoner's bad character in order to raise a presumption of his guilt." JOHN H. LANGBEIN, THE ORIGINS OF ADVERSARY CRIMINAL TRIAL 190-91 (2003)
53. (quoting l JAMES FITZJAMES STEPHEN, A HISTORY OF THE CRIMINAL LAW OF ENGLAND 368 (London, MacMillan 1883))
54. (internal quotation marks omitted). For nearly the last three hundred years, however, courts have been concerned about allowing a defendant to be tried on his character, and have thus put limitations on the use of character evidence. See, e.g., Jason M. Brauser, Comment, Intrinsic or Extrinsic?: The Confusing Distinction Between Inextricably Intertwined Evidence and Other Crimes Evidence Under Rule 404(b), 88 NW. U. L. REV. 1582, 1583 (1994).
55. See, e.g., FED. R. EVID. 404. A notable exception to this rule is the admissibility of character evidence in cases alleging sexual offenses. In these situations, the general rule is that evidence of a defendant's past activities that shows he has a propensity to commit the alleged sexual acts is admissible.
56. See id. R. 413(a).
57. Rules of Evidence for United States Courts and Magistrates, 56 F.R.D. 183, 221 (1973) (quoting Tentative Recommendation of the California Law Revision Commission Relating to the Uniform Rules of Evidence, 6 CAL. L. REVISION COMM'N REPS, RECOMMENDATIONS & STUD. 615 (1964)) (internal quotation marks omitted).
58. See Milner S. Ball, The Play's the Thing: An Unscientific Reflection on Courts Under the Rubric of Theater, 28 STAN. L. REV. 81, 81-83 (1975).
59. Of course, we already allow jurors to use these cues in deciding on the credibility of witnesses, even though it is difficult to determine the validity of nonverbal cues. See Robert K. Bothwell & Mehri Jalil, The Credibility of Nervous Witnesses, 7 J. SOC. BEHAV. & PERSONALITY 581, 583-85 (1992) (examining the effect of witness nervousness on perceptions of witness credibility and accuracy, and finding that "observer-based ratings of witness nervousness were not significantly correlated with actual witness identification [or testimonial] accuracy");
60. David Dryden Henningsen et al., Pattern Violations and Perceptions of Deception, 13 COMM. REP. 1, 8-9 (2000) (analyzing the manner in which nonverbal cues are perceived as deceptive by jurors, and suggesting that individuals may interpret deceptiveness based less on the mere presence of nonverbal cues, and more on a pattern of nonverbal cues). Moreover, law enforcement officers use nonverbal indicators to assess the credibility of their suspects' statements.
61. See John E. Hocking & Dale G. Leathers, Nonverbal Indicators of Deception: A New Theoretical Perspective, 47 COMM. MONOGRAPHS 119, 123-24 (1980)
62. (examining bodily movement, facial nervousness, and vocal nervousness). Even judges use physical cues to decide the honesty and dishonesty of statements. See James A. Forrest & Robert S. Feldman, Detecting Deception and Judge's Involvement: Lower Task Involvement Leads to Better Lie Detection, 26 PERSONALITY & SOC. PSYCHOL. BULL. 118, 122-24 (2000). This Article focuses on whether the behavioral and demeanor cues from a defendant should be used in deciding that person's guilt or innocence.
63. Elizabeth A. LeVan, Nonverbal Communication in the Courtroom: Attorney Beware, L. & PSYCHOL. REV., Spring 1984, at 83, 83.
64. Id.
65. See, e.g., SAUL M. KASSIN & LAWRENCE S. WRIGHTSMAN, THE AMERICAN JURY ON TRIAL: PSYCHOLOGICAL PERSPECTIVES 100-03 (1988) ("When it comes to juries ... if the evidence is ambiguous, people are more likely to vote guilty when the accused is unattractive and the victim is attractive than the other way around.");
66. Michael G. Efran, The Effect of Physical Appearance on the Judgment of Guilt, Interpersonal Attraction, and Severity of Recommended Punishment in a Simulated Jury Task, 8 J. RES. PERSONALITY 45, 45-52 (1974) (describing a study on the physical attractiveness of defendants);
67. LeVan, supra note 40, at 91-94 ("[P]hysical attractiveness could have an impact on jury decision making.");
68. see also Gloria Leventhal & Ronald Krate, Physical Attractiveness and Severity of Sentencing, 40 PSYCHOL. REP. 315, 315-17 (1977) (finding in a jury simulation that attractive defendants receive more lenient sentencing);
69. Lee Ross & Donna Shestowsky, Contemporary Psychology's Challenges to Legal Theory and Practice, 97 NW. U. L. REV. 1081,1083 n.9 (2003) (listing various studies on how "defendant characteristics" bias judges and juries).
70. But see Jennifer F. Orleans & Michael B. Gurtman, Effects of Physical Attractiveness and Remorse on Evaluations of Transgressors, 6 ACAD. PSYCHOL. BULL. 49, 53-54 (1984) (suggesting that the physical attractiveness of a witness may have less influence where the witness is male and the observer is female).
71. One psychological study defined "fidgeting" as "engaging in actions that are peripheral or nonessential to ongoing focal tasks or events." Albert Mehrabian & Shari L. Friedman, An Analysis of Fidgeting and Associated Individual Differences, 54 J. PERSONALITY 406, 406 (1986). Prominent lawyers have rejected the claim that fidgeting is a sign of guilt. As the renowned Daniel Webster proclaimed, "[miserable, miserable, indeed, is the reasoning which would infer any man's guilt from his agitation." HENRY HARDWICKE, THE ART OF WINNING CASES 155 (Albany, Banks & Co. 1899).
72. Mehrabian & Friedman, supra note 43, at 427-28 ("[F]idgeting tendency did relate to trait anxiety, hyperactivity, and some hostility measures.").
73. See generally Paul Ekman & Wallace V. Friesen, Hand Movements, 22 J. COMM. 353, 355-71 (1972) (classifying and describing different types of hand movements).
74. Id. at 357-58, 364-67.
75. Id.
76. See, e.g., Jinni A. Harrigan & Kristy T. Taing, Fooled by a Smile: Detecting Anxiety in Others, 21 J. NONVERBAL BEHAV. 203, 216 (1997) (finding that insincere smiles that are clearly visible to an observer may mask, and thereby cause the observer to fail to notice, a person's anxiety).
77. Cf. Paul Ekman & Wallace V. Friesen, Nonverbal Leakage and Clues to Deception, 32 PSYCHIATRY 88, 97 (1969) ("Eye-contacts ... which deviate in duration or frequency from the norm for a given social interaction can provide important deception clues ....").
78. Interestingly, there has been some focus on how a defendant's demeanor is changed by videoconferencing. The defendant's demeanor is a concern when deciding whether to allow videotaped appearances of defendants. See Anne Bowen Poulin, Criminal Justice and Videoconferencing Technology: The Remote Defendant, 78 TUL. L. REV. 1089, 1124-27 (2004).
79. See Vickie L. Feeman, Note, Reassessing Forced Medication of Criminal Defendants in Light of Riggins v. Nevada, 35 B.C. L. REV. 681, 681, 689-90 (1994) (describing the Court's concerns that a heavily medicated defendant may have involuntary facial expressions, tremors, spasms, and other movements that could affect the defendant's appearance and mannerisms in court).
80. 425 U.S. 501, 502 (1976). After an altercation between the defendant and his former landlord, a Texas state court convicted Williams of assault with intent to commit murder with malice. Id. at 502-03.
81. Before going to trial, the defendant asked an officer for civilian clothes to wear instead of the prison garb, but was denied the change of clothes and attended trial in the prison issue. Id. at 502.
82. Neither the defendant nor his counsel raised an objection to the clothing at trial. Id. The Court held that, while the State cannot, consistently with the Fourteenth Amendment, compel an accused to stand trial before a jury while dressed in identifiable prison clothes, the failure to make an objection to the court as to being tried in such clothes, for whatever reason, is sufficient to negate the presence of compulsion necessary to establish a constitutional violation.
83. Id. at 512-13.
84. Id.
85. Deck v. Missouri, 544 U.S. 622, 633 (2005). Carman Deck was convicted of robbing and shooting to death an elderly couple, and received a death sentence. Id. at 624-25.
86. The Missouri Supreme Court upheld his conviction, but ordered a new sentencing hearing. Id.
87. During the new sentencing hearing, Deck was forced to wear leg irons, handcuffs, and a bellychain, to which his counsel unsuccessfully objected three times. Id. Deck again received the death sentence.
88. Id. However, the United States Supreme Court overturned the death sentence holding that unless specific circumstances, such as security concerns, warrant shackling, "courts cannot routinely place defendants in shackles or other physical restraints visible to the jury during the penalty phase of a capital proceeding."
89. Id. at 633.
90. Id. at 633 ("The appearance of the offender during the penalty phase in shackles, however, almost inevitably implies to a jury, as a matter of common sense, that court authorities consider the offender a danger to the community . . . [and] almost inevitably affects adversely the jury's perception of the character of the defendant.").
91. 127 S. Ct. 649, 651-52 (2006).
92. Id. at 652.
93. Id. (citing Musladin v. Lamarque, 427 F.3d 653, 659-60 (9th Cir. 2005), vacated sub non.., Carey v. Musladin, 127 S. Ct. 649 (2006)). Under the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (codified as amended in scattered sections of 8, 18, 22, 28, and 42 U.S.C.), an application for federal habeas relief cannot be granted unless the defendant meets the threshold procedural requirement of showing that the state court decision "involved an unreasonable application of clearly established Federal law." 28 U.S.C. § 2254(d)(1) (2000).
94. Musladin, 127 S. Ct. at 651.
95. Id. at 650.
96. 475 U.S. 560 (1986).
