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If the jurors in the Scott Peterson murder trial are to be believed, one of the key reasons Peterson was convicted and sentenced to death was because he failed to show remorse in the courtroom. While there is a natural tendency for jurors to evaluate a defendant by his demeanor in the courtroom, legally what the defendant does or says (or doesn’t do or doesn’t say) at counsel table is not evidence. Evidence is what comes from the witness stand or is introduced as exhibits. Peterson did not testify. Yet jurors relied on their subjective evaluation of his posture and expressions to determine that he was a cold-blooded killer with no remorse. Courtroom demeanor is not considered trial evidence For years, both state and federal courts have held that a defendant’s courtroom demeanor while he is not on the witness stand is not evidence and that it is therefore improper for a prosecutor to comment on it before the jury. See Wead v. State, 129 S.W.3d 126, 130 (Texas Crim. App. 2004) (“prosecutor may not properly comment upon the defendant’s demeanor in the courtroom, since the defendant’s demeanor in the courtroom is not evidence of guilt”); State v. Hoover, 54 So. 2d 130 (La. 1951) (prosecutor improperly commented on defendant’s reaction to photographs of murder scene). For example, in United States v. Schuler, 813 F.2d 978 (9th Cir. 1987), Scott Schuler was prosecuted for threatening the life of the president. During the testimony of the key prosecution witness, Schuler began to laugh. He was more amused than horrified by the vulgar statements he made in threatening the president. In closing argument, the prosecutor highlighted this behavior for the jury. He stated, “I noticed a number of you were looking at Mr. Schuler while that testimony was coming in and a number of you saw him laugh and saw him laugh as they were repeated.” Id. at 979. The prosecutor also commented on the defendant’s behavior off the witness stand by telling the jury: “You saw him sitting there in the trial. Did you see his legs going up and down? He is nervous. You saw how nervous he was sitting there. Do you think he is afraid?” Id. at 981. In reversing Schuler’s conviction, the panel held that the prosecutor’s comments violated the defendant’s Fifth Amendment privilege against self-incrimination and his due process right not to be convicted on anything other than actual evidence adduced at trial. The court instructed: ” ‘[The due process] clause encompasses the right not to be convicted except on the basis of evidence adduced at trial. The Supreme Court has declared that one accused of a crime is entitled to have his guilt or innocence determined solely on the basis of the evidence introduced at trial, and not on grounds . . . not adduced as proof at trial.’ ” Schuler, 813 F.2d at 981, quoting Taylor v. Kentucky, 436 U.S. 478 (1978). Yet support for this rule is not universal. In her dissent in Schuler, Circuit Judge Cynthia Holcomb Hall contested the claim that a defendant’s courtroom demeanor is not evidence. She wrote, “The principle that a defendant’s demeanor is evidence is well-settled” and cited Russell v. United States, 288 F.2d 520 (9th Cir. 1961), cert. denied, 