97. Id. at 562.
98. Id. at 571.
99. Id. at 570 (quoting Estelle v. Williams, 425 U.S. 501, 505 (1976)).
100. See Musladin, 127 S. Ct. at 651. Following the Musladin decision, The New York Times called for courts to establish "uniform rules about what sort of spectator actions are impermissible."
101. Editorial, Lobbying the Jury, N.Y. TIMES, Dec. 13, 2006, at A32.
102. In his majority opinion, Justice Thomas noted that the "lower courts have diverged widely in their treatment of defendants' spectator-conduct claims." Musladin, 127 S. Ct. at 654. While the courts have not permitted courtroom demonstrations to convert trials into "sham" proceedings, they have tolerated spectator conduct that does nothing more than convey support for the victim.
103. See id. at 653 n.2, 654.
104. See id. at 656-57 (Kennedy, J., concurring);
105. id. at 657-58 (Souter, J., concurring). Justices Kennedy and Souter also acknowledged that a certain amount of spectator conduct can be expected and tolerated during a trial.
106. See id. at 656 (Kennedy, J., concurring);
107. id. at 658 (Souter, J., concurring). In Justice Souter's words, it is only when spectator conduct reaches "unacceptable" levels that it violates a defendant's right to a fair trial.
108. Id. at 658 (Souter, J., concurring).
109. Id. at 656 (Kennedy, J., concurring) ("The rule against a coercive or intimidating atmosphere at trial exists because 'we are committed to a government of laws and not of men,' under which it is 'of the utmost importance that the administration of justice be absolutely fair and orderly'. .. ."
110. (quoting Cox v. Louisiana, 379 U.S. 559, 562 (1965))). For Justice Kennedy, the preferred atmosphere for court is one of "calm and dignity." Id. at 656.
111. See, e.g., Norris v. Risley, 918 F.2d 828, 830-31 (9th Cir. 1990) (finding that spectators' buttons, which said "Women Against Rape," deprived the defendant of a fair trial);
112. Buckner v. State, 714 So. 2d 384, 389 (Fla. 1998) (recognizing that, "[u]nder certain circumstances, prejudicial exhibition of emotion may deprive a defendant of a fair trial," but holding that the brief showing of a picture of the victim by a spectator was not sufficiently prejudicial to change the outcome of the case).
113. See, e.g., People v. Chatman, 133 P.3d 534, 552 (Cal. 2006),
114. cert. denied, 127 S. Ct. 938 (2007) (providing an example of a judge who was willing to force a witness to leave should she continue to have emotional outbursts on the stand). Some judges go to extreme lengths to ensure that a victim's emotional display does not unfairly bias a juror. For example, in a Florida case, the judge warned the victims' mother not to cry in the courtroom, including on the witness stand: "Warned by the judge that tears could trigger a mistrial, a mother was stoic in front of a Florida jury ... as she relived the day she discovered the bloodied bodies of her children."
115. Emanuella Grinberg, Judge Warns Victims' Mother Not to Cry on Stand, CNN.COM, Sept. 13, 2006, http://www.cnn.com/2006/ LAW/09/13/no.crying/index.html. In order to ensure that the mother's testimony was sanitized enough, both sides agreed to let the mother "give her testimony outside the presence of the jury and then play a video of the testimony for the jury if it was deemed 'unemotional' enough."
116. Id.
117. See Gold, supra note 3, at 494-97. Lawyers use a variety of techniques to influence and persuade jurors. These techniques include scripting how the lawyers and their clients dress, speak, and interact with others in the courtroom.
118. See Pan, supra note 3, at 266-71. For example, a lawyer may come into the courtroom wearing a flamboyant tie to capture the jurors' attention.
119. Id. at 267.
120. Lawyers script their examinations to use the most powerful, effective language in front of the jury. Id. at 266.
121. They may also attempt to influence jurors by placing exhibits not admitted into evidence within jurors' line of sight. Id. at 271.
122. Jurors may even be influenced by the way in which a lawyer arranges his material on the table. Neat organization indicates to the jury that the attorney is prepared and under control. Paul Mark Sandler, Raising the Bar: "Beware of Bow Ties and Diamonds in Court," DAILY REC. (Balt., Md.), May 18, 2007, at 2B, available at http://www.shapirosher.com/news/BowtiesandDiamondsinCourt.htm. Even a lawyer's movements in the courtroom can be used to communicate subliminal messages to the jury. A lawyer who moves around during arguments may be perceived as more approachable and credible than a lawyer who stands behind a lectern.
123. Id. Finally, lawyers also use eye contact and facial expressions to communicate with jurors.
124. Id.
125. Gold, supra note 3, at 494-95 (citing Donald E. Vinson, Juries: Perception and the Decision-Making Process, TRIAL, Mar. 1982, at 52, 54);
126. see Pan, supra note 3, at 271.
127. Gold, supra note 3, at 494-95.
128. Ball, supra note 38, at 105.
129. See id.
130. See id. at 105-06.
131. FED. R. GRIM. P. historical note. The rules were adopted by order of the Supreme Court in 1944, were transmitted to Congress in 1945, and became effective in 1946. Id.
132. FED. R. EVID. historical note. The rules were adopted by order of the Supreme Court in 1972, were transmitted to Congress in 1973, and became effective in 1975. Id. Until these rules took effect,
133. courts relied on common law rules of evidence. Mark D. Rosen, What Has Happened to the Common Law? -Recent American Codifications, and Their Impact on Judicial Practice and the Law's Subsequent Development, 1994 WIS. L. REV. 1119, 1123-24.
134. As described in Professor Lawrence M. Friedman's seminal work, Crime and Punishment in American History, prior to the rules, juries were allowed more leeway in what they considered for their verdict. LAWRENCE M. FRIEDMAN, CRIME AND PUNISHMENT IN AMERICAN HISTORY 233-58 (1993). "Witnesses apparently had a good deal of leeway to tell their stories uninterrupted; there was less fussing over minor points of evidence than would be true today, less shadowboxing over rules of procedure; the judge's charge was looser, freer, more colloquial, more tailored to the particular case."
135. Id. at 237.
136. See LANGBEIN, supra note 35, at 253 ("The felony criminal trial retained its lawyer-free character into the 1730s. Citizen accusers confronted the accused in altercation-style trial. Prosecution counsel was virtually never used; defense counsel was forbidden. The accused conducted his own defense, as a running bicker with the accusers."). Langbein refers to these types of proceedings as "the 'accused speaks' trial [s]." Id.
137. Id.
138. Id. at 269-73.
139. Id. at 266-70.
140. Id. at 253-72.
141. See, e.g., JANICE SCHUETZ, THE LOGIC OF WOMEN ON TRIAL: CASE STUDIES OF POPULAR AMERICAN TRIALS 26-27 (1994). Defendants were also required to touch an alleged victim of their witchcraft to see if the touch triggered demonic fits. Id.
142. DAVID J.A. CAIRNS, ADVOCACY AND THE MAKING OF THE ADVERSARIAL CRIMINAL TRIAL 1800-1865, at 49 (1998).
143. Id.
144. Id. at 78.
145. See LAWRENCE M. FRIEDMAN, A HISTORY OF AMERICAN LAW 53 (3d ed. 2005) ("The early colonial years were not friendly years for lawyers. There were few lawyers among the settlers. In some colonies, lawyers were distinctly unwelcome. . . . [For example], [i]n Pennsylvania, it was said, 'They have no lawyers. Everyone is to tell his own case, or some friend for him ... 'Tis a happy country." (final omission in original)).
146. See, e.g., THOMAS ANDREW GREEN, VERDICT ACCORDING TO CONSCIENCE: PERSPECTIVES ON THE ENGLISH CRIMINAL TRIAL JURY, 1200-1800, at 174-75 (1985) (describing a case in which a pro se litigant successfully argued and persuaded the jury to find him not guilty).
147. Jurors could even play a role in establishing the defendant's character by testifying during the very cases in which they sat as jurors. See LANGBEIN, supra note 35, at 319-20.
148. Such judgments may also be the psychological remnants of trials by ordeal in which a defendant's fate relied more on his physical reactions than on the evidence presented against the defendant. See Stephan Landsman, A Brief Survey of the Development of the Adversary System, 44 OHIO ST. L.J. 713, 717-21 (1983)
149. (recounting the history of trials by ordeal); Trisha Olson, Of Enchantment: The Passing of the Ordeals and the Rise of the Jury Trial, 50 SYRACUSE L. REV. 109, 115-22 (2000) (same).
150. While "demeanor" most frequently refers to a testifying witness's facial expressions and body language, some courts have recognized that the term also applies to the conduct, expression, and reactions of nonwitnesses sitting in the courtroom. See, e.g., United States v. Schipani, 293 F. Supp. 156, 163 (E.D.N.Y. 1968),
151. aff'd, 414 F.2d 1262 (2d Cir. 1969).
152. Richard A. Serrano, McVeigh Gets Death, L.A. TIMES, June 14, 1997, at A1 (discussing the comments of a juror following the criminal trial of Timothy McVeigh) (internal quotation marks omitted).
153. Jurors: Evidence, Peterson's Demeanor "Spoke for Itself," CNN.COM, Dec. 14, 2004, http://www.cnn.com/ 2004/LAW/12/13/jury.reax/index.html (discussing the comments of a juror who pointed to Scott Peterson's demeanor in the courtroom as affecting her decision to find him guilty of murdering his wife) (internal quotation marks omitted).
154. Mark Katches, Potential Panelists See a Confident, Smiling Defendant, DAILY NEWS (L.A.), Sept. 28, 1994, at N8, available at 1994 WLNR 1361430 (quoting Erwin Chemerinsky on the first week of voir dire in O.J. Simpson's criminal trial) (internal quotation marks omitted).
155. American Morning: Verdict in for Scott Peterson (CNN television broadcast Dec. 14, 2004) (LEXIS transcript no. 121404CN.V74) (quoting a statement from Jeffrey Toobin, CNN Senior Legal Analyst).
156. See Lorena Bobbit Trial: Day 3, pt. 10 (CNN television broadcast Jan. 12, 1994) (LEXIS transcript no. 582-3);
157. see also David Margolick, Witnesses Say Mutilated Man Often Hit Wife, N.Y. TIMES, Jan. 12, 1994, at A10 (describing the courtroom proceedings on the second day of trial).
158. See Ann W. O'Neill & Nicholas Riccardi, Menendez Brothers Sentenced to Life for Killing Parents, L.A. TIMES, Apr. 18, 1996, at A1 (discussing the jury's decision not to sentence the Menendez brothers to death).
159. See Jurors Want to Ask McVeigh "Why?': Explanation at Trial of Anger over Waco Just Wasn't Enough, ST. LOUIS POST-DISPATCH, June 16, 1997, at 4A (discussing the jury's decision to sentence McVeigh to death);
160. Jo Thomas, Agony Relived as U.S. Pursues McVeigh Death, N.Y. TIMES, June 5, 1997, at A1 (discussing the testimony of the victims' family members in the Oklahoma City bombing).
161. See Man Gets Death Sentence for Killing Cellmate, L.A. TIMES, Apr. 4, 1993, at 6, available at 1993 WLNR 3974634 (discussing the details of Danks's crime, conviction, and subsequent death sentence).
162. Bobbitt's Wife Guilty, Says Poll, S.F. EXAMINER, Jan. 16, 1994, at A-5;
163. see Hinds, supra note 15. Both sides tried to influence the jury with their presentations of the parties. For example, John Bobbitt dressed without a tie (a phallic symbol) to look less powerful and more like someone who would never attack his wife. Id.
164. See supra Part I.A.
165. See Bobbin's Wife Guilty, Says Poll, supra note 102.
166. Lyle and Erik Menendez became the subject of one of the most sordid, publicized murder cases in history when they went on trial for killing their parents with a shotgun in their family's Beverly Hills mansion in 1989.
167. See Sally Ann Stewart, Beverly Hills Horror Story; Brothers Say Parents' Abuse Led Them to Kill; Defense Says Good Life Was Just a Facade, USA TODAY, Sept. 21, 1993, at 1A. The brothers attempted to justify murdering their parents by asserting that their parents had sexually abused them and that the brothers were afraid for their lives.
168. Id. Their first trial ended in a hung jury when the jury could not agree on whether the defendants committed murder or manslaughter. O'Neill & Riccardi, supra note 99. On retrial, they were both convicted of murder and sentenced to life in prison.
169. Id.
170. Stewart, supra note 105.
171. Id.; see also THORNTON, supra note 11, at 73-74 (stating that the jurors noticed the brothers' dress, references to "boys," and the defense counsel's maternal behavior and guessed that it was likely to elicit juror sympathy).
172. See THORNTON, supra note 11, at 9. Of course, it is impossible to know why Menendez cried when his mother was mentioned. Like other nontestimonial demeanor, a defendant may be reacting because he is genuinely saddened by the loss of his mother or because he regrets his involvement in her death. Even the sincerest of reactions can be confusing to jurors. They add an emotional dimension to the case, but do little to answer key factual questions in a case.
173. Id. at 25.
174. Id. at 47.
175. Id. at 85 (describing how Erik was mortified when readback testimony focused on him being a homosexual). One of the most interesting parts of Thornton's book is the "Psychological Commentary on the Diary" provided by two noted social scientists, Lawrence S. Wrightsman and Amy J. Posey.
176. See id. at 99. Using Thornton's diary, Wrightsman and Posey attack some of the basic assumptions we have about jurors and how they decide cases.
177. Id. at 101-03.
178. For example, they attack the assumption that jurors focus only on admissible evidence during trial. Id. at 108.
179. Specifically, they note that jurors look to the reaction of the defendant while someone is testifying against him or her and may be influenced by the physical appearance of the trial participants. Id. at 111.
180. Thornton notes in her diary that jurors discussed the fact that the defendants wore sweaters and that Leslie Abramson (defense counsel) often engaged in maternal behavior when interacting with Erik Menendez. Id. at 111-12.
181. The jurors also recognized, however, that these actions may have been a ploy to elicit juror sympathy. Id.
182. Id. at 112.
183. Timothy McVeigh was convicted of all eleven counts of bombing the Oklahoma City federal building. See James Collins, Day of Reckoning: The Jury that Found McVeigh Guilty Wrestles with Emotion and Tears as It Prepares to Decide His Fate, TIME, June 16, 1997, at 26 (discussing the sentencing phase of the McVeigh trial). Jurors reported being influenced by McVeigh's icy composure as prosecutors argued that he should be sentenced to death.
184. See Killer Maintains Icy Composure, Waves to Parents, PLAIN DEALER (Cleveland), June 14, 1997, at 1-A.
185. Judicial Council of California Criminal Jury Instructions [CALCRIM] No. 763 (2007), available at http://www.courtinfo.ca.gov/jury/ criminaljuryinstructions/calcrim_juryins.pdf;
186. see also CAL. PENAL CODE § 190.3 (West 1999);
187. Tuilaepa v. California, 512 U.S. 967, 972 (1994) (noting that, during the selection stage of capital cases, the jury must make "an individualized determination on the basis of the character of the individual and the circumstances of the crime." (quoting Zant v. Stephens, 462 U.S. 862, 879 (1983)) (internal quotation marks omitted));
188. People v. Ramos, 938 P.2d 950, 970-71 (Cal. 1997) (noting that, in a capital case, the sentencer may evaluate the defendant's lack of remorse and overt indifference or callousness toward his misdeeds).
189. See Scott E. Sundby, The Capital Jury and Absolution: The Intersection of Trial Strategy, Remorse, and the Death Penalty, 83 CORNELL L. REV. 1557, 1561-66 (1998) (providing a sampling of juror statements indicating that one of the primary factors used by jurors in deciding that a death penalty defendant lacked remorse and therefore deserved to die was the jurors' perceptions of the defendant's flat and nonchalant behavior at trial). While it may not be surprising that jurors in death penalty cases scrutinize a defendant's courtroom demeanor to assess the defendant's character and his level of remorse, it is surprising that courts do not issue standardized instructions to jurors to disabuse them of the notion that a defendant's demeanor in the courtroom may not actually reflect the defendant's true character, including the defendant's level of remorse or likelihood of future dangerousness. For years, defense counsel have been concerned that jurors' decisions are improperly influenced in death penalty cases by a defendant's demeanor, and rightfully so.
190. See Brief for the American Bar Ass'n as Amicus Curiae Supporting Petitioner at 12-14, McCarver v. State, 532 U.S. 941 (2001) (No. 00-8727), cert. dismissed, 533 U.S. 975 (2001). During the capital murder trial of John Paul Penry, the mentally retarded defendant '"sat at the defense table and drew pictures' while the prosecutor summed up why Penry should be sentenced to die."
191. Id. (quoting ROBERT PERSKE, UNEQUAL JUSTICE? 19, 21-22 (1991)). During the trial of Anthony Porter, the mentally retarded defendant would, '"walk[] into a room slowly, real cool, like some streetwise punk, a smirk on his face, eyes shifting back and forth, as if he [was] on to something or in on a big secret'-clearly inappropriate behavior from someone accused of a heinous crime."
192. Id. (quoting Eric Zorn, Questions Persist as Troubled Inmate Faces Execution, CHI. TRIB., Sept. 21, 1998, at MetroChicago 1);
193. see also State v. Rizzo, 833 A.2d 363, 431-32 (Conn. 2003) ("Among the factors that may be considered by a court at a sentencing hearing are the defendant's demeanor and his lack of veracity and remorse as observed by the court during the course of the trial on the merits." (quoting State v. Anderson, 561 A.2d 897, 905 (Conn. 1989)) (internal quotation marks omitted));
194. Schiro v. State, 479 N.E.2d 556, 559-60 (Ind. 1985) (holding that the trial judge did not violate the defendant's due process rights or Fifth Amendment right against self-incrimination when he considered the defendant's continuous rocking motions during trial in sentencing the defendant to death).
195. Victoria Loe, McVeigh Gives Observers Little to Go on in Court: Defendant's Demeanor Leaves Reporters, Families Guessing, DALLAS MORNING NEWS, Apr. 12, 1997, at 1A.
196. CBS This Morning: Oklahoma City Bombing Jury in Deliberations to Decide Whether Timothy McVeigh Should Get the Death Penalty (CBS television broadcast June 13, 1997).
197. Killer Maintains Icy Composure, Waves to Parents, supra note 113.
198. Jurors' Enduring Question: Why? But Little Wavering When It Came Time for Their Decision, USA TODAY, June 16, 1997, at 4A.
199. Tom Kenworthy & William Booth, Bomb Jurors Profoundly Affected: Sympathy Declared for Oklahomans, WASH. POST, June 15, 1997, at A1.
200. This problem with a defendant's demeanor may also occur in noncapital cases. For example, in the case of George Weller, the eighty-nine-year-old man convicted of killing ten people by crashing his car through a farmer's market in Santa Monica, California, did not even attend most of the trial because of his poor health.
201. See Spano, supra note 5. Nonetheless, some experts believe that the jurors held Weller's absence against him because he did not come to court, sit through the evidence, and thereby show remorse for his actions.
202. See id. (referencing comments of Ken Broda-Bahm, President of the American Society of Trial Consultants).
203. The three cases referred to include the trials of the Menendez brothers, Timothy McVeigh, and Lorena Bobbitt.
204. 82 P.3d 1249 (Cal. 2004).
205. Id. at 1262 n.3.
206. Id. Remarkably, this was not the first time Danks tried to stab his lawyer,
207. See Edwin Chen, Killer of 6 Transients Pleads Guilty in Deal, Gets Life Prison Term, L.A. TIMES, Dec. 3, 1988, at Metro 3. In a previous trial for the murders of six transients in the Los Angeles area, Danks cut his attorney in the face before being subdued. Id.
208. The courtroom stabbing incident is only discussed in a footnote in the court's opinion, even though Danks referred to the incident during his own testimony before the jury. Danks, 82 P.3d at 1262 n.3.
209. Id.
210. See, e.g., CAL. PENAL CODE § 190.3 (West 1999);
211. Brown v. Payton, 544 U.S. 133, 136-38 (2005);
212. Ring v. Arizona, 536 U.S. 584, 588 (2002);
213. People v. Medina, 906 P.2d 2, 44-47 (Cal. 1995).
214. See infra Part III.
215. Transcript of Record at 6494-96, People v. Spector, (Cal. Super. Ct. June 28, 2007) (No. BA255233).
216. Id.
217. Id.
218. For these courts, as well as for the legendary John Henry Wigmore, it is both unrealistic and counterproductive to assume that jurors can be "mentally blind" to a defendant's demeanor off the stand. See 2 JOHN HENRY WIGMORE, EVIDENCE § 274(2), at 119-20 (4th ed. 1979) (advocating that a defendant's demeanor off the witness stand and in the courtroom should be considered admissible evidence).
219. 813 F.2d 978 (9th Cir. 1987) (2-1 decision).
220. See id. at 981.
221. See id. at 983-84 (Hall, J., dissenting) (stating that it is "well-settled" that a defendant's "courtroom demeanor is evidence").
222. See id. at 979 (majority opinion).
223. Id.
224. Id.
225. Id.
226. Id.
227. Id. (alteration in original).
228. Id.
229. See id. at 982-83. Defense counsel had argued several grounds for reversible error, including that the prosecutor's comments improperly constituted an indirect comment on the defendant's failure to testify at trial.
230. See id. at 979-80 (setting forth the issues on appeal). The court, however, did not rest its decision solely on that argument. In a footnote, the court noted that other courts have rejected claims that a prosecutor's comments on the "expressionless courtroom demeanor of a defendant" necessarily constitutes an indirect comment on the defendant's failure to testify.
231. See id. at 980 n.1 (citing Borodine v. Douzanis, 592 F.2d 1202, 1210-11 (1st Cir. 1979);
232. Bishop v. Wainwright, 511 F.2d 664, 668 (5th Cir. 1975)).
233. See generally Brett H. McGurk, Prosecutorial Comment on a Defendant's Presence at Trial: Will Griffin Play in a Sixth Amendment Arena?, 31 UWLA L. REV. 207, 244-50 (2000) (discussing the factfinder's use of a defendant's demeanor in the courtroom). Judge Boochever wrote, "we doubt that jurors would construe the prosecutor's comment on Schuler's laughter as referring to his failure to testify." Schuler, 813 F.2d at 982. Although the court was concerned that allowing prosecutors to comment on a defendant's demeanor may force a defendant to testify to explain his courtroom demeanor,
234. id. at 982, the focus of the court's decision was on the broader issue in the case: are comments regarding a defendant's demeanor improper because they impermissibly convict a defendant on the basis of information that cannot be considered evidence from the witness stand?
235. See Schuler, 813 F.2d at 980-81.
236. See, e.g., United States v. Wright, 489 F.2d 1181, 1186 (D.C Cir. 1973).
237. See Schuler, 813 F.2d at 981-82.
238. Id. at 981. In support of its holding, the court noted that the Eleventh Circuit had also confronted the issue of a prosecutor commenting during closing arguments on the defendant's behavior off the witness stand.
239. Id. (citing United States v. Pearson, 746 F.2d 787 (11th Cir. 1984)). In United States v. Pearson, the prosecutor argued: "Does it sound to you like [the defendant] was afraid? You saw him sitting there in the trial. Did you see his leg going up and down? He is nervous. (Appellant's objection overruled) You saw how nervous he was sitting there. Do you think he is afraid?" 746 F.2d at 796 (quoting Transcript of Record at 145-46, Pearson, 746 F.2d 787 (No. 83-5161)).
240. The Pearson court held that the prosecutor's statement gave the jury the wrong impression that the defendant's behavior off the witness stand was evidence and, as a result, violated the defendant's right to be convicted only on the evidence introduced at trial. Id. See generally Taylor v. Kentucky, 436 U.S. 478, 490 (1978) (holding that the trial court's failure to issue a requested instruction on the defendant's presumption of innocence violated his right to a fair trial as guaranteed by the Due Process Clause of the Fourteenth Amendment).
241. The Schuler court also relied on United States v. Carroll, 678 F.2d 1208, 1210 (4th Cir. 1982), and Wright, 489 F.2d at 1186. Schuler, 813 F.2d at 980-81. In both cases, the courts held that the defendants' conduct off the witness stand was not legally relevant to the question of their guilt or innocence for the crimes with which they were respectively charged.
242. See Carroll, 678 F.2d at 1209-10;
243. Wright, 489 F.2d at 1186.
244. Schuler, 813 F.2d at 981.
245. Id.
246. See id. at 984 (Hall, J., dissenting).
247. See id. at 979 (majority opinion).
248. See id. at 980.
249. See supra notes 25-30 and accompanying text.
250. Schuler, 813 F.2d at 983 (Hall, J., dissenting)
251. (quoting 2 WIGMORE, supra note 133, § 274(2), at 119-20) (alteration in original).
252. See id. ("In this case, Schuler's bizarre behavior in the courtroom lends credence to the government's claim that his threat was indeed serious.").
253. See id. at 979 (majority opinion).
254. See id. at 985 (Hall, J., dissenting).
255. See id. at 984.
256. Federal Rule of Evidence 404(b) provides: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity there-with. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial. FED. R. EVID. 404(b).
257. Rule 404(b) is considered an exception to the general rule that character evidence may not be used to demonstrate the propensity of a defendant to commit a crime. See, e.g., United States v. Matthews, 431 F.3d 1296, 1319 (11th Cir. 2005),
258. cert, denied, 127 S. Ct. 46 (2006).
259. Because the rule allows for the introduction of specific acts to prove specific issues, it does not allow the parties to argue simply that because the defendant did something wrong before, he must have done it again. See, e.g., United States v. Castillo, 140 F.3d 874, 879 (10th Cir. 1998) (stating that in certain cases, Rule 414 replaces Rule 404(b) and allows the prosecution to use evidence of the defendant's prior acts).
260. Rather, the incident tends to prove a specific point, such that the defendant acted intentionally with regard to a specific act. See Schuler, 813 F.2d at 984 (Hall, J., dissenting).
261. In the context of a defendant's demeanor in the courtroom, proponents of the evidence argue that the defendant's demeanor evidence is evidence of "other acts" that can explain whether the defendant's actions for which he is charged were intentional. See, e.g., id.
262. Thus, because the defendant laughs in the courtroom over references to his prior threats, jurors can infer that those threats were serious and intentional. See id. at 984-85.
263. FED. R. EVID. 404(b).
264. 741 A.2d 495, 499 (Md. Ct. Spec. App. 1999).
265. In Bryant, the defendant was convicted of first-degree murder, attempted first-degree murder, and two counts of using a handgun in the commission of a felony. Id. at 498.
266. He received a life sentence for the murder conviction and concurrent sentences for the remaining convictions. Id.
267. Id. at 498-99 (second alteration in original).
268. During the criminal trial, the prosecution's principal witness Florence Winston testified that she witnessed the shooting, and that she spoke with the defendant the following morning. Id. at 497.
269. Winston testified that the defendant '"looked nervous"' and apologized for shooting in her direction the night before. Id.
270. Winston was a "self-described 'dope-fiend'" who sold crack cocaine to support her drug habit, and she had agreed to testify against the defendant in exchange for assistance with theft and probation violation charges that were pending against her. Id. at 497-98.
271. During closing arguments, the prosecutor acknowledged Winston's self-interested motive for testifying, and conceded that "Winston's lifestyle was not exemplary." Id. at 498.
272. The prosecutor then tried to corroborate and lend credibility to Winston's testimony by highlighting the defendant's demeanor during Winston's testimony, Id.
273. Id. at 501-03.
274. Id. at 499-500.
275. Id. at 500 (citations omitted).
276. Id.
277. But see Brothers v. State, 183 So. 433, 436 (Ala. 1938) (holding that the defendant's courtroom demeanor is a proper subject of comment where the defendant's sanity was a primary issue in the case and the defendant may have been seeking to create an impression of insanity through his demeanor before the jury);
278. Campbell v. State, 501 A.2d 111, 114 (Md. Ct. Spec. App. 1985) (holding that "[t]he circumstances and the nature and language of the comment" may justify an exception to the general rule that statements regarding the defendant's personal appearance are improper except with regard to the defendant's appearance while testifying or where the defendant's identity is at issue).
279. Hughes v. State, 437 A.2d 559, 572 (Del. 1981).
280. Id. at 563, 576.
281. Robert D. Hughes was charged with the first-degree murder of his wife. Id. at 564.
282. The victim was found lying in the driveway near the rear of defendant's house, after Hughes called the police department to report that he needed an ambulance. Id. at 562.
283. When the police arrived, they found the victim covered in blood, with a rope around her neck. Id.
284. She had suffered two blows to the head, but the cause of death was ligature strangulation. Id.
285. Hughes did not testify, but he told the police that he found his wife's body in the driveway. Id. at 563.
286. The prosecution built its case on circumstantial evidence. The victim's father testified that the rope used in the strangling was the same rope that had been attached to his grandson's wagon. Id.
287. Defendant had also given some curious statements to the police. For example, when asked about the possibility that blood might be found in his house or on his clothing, he stated that it was because his wife had a heavy menstrual flow recently or because he played with a neighbor's dog that was in heat. Id. at 564.
288. A neighbor testified that on the night of the murder, he had heard what he believed was a man and a woman arguing. Id. at 565.
289. Other witnesses testified as to Hughes' reaction to the murder, with the conflicting testimony "ranging from 'he showed no emotion' to descriptions of shock, tears and distress." Id.
290. There was also physical evidence suggesting that the blanket covering the victim's body had been placed there earlier than when Hughes admitted he had found the body. Id. at 565-66.
291. Id. at 572.
292. Id.
293. Id.
294. As the court noted, it is dangerous to assume that there is such a thing as a model of "normal" courtroom behavior. "[O]ne may reveal or conceal emotion for innumerable reasons, and a defendant should not be subjected to a guilty verdict because his courtroom appearance did not comport with the prosecution's notion of a norm." Id.
295. Id.;
296. see also Craig v. United States, 81 F.2d 816, 829 (9th Cir. 1936) (stating that asking jurors to keep an eye on defendant's demeanor during closing arguments was ill-advised, but not reversible error);
297. People v. Garcia, 206 Cal. Rptr. 468, 472-75 (Ct. App. 1984) (finding that the prosecutor acted improperly in referring to defendant's courtroom behavior);
298. Baldez v. State, 679 So. 2d 825, 826 (Fla. Dist. Ct. App. 1996) ("It is improper for a prosecutor to comment on the defendant's demeanor when he is not on the witness stand."
299. (citing Pope v. Wainwright, 496 So. 2d 798, 802 (Fla. 1986)));
300. Blue v. State, 674 So. 2d 1184, 1213-15 (Miss. 1996) (explaining that the prosecutor may not comment on the nontestifying defendant's demeanor and appearance during trial).
301. Baldez, 679 So. 2d at 826-27.
302. See supra notes 147-50 and accompanying text.
303. Baldez, 679 So. 2d at 827.
304. The Florida courts had previously held that a prosecutor cannot comment on a defendant's demeanor when the defendant is not on the witness stand. See Wainwright, 496 So. 2d at 802 (finding that the prosecutor erred by arguing in closing argument that the defendant was "grinning from ear-to-ear" during the trial).
305. See United States v. Schuler, 813 F.2d 978, 980-81 (9th Cir. 1987).
306. In addition to these legal grounds for reversal, defendants also try to claim that their Fifth Amendment privilege not to testify is violated by the prosecutor's reference to the defendant's courtroom demeanor. See U.S. CONST,
307. amend. V. However, this argument is ordinarily rejected because the prosecutor's remark is not viewed as a comment on the defendant's failure to testify, but rather a comment on what the defendant otherwise communicated to the jury during trial. See, e.g., Schuler, 813 F.2d at 982;
308. Hughes, 437 A.2d at 573.
309. 2 WIGMORE, supra note 133, § 274(2), at 119-20 (arguing that demeanor off the witness stand and in the courtroom is admissible evidence and dismissing as unrealistic the belief that jurors can be "mentally blind" to demeanor off the stand).
310. Lynne Tuohy, A Furor over Juror's Remark Proceedings Stalled by Alleged Comments from Skakel, HARTFORD COURANT, May 24, 2002, at B7 (internal quotation marks omitted).
311. Skakel was convicted of murder twenty-five years after he bludgeoned his teenage neighbor to death with a golf club because she had spurned his advances. See generally Kennedy Cousin on Trial, COURTTV.COM, http://www.courttv.com/trials/moxley/index.html (last visited Nov. 25, 2007) (providing access to various articles regarding the Skakel murder case).
312. Tuohy, supra note 178.
313. Id.
314. Commonwealth v. Smith, 444 N.E.2d 374, 380 (Mass. 1983).
315. The defendant received a life sentence after being convicted of murder, arson and armed robbery. Id. at 376.
316. The Massachusetts Supreme Judicial Court ordered a reversal and a new trial because of prosecutorial misconduct. Id.
317. However, the court found proper the prosecutor's comments on the defendant's demeanor, simply stating, "[t]he jury were entitled to observe the demeanor of the defendant during the trial." Id. at 380.
318. 358 S.E.2d 1, 12 (N.C. 1987).
319. Id. at 8.
320. Id. at 14.
321. Id. at 13.
322. Id. at 15.
323. Id.
324. See supra notes 155-59 and accompanying text.
325. Brown, 358 S.E.2d at 15.
326. Id.;
327. see Bishop v. Wainwright, 511 F.2d 664, 668 (5th Cir. 1975) (stating it is permissible to refer to defendant's expressionless courtroom demeanor);
328. Wherry v. State, 402 So. 2d 1130, 1133 (Ala. Crim. App. 1981) (holding that the prosecutor's comments during closing argument highlighting the defendant's demeanor in order to challenge her plea of insanity were a proper subject of comment rather than an improper attempt to draw attention to defendant's failure to testify);
329. State v. Myers, 263 S.E.2d 768, 773-74 (N.C. 1980) (finding that the prosecutor's comments on the defendant's reactions to photographs of his murdered wife were permissible since his demeanor was "before the jury at all times").
330. People v. Bizzell, No. A104615, 2005 WL 2842055, at *5 (Cal. Ct. App. Oct. 31, 2005).
331. Bizzell was convicted of assault, attempted murder, and other crimes after he attacked his ex-girlfriend by choking her and holding a knife to her throat. Id. at *2-3.
332. During the trial, Bizzell frequently interrupted the proceedings by making comments or laughing at statements. Id. at *4.
333. The court sustained several objections to Bizzell's answers when on the stand, including that they were often narrative, nonresponsive, or that no question was pending. Id.
334. Id. at *8.
335. See id. at *6 ("[W]e all know why we're here, power and control. The defendant's conduct shows that. It shows that when he took the stand, it shows that throughout this whole event .... He's out of control. You saw that." (internal quotation marks omitted)).
336. Id. at *6-8.
337. Id. at *7-8.
338. 48 M.J. 64, 65 (C.A.A.F. 1998).
339. Id.
340. Id. (footnote omitted).
341. Id.
342. Id. at 66-67.
343. Id.
344. Id. at 65
345. (citing JEFFREY L. KESTLER, QUESTIONING TECHNIQUES AND TACTICS §§ 3.34-.39, at 160-67 (2d ed. 1992)).
346. Id. at 66.
347. Id.
348. The court cited in support of its position John Henry Wigmore who "championed the view that demeanor off the witness stand and in the courtroom is admissible evidence.... [John Henry Wigmore] dismissed as fiction the belief that the jurors can be 'mentally blind' to demeanor off the stand." Id. (
349. quoting 2 WIGMORE, supra note 133, § 274(2), at 119-20).
350. Id.
351. Id. at 65.
352. See id. at 66.
353. The court cited Schuler for this principle, as well as two other cases in which the prosecutor was found to have improperly commented on a defendant's consultations with his lawyer during trial, United States v. Carroll, 678 F.2d 1208, 1210 (4th Cir. 1982),
354. or on the defendant's nervous leg actions during trial, United States v. Pearson, 746 F.2d 787, 796 (11th Cir. 1984).
355. Cook, 48 M.J. at 67.
356. Id. at 66.
357. Prosecutor Christopher Darden's ill-fated use of a courtroom demonstration with the "bloody glove" during the O.J. Simpson murder trial provides a perfect example of the use (or misuse) of nonverbal communication. Wanting the jury to understand that the extensive "DNA evidence figuratively put the gloves on Simpson," Darden had Simpson try the glove on, which apparently did not fit. Stephen D. Easton, Lessons Learned the Hard Way from O.J. and "The Dream Team," 32 TULSA L.J. 707, 732-33 (1997)
358. (discussing the O.J. Simpson trial and reviewing CHRISTOPHER A. DARDEN WITH JESS WALTER, IN CONTEMPT (1996)).
359. See generally DARDEN WITH WALTER, supra. The implication of the glove fitting or not fitting had a particular role (whether or not it was O.J.'s) and could be fairly interpreted (if it did not fit, it did not belong to O.J.).
360. Courts tend to accept such evidence as proper "demonstrative evidence" that may be considered by the jury, See, e.g., People v. Williams, 201 N.W.2d 286, 287-88 (Mich. Ct. App. 1972) (stating that the prosecutor was allowed to comment on the defendant's efforts not to grin and show his teeth because the robbery suspect had been identified as having bad teeth).
361. Professors Robert Brain and Daniel Broderick define demonstrative evidence as "any display that is principally used to illustrate or explain other testimonial, documentary, or real proof, or a judicially noticed fact. It is, in short, a visual (or other sensory) aid." Robert D. Brain & Daniel J. Broderick, The Derivative Relevance of Demonstrative Evidence: Charting Its Proper Evidentiary Status, 25 U.C. DAVIS L. REV. 957, 968-69 (1992).
362. Their work recognizes demonstrative evidence as an analytically separate class of evidence. Id. at 967-72.
363. They, highlight the defining characteristic of the evidence as being derivative in relevance, in that it has a "secondary or derivative function" because it is only used to explain other previously introduced evidence. Id. at 961.
364. See United States v. Robinson, 523 F. Supp. 1006, 1012 (E.D.N.Y. 1981), aff'd, 685 F.2d 427 (2d Cir. 1982).
365. Id. at 1011-12.
366. See, e.g., United States v. Gatto, 995 F.2d 449, 454-55 (3d Cir. 1993) (explaining that jurors may note threats or intimidation of witnesses);
367. United States v. Maddox, 944 F.2d 1223, 1226, 1229-30 (6th Cir. 1991) (finding that jurors may consider the defendant's alleged mouthing of the words "you're dead");
368. United States v. Mickens, 926 F.2d 1323, 1328-29 (2d Cir. 1991) (stating that the defendant's hand gesture in the shape of a gun may be considered by the jury).
369. United States v. Schuler, 813 F.2d 978, 979 (9th Cir. 1987).
370. United States v. Cook, 48 M.J. 64, 66 (C.A.A.F. 1998).
371. Id.
372. Id. at 67.
373. The court, however, did not overturn the conviction since the trial defense counsel could have objected to the comment and because the remarks did not constitute plain error. Id.
374. 746 F.2d 787 (11th Cir. 1984).
375. Id. at 796.
376. Id.
377. See Douglas G. Smith, The Historical and Constitutional Contexts of Jury Reform, 25 HOFSTRA L. REV. 377, 479-83 (1996) (stating that because of the judge's position of authority, jurors often ascribe too much weight to the judge's comments, thereby affecting the defendant's right to an "impartial" hearing).
378. See generally Jack B. Weinstein, The Power and Duty of Federal Judges to Marshall and Comment on the Evidence in Jury Trials and Some Suggestions on Charging Juries, 118 F.R.D. 161 (1988) (discussing the propriety and necessity of commenting on evidence by federal trial judges).
379. When a judge comments on matters at trial, a standard instruction given to the jury is: "You are not to consider any statements or rulings which I have made during the course of this trial as indicating that I believe the verdict should be one way or the other. I have no opinion, and even if I did, it would be wholly irrelevant." 1 LEVENTHAL, supra note 31, § 4:76.
380. See United States v. Cook, 48 M.J. 64, 66-67 (C.A.A.F. 1998) (allowing nonverbal communication to be considered evidence only when it is relevant and can be fairly interpreted).
381. See Pearson, 746 F.2d at 796 (referring to the defendant's nervous leg action during trial).
382. See id. at 66.
383. United States v. Carroll, 678 F.2d 1208, 1209-10 (4th Cir. 1982).
384. Id. at 1209.
385. The court noted that the record was "devoid of any evidence, aside from the prosecutor's assertion, that the defendant knew more about the photographs [about which he consulted counsel] than did his lawyer." Id. at 1210.
386. As Professor Imwinkelried notes, courts have not even been consistent in how they have treated the demeanor of witnesses while they are not testifying. See Edward J. Imwinkelried, Demeanor Impeachment: Law and Tactics, 9 AM. J. TRIAL ADVOC 183, 196-97 (1985) (stating that some courts allow jurors to consider a witness's demeanor "in or about the courtroom").
387. See, e.g., David Landy & Elliot Aronson, The Influence of the Character of the Criminal and His Victim on the Decisions of Simulated Jurors, 5 J. EXPERIMENTAL SOC. PSYCHOL. 141, 146-51 (1969) (demonstrating the effect of the attractiveness of defendants and victims on simulated juries);
388. Susanne Shay, Effects of Defendant Character and Juror Authoritarianism on the Decision Making Process 20-29 (July 1987) (unpublished Ph.D. dissertation, Temple University), microformed on GETINFO (Univ. Microforms Int'l) (analyzing the effect of defendant attractiveness on jury decisions).
389. See LANGBEIN, supra note 35, at 253.
390. MOORE, supra note 32, at 40 (stating that, in the first jury trials, the jurors were "witnesses summoned from the neighborhood").
391. The change was slow, and began with parties putting on their case but with no distinction among pleadings, evidence, and argument. See id. at 56.
392. The criminal trial continued to change throughout the last four centuries, and continues to evolve today. See HANS & VIDMAR, supra note 6, at 43 (describing the jury as being "in a process of continual evolution");
393. B. Michael Dann & George Logan III, Jury Reform: The Arizona Experience, 79 JUDICATURE 280, 280-83 (1996) (describing possible jury reforms);
394. B. Michael Dann, "Learning Lessons"and "Speaking Rights": Creating Educated and Democratic Juries, 68 IND. L.J. 1229, 1247-79 (1993) (same);
395. Valerie P. Hans, U.S. Jury Reform: The Active Jury and the Adversarial Ideal, 21 ST. LOUIS U. PUB. L. REV. 85, 87-97 (2002) (same).
396. Studies indicate that jurors can easily misinterpret behavior in the courtroom because of their expectations of how people are to act in the courtroom setting. See Searcy et al., supra note 14, at 42-45.
397. If a defendant is unaware of those expectations, behavior that might be interpreted as humorous or eccentric outside the courtroom may be viewed as inappropriate and inculpatory inside the courtroom. Id. at 49-50.
398. In a key study on how demeanor and nonverbal communication affects jurors' decisions, Professor Michael Saks, a professor of law and psychology, found that "demeanor cues often reduce accuracy in detecting
399. Additionally, attractive people are seen as more honest than unattractive people, and symmetrical faces more honest than asymmetrical. See Denise Mann, Born to Lie?, WEBMD, http://www.webmd.com/sex- relationships/features/born-to-lie (last visited Nov. 25, 2007).
400. See Hughes v. State, 437 A.2d 559, 572 (Del. 1981) (commenting that it may be "dangerous" to judge defendants based on the assumption that there is a "model of 'normal' courtroom behavior"). Profound cultural differences may also affect demeanor.
401. See TEX. DEP'T OF FAMILY AND PROTECTIVE SERVS., APS FACILITY (AFC) INVESTIGATIONS HANDBOOK 4240 (1997), available at http://www.dfps.state.tx.us/Handbooks/APS_Facility/Files/AFC_pg_4200.asp
402. [hereinafter APS FACILITY INVESTIGATIONS HANDBOOK] (instructing investigators that cultural differences may influence witness demeanor so that the demeanor is no longer indicative of the witness's credibility).
403. See Richard C. Wydick, The Ethics of Witness Coaching, 17 CARDOZO L. REV. 1, 5 (1995) (stating that one of the lawyer's tasks to perform while preparing witnesses is discussing "effective courtroom demeanor" with them).
404. See, e.g., Hughes, 437 A.2d at 572 ("[T]he practice is pregnant with potential prejudice. A guilty verdict must be based upon the evidence and the reasonable inferences therefrom, not on an irrational response which may be triggered if the prosecution unfairly strikes an emotion in the jury.").
405. See Harrigan & Taing, supra note 48, at 216-18 (explaining that smiles can express a range of emotions but that nontrained judges, and therefore likely nontrained jurors, usually interpret smiles "in the most traditional manner").
406. See United States v. Schuler, 813 F.2d 978, 981 n.3 (9th Cir. 1987) ("When a defendant chooses to testify, a jury must necessarily consider the credibility of the defendant. In this circumstance, courtroom demeanor has been allowed as one factor to be taken into consideration.").
407. See United States v. Carroll, 678 F.2d 1208, 1210 (4th Cir. 1982) (instructing that even though the defendant pointed to crime scene pictures when talking with his attorney and the prosecutor stated that this act showed that the defendant knew the scene, the jury should disregard the defendant's act and the prosecution's statement because both the defendant and his counsel were given the picture prior to trial).
408. See, e.g., Carey v. Musladin, 127 S. Ct. 649, 650-51 (2006) (holding that a murder trial where the victim's family wore buttons of the victim's picture did not deny the defendant the right to a fair trial).
409. Such coaching raises serious ethical issues, as it does when lawyers coach their witnesses on their appearance and their delivery of testimony. See Wydick, supra note 236, at 4-18 (stating that some coaching may be acceptable because it lessens the likelihood that the witness's appearance or behavior will harm a meritorious case).
410. See United States v. Cook, 48 M.J. 64, 65 n.1 (C.A.A.F. 1998) ("Unless demeanor evidence is noted as part of the record, it will not appear in the trial transcript.").
411. See Note, The Attorney-Client Privilege: Fixed Rules, Balancing, and Constitutional Entitlement, 91 HARV. L. REV. 464, 469-70 (1977) (describing that some believe that uninhibited attorney-client communication is an end in itself, and that others believe that it is a mean by which to achieve fairness and just disposition of cases);
412. see also Carroll, 678 F.2d at 1210 (holding that it was improper to infer that the defendant had been at the scene of the crime because he seemed to know more about the photographs than his attorney, when he was talking to his attorney at trial);
413. United States v. Corona, 551 F.2d 1386, 1389 (5th Cir. 1977) (finding that it was improper to refer to the defense counsel consulting with the defendant during trial in order to imply the defendant's guilt).
414. See Swidler & Berlin v. United States, 524 U.S. 399, 403 (1998) ("The attorney-client privilege is one of the oldest recognized privileges for confidential communications.").
415. See FED. R. EVID. 404(a) ("Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion ....");
416. C.J.S Evidence § 507 (2007) (describing that evidence of a specific act is not generally admissible to prove character and stating that the Federal Rules of Evidence conform with this general rule).
417. Character evidence is excluded to "prevent confusion of issues, unfair surprise and undue prejudice." Michelson v. United States, 335 U.S. 469, 476 (1948).
418. There are exceptions to this general rule for sex offenses, where character and propensity evidence may play a much greater role. See FED. R. EV. ID. 413-15 (setting forth that evidence of similar acts of sexual assault or child molestation may be admitted in both civil and criminal cases) .
419. See Joshua Dressler, Reflections on Excusing Wrongdoers: Moral Theory, New Excuses and the Model Penal Code, 19 RUTGERS L.J. 671, 694-98 (1988) (suggesting that whether or not someone is a "bad person" is more relevant during sentencing determination than when deciding whether the person should be punished for committing a crime);
420. see also Joel Schrag & Suzanne Scotchmer, Crime and Prejudice: The Use of Character Evidence in Criminal Trials, 10 J.L. ECON. & ORG. 319, 321 (1994) ("Rule 404 addresses the fear that a jury may believe that it is 'just' to convict a defendant on the basis of 'bad character' even if the rest of the evidence is weak.");
421. H. Richard Uviller, Evidence of Character to Prove Conduct: Illusion, Elogie, and Injustice in the Courtroom, 130 U. PA. L. REV. 845, 848, 882-83 (1982) (describing the commonly held belief that people can predict the behavior of others by studying their character but noting that this belief generally does not resonate with the judicial system due to its prejudicial potential).
422. See LANGBEIN, supra note 35, at 191 (stating that the modern policy behind excluding character evidence is that it pulls the jury's attention away from the facts of the current case).
423. See FED. R. EVID. 404(a) (providing that character evidence is generally not admissible to prove conformity with the alleged crime in the case at hand).
424. See APS FACILITY INVESTIGATIONS HANDBOOK, supra note 235, at 4240 ("[E]ach investigator should be aware of his own potential bias.").
425. Although a defendant's character is generally not the central issue for a case, the sentencing phase of a trial may be the exception. United States v. Schuler, 813 F.2d 978, 981 n.3 (9th Cir. 1987) ("At this stage different considerations, including general character, are relevant.").
426. See U.S. CONST, amend. V ("No person shall ... be compelled in any criminal case to be a witness against himself....").
427. Id.
428. In addition to Fifth Amendment implications, use of demeanor evidence may also raise Sixth Amendment Confrontation Clause issues. See U.S. CONST. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right to ... be confronted with the witnesses against him ....").
429. Generally, the defendant has the right "to confront" evidence against him or her. Id. Although a defendant's demeanor may be used against him or her in jury deliberations, there is generally no specific opportunity for the defendant to confront the inferences drawn from that demeanor.
430. See Reagan v. United States, 157 U.S. 301, 305 (1895) ("On the other hand, if he avail himself of this privilege, his credibility may be impeached, his testimony may be assailed, and is to be weighed as that of any other witness.").
431. See, e.g., Waller v. United States, 179 F. 810, 812-13 (8th Cir. 1910) (stating that a defendant could pantomime insanity in front of the jury in order to support an insanity defense, and therefore, if the defendant's behavior can be used to support such a defense, then his behavior should be subject to cross-examination).
432. See 2 WIGMORE, supra note 133, § 274(2), at 119-20 ("[T]he attempt to force a jury to become mentally blind to the behavior of the accused sitting before them involves both an impossibility in practice and a fiction in theory.").
433. See Waller, 179 F. at 812 ("It is, therefore, better that jurymen should have the aid of counsel and the supervision of the court in interpreting such evidence rather than be left to their own unguided impressions.").
434. See id. ("The demeanor of the defendant is not only proper evidence, but it is impossible to prevent the jury from observing and being influenced by it.").
435. See, e.g., LANGBEIN, supra note 35, at 190-96 (examining the prominent role of character evidence in assessing the defendant's guilt in seventeenth-century criminal trials in England).
436. See generally Michele Cotton, Back with a Vengeance: The Resilience of Retribution as an Articulated Purpose of Criminal Punishment, 37 AM. CRIM. L. REV. 1313, 1313-18 (2000) (explaining the various articulated purposes of criminal punishment, and discussing "the restoration of retribution as an essential purpose of punishment");
437. see also Peter Arenella, Convicting the Morally Blameless: Reassessing the Relationship Between Legal and Moral Accountability, 39 UCLA L. REV. 1511, 1527 (1992) ("[Criminal convictions for serious nonregulatory offenses convey the message that the offender was morally responsible for his crime and thus deserves moral blame for what he has done.");
438. Eric A. DeGroff, The Application of Strict Criminal Liablity to Mari-time Oil Pollution Incidents: Is There OPA for the Accidental Spiller?, 50 LOY. L. REV. 827, 839 (2004) ("The emphasis on the moral character of the defendant's act and the wrongful state of his mind has long been understood to be an essential characteristic of the criminal law.... [T]he criminal law has historically been distinguished from its civil counterpart by virtue of the criminal law's role in moral education and its focus on sanctioning blameworthy conduct.").
439. See, e.g., United States v. Indorato, 628 F.2d 711, 720 n.7 (1st Cir. 1980) (explaining that the beyond a reasonable doubt standard did not require absolute certainty, "[o]nly to a moral certainty").
440. See id. ("So if you are satisfied to a reasonable certainty, that you, as reasonable moral human beings, believe that the facts have been established by the evidence, then you are under oath to bring back a verdict of guilty.").
441. See, e.g., Ruffin v. State, 513 So. 2d 63, 66 (Ala. Crim. App. 1987)
442. (quoting Cumbo v. State, 368 So. 2d 871, 875 (Ala. Crim. App. 1978)).
443. See e.g., Cage v. Louisiana, 498 U.S. 39, 39 (1990) (per curiam) (holding that the phrase "moral certainty" was inadequate and misleading to describe the level of proof required by the beyond a reasonable doubt standard, and that use of the phrase by itself violates the Due Process Clause).
444. See, e.g., Victor v. Nebraska, 511 U.S. 1, 1-2 (1994) (stating that the use of moral certainty did not necessarily mean that the jury considered a lower level of proof than required by the beyond a reasonable doubt standard).
445. Id. at 11-12 ("[P]roof to a moral certainty is an equivalent phrase with beyond a reasonable doubt."
446. (quoting Fid. Mut. Life Ass'n v. Mettler, 185 U.S. 308, 317 (1902)) (internal quotation marks omitted)).
447. Compare WEBSTER'S NEW TWENTIETH CENTURY DICTIONARY 1168 (2d ed. 1979),
448. with BLACK'S LAW DICTIONARY 598 (8th ed. 2004) ("[Moral evidence:] [l]oosely, evidence that depends on a belief, rather than complete and absolute proof.").
449. See Todd E. Pettys, Evidentiary Relevance, Morally Reasonable Verdicts, and Jury Nullification, 86 IOWA L. REV. 467, 471 (2001) (stating that evidence and the way that it is presented allows the defendant to convince the jury "that a guilty verdict would be morally reasonable").
450. See Arie M. Rubenstein, Verdicts of Conscience: Nullification and the Modern Jury Trial, 106 COLUM. L. REV. 959, 960-62 (2006) (describing jury nullification, which refers to when the evidence supports that the defendant is guilty but the jury still acquits);
451. see also Anne Bowen Poulin, The Jury: The Criminal Justice System's Different Voice, 62 U. CIN. L. REV. 1377, 1399 (1994) (describing jury nullification as the jury's "power to acquit or to convict on reduced charges despite overwhelming evidence against the defendant").
452. See Irwin A. Horowitz et al., Jury Nullification: Legal and Psychological Perspectives, 66 BROOK. L. REV. 1207, 1208-11 (2001) (noting that courts do not "sanction the nullification power of the jury, but [judges] tacitly recognize the jury's right to nullify" verdicts based upon their own observations, moral values, and intent).
453. By jury nullification, jurors may accept both the crime in theory, and the punishment that attaches to it, but maintain that neither fit the particular defendant that they are asked to judge. FINKEL, supra note 20, at 33 (providing an excellent history of jury nullification and stating that jurors may decide that a crime merits punishment just not in the case at hand).
454. Dunn v. United States, 284 U.S. 390, 393-94 (1932) (stating that a consistent verdict is unnecessary because there are legitimate reasons why inconsistency may occur).
455. James William Neuliep, The Nonverbal Code, in I NTERCULTURAL COMMUNICATION: A CONTEXTUAL APPROACH 285, 287 (3d ed. 2006), available at http://www.sagepub.co.uk/upm-data/11826_Chapter8.pdf.
456. In fact, some philosophers opine that our very sense of justice begins with our emotions. See ROBERT C SOLOMON, A PASSION FOR JUSTICE: EMOTIONS AND THE ORIGINS OF THE SOCIAL CONTRACT 203-08 (1990) (discussing the historical roots of the moral sentiment theory).
457. Moral sentiments guide jurors in their judgments: We evaluate a real person's behavior as just or unjust on the basis of particular motives and actions along with his or her general character, and among the crucial ingredients in that amalgam of motives, actions, and character are the moral sentiments and what we might more generally call moral sensibilities. Id. at 203. Given this natural inclination, it is unlikely that jurors will completely disregard their emotional assessment of the defendant made from their firsthand observations. So long as jurors are able to perceive the defendant, they will make judgments, especially if they are not warned or directed as to how to deal with those perceptions Judicial Council of California Criminal Jury Instructions [CALCRIM] No. 104 (2007).
458. SMITH & MALANDRO, supra note 4, § 4.06, at 349-50 ("People make decisions by emotion (unconscious mind) and validate them with logic (conscious mind)."). Thus, jurors anchor their perceptions of the evidence through the lens of what they have observed overall in the courtroom, including their observations of the defendant's behavior.
459. See, e.g., Judicial Council of California Criminal Jury Instructions [CALCREM] No. 226 (2007), available at http://www.courtinfo. ca.gov/jury/criminaljuryinstructions/calcrim_juryins.pdf (instructing that jurors must use their "common sense and experience" in deciding whether to believe a piece of testimony).
460. Waller v. United States, 179 F. 810, 812 (8th Cir. 1910) (stating that jurors will inevitably judge the defendant's demeanor; therefore, the counsel and judge should instruct them as to how to use that information).
461. See, e.g., United States v. Cook, 48 M.J. 64, 66 (C.A.A.F. 1998) (arguing that courts have allowed intimidating acts by defendant to show consciousness of guilt);
462. United States v. Maddox, 944 F.2d 1223, 1226, 1230 (6th Cir. 1991) (arguing that the defendant's act of mouthing the words "you're dead" to the witness was probative of consciousness of guilt);
463. United States v. Mickens, 926 F.2d 1323, 1328-29 (2d Cir. 1991) (allowing admission of threat evidence when the defendant made a hand gesture in the shape of gun to intimidate the witness).
464. FED. R. EVID. 607 (allowing opinion and reputation testimony by lay witnesses to impeach the credibility of other witnesses).
465. This argument depends, in part, on whether judges will be willing to allow expert testimony on demeanor. Courts have broad discretion in deciding whether to admit expert testimony in general. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 591-98 (1993) (discussing the broad considerations of "fit" when determining the relevance of expert testimony).
466. Judges particularly resist admitting evidence that is similar to analysis of witness demeanor, such as expert testimony regarding eyewitness testimony. If jurors are allowed to consider nontestifying demeanor evidence, there is no guarantee that jurors will be provided expert testimony to assist them in this analysis. For more information regarding the admissibility of eyewitness expert testimony, see Henry F. Fradella, Why Judges Should Admit Expert Testimony on the Unreliability of Eyewitness Testimony, 2006 FED. CTS. L. REV. 1, 23-29, available at http://www.fclr.org/docs/ 2006fedctslrev3.pdf ("Courts have inconsistently admitted expert testimony on the reliability of eyewitness identifications.");
467. Robert P. Murrian, The Admissibility of Expert Eyewitness Testimony Under the Federal Rules, 29 CUMB. L. REV. 379, 386-95 (1999) (discussing the relevance of this testimony);
468. Jennifer L. Overbeds, Beyond Admissibility: A Practical Look at the Use of Eyewitness Expert Testimony in the Federal Courts, 80 N.Y.U. L. REV. 1895, 1908-12 (2005) (discussing the historical development of eyewitness expert testimony);
469. Scott Woller, Rethinking the Role of Expert Testimony Regarding the Reliability of Eyewitness Identifications in New York, 48 N.Y.L. SCH. L. REV. 323, 327-33, 338-47 (2003) (describing the growing acceptance of expert eyewitness testimony and arguing for the liberal admission thereof);
470. Margaret J. Lane, Comment, Eyewitness Identification: Should Psychologists Be Permitted to Address the Jury?, 75 J. CRIM. L. & CRIMINOLOGY 1321, 1333-39 (1984) (describing the common substance of such testimony);
471. Andrew R. Tillman, Comment, Expert Testimony on Eyewitness Identification: The Constitution Says, "Let the Expert Speak,"56 TENN. L. REV. 735, 760-74 (1989) (describing the constitutional considerations for determining the admissibility of eyewitness expert testimony);
472. Christopher M. Walters, Comment, Admission of Expert Testimony on Eyewitness Identification, 73 CAL. L. REV. 1402, 1403-06 (1985) (describing the case for expert testimony).
473. See Gold, supra note 3, at 484-91.
474. See SMITH & MALANDRO, supra note 4, § 1.47, at 85 (outlining six principles for understanding impression formation).
475. People v. Edelbacher, 766 P.2d 1, 30 (Cal. 1989) ("Comment on a defendant's demeanor as a witness is clearly proper and comment on courtroom demeanor may be proper under some circumstances.").
476. But cf. United States v. Schuler, 813 F.2d 978, 981 (9th Cir. 1987)
477. ("That the jury witnesses the court-room behavior [of the defendant]... does not make it proper for the prosecutor to tell them, with the court's approval, that they may consider it as evidence of guilt." (quoting United States v. Wright, 489 F.2d 1181, 1186 (D.C. Cir. 1973))).
478. U.S. CONST, amend. V.
479. Crawford v. Washington, 541 U.S. 36, 51-53 (2004) (noting that multiple formulations of the term "testimonial" exist, from affidavits to out-of-court statements made under circumstances where the witness would reasonably believe that the statement could be used at trial).
480. To the extent that a defendant's demeanor is viewed as testimonial, it certainly is not "compelled."
481. An example of the impact and role of the theater of the courtroom is the Chicago Eight conspiracy case. See JANICE SCHUETZ & KATHRYN HOLMES SNEDAKER, COMMUNICATION AND LITIGATION: CASE STUDIES OF FAMOUS TRIALS 217 (1988) (describing the trial of the Chicago Eight as a "burlesque drama" where the satirical drama of the courtroom had as much or more of an impact than the actual evidence presented at trial). In that trial, eight radical dissidents were put on trial for conspiracy to cross state lines to cause a riot.
482. Id. at 218-19.
483. The trial became a political showcase. Id. at 217.
484. Even more important than the evidence from the witness stand were the actions of the defendants during trial. See id. at 223,
485. The defendants frequently and deliberately interrupted the proceedings with outbursts of profanity. See id. at 227-28.
486. Whenever a government witness would point at the defendants, the defendants would make "oink, oink" sounds from their chairs. Id. at 228.
487. The prosecutors asked the court to admonish the defendants to stop laughing during the case because the laughter was giving the jury the impression that the trial was absurd. Id at 237.
488. To convey their disdain for the court, defendants appeared unshaved, with long hair, wearing peace symbols, beads and black armbands. Id.
489. They sat on the floor and used vulgar gestures, such as raising their middle fingers or plugging their ears with their fingers to disparage the prosecution's case. Id.
490. In the end, the jurors were asked to decide whether the defendants were illegal protestors. See id. at 245.
491. To make that determination, they needed to absorb and consider the full milieu of the trial. As experts note, "although jurors forget much of the content of the trial discourse, they recall general impressions and attitudes that then enter into their decisions." Id. at 235.
492. The defendants' demeanor and actions in the Chicago Eight case partially worked by getting the jurors to exonerate all of the defendants on charges of conspiracy, and later leading to an appellate reversal for those defendants convicted of crossing state lines with intent to riot. Id. at 245.
493. In the end, the trial was not simply about what the defendants had done in Chicago that summer. Rather, the burlesque of the courtroom succeeded in persuading a broader audience - that of the community - of a higher truth. See id. at 245-46. To the extent that trials are an opportunity for society to judge itself and its standards for justice, then the full drama of the courtroom may be needed to make such a judgment.
494. FINKEL, supra note 20, at 39.
495. See Anne Bowen Poulin, The Jury: The Criminal Justice System's Different Voice, 62 U. CIN. L. REV. 1377, 1411 (1994).
496. For example, an instruction could read: In determining the guilt or innocence of the defendant, you are cautioned against relying on the defendant's demeanor while not testifying. People react to stress or surprise in different ways. Some may cry, others may laugh, still others may not react at all. Although you are expected to incorporate your life experiences into your consideration of the case presented, including the demeanor of witnesses on the stand, guilt or innocence should be determined based on the evidence presented.
497. For an understanding of the challenges of drafting effective and proper jury instructions, see generally PETER M. TIERSMA, LEGAL LANGUAGE (1999),
498. and Nancy S. Marder, Bringing Jury Instructions in the Twenty-First Century, 81 NOTRE DAME L. REV. 449 (2006).
499. Although this Article has discussed the possible impact of spectator conduct, it does not advocate allowing jurors to draw inferences from such conduct. Most likely, the defendant did not have control over such actions and to allow inferences from such conduct would be to encourage distractions during trial.
500. This instruction may be given as a separate instruction or added to preexisting instructions defining the nature of "evidence" in a case. Some instructions already inform jurors to disregard anything that they see or hear when the court is not in session. See Judicial Council of California Criminal Jury Instructions [CALCRIM] No. 104 (2007), available at http://www.courtinfo.ca.gov/jury/criminaljuryinstructions/calcrim_juryins.pdf. If demeanor is going to be considered as evidence, this would be an appropriate place to explain its use.
501. As with evidence of other acts under Federal Rule of Evidence 404(b), notice should be required before a party can refer to nontestifying demeanor evidence in argument. By requiring notice, the court can better ensure that disputes about what occurred in the courtroom are clarified for the record and that the defendant had an opportunity to explain, either personally or through another witness, what that conduct reflected.
502. Presumably, in cases in which the defendant testifies, there will be an opportunity to examine and cross-examine the defendant regarding the meaning of any conduct in the courtroom.
503. FED. R. EVID. 401.
504. U.S. CONST, amend. V.
505. In Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2797-98 (2006), the United States Supreme Court held that the procedural rights accorded to enemy combatant Hamdan were not in accordance with international standards or the standards required by civilized peoples, and the deviation from acceptable procedures was not justified by a compelling need.
506. In this regard, it is interesting to note that many jurisdictions do not allow a defendant to waive his appearance for trial in capital cases. See, e.g., FED. R. CRIM. P. 43(c)(1)(B). Part of the reason for not allowing such waivers in capital cases is that the process of judging the life and death of the defendant involves a dynamic that requires the juror's direct observations of the defendant, including his demeanor.
507. Or, as stated by advocates of clear instructions regarding jury nullification, "[t]he current practice ... has been analogized to 'telling jurors to watch a baseball game and to determine who won without telling them the rules until the game is over.'" Lawrence W. Crispo et al., Jury Nullification: Law Versus Anarchy, 31 LOY. L.A. L. REV. 1, 57 (1997)
508. (quoting Albert W. Alschuler, Our Faltering Jury, 122 PUB. INT. 28, 36-37 (1996)).
509. See Bradley J. Huestis, Jury Nullification: Calling for Candor from the Bench and Bar, 173 MIL. L. REV. 68, 106 (2002) ("The best solution to address the jury nullification dilemma is a tightly worded, restrictive pattern instruction.");
510. see also Pettys, supra note 268, at 529-30 (2001) (arguing that out of respect and fairness to jurors, jury instructions should be given to alert jurors to the court's perspective on whether jury nullification should be used);
511. Douglas E. Litowitz, Jury Nullification: Setting Reasonable Limits, CBA REC. (Chi., Ill.), Sept. 1997, at 16 (advocating that jurors should be informed about power to nullify, but informed in such a way that minimizes their tendencies to do so).
512. See Samuel H. Pillsbury, A Problem in Emotive Due Process: California's Three Strikes Law, 6 BUFF. CRIM. L. REV. 483, 499 (2002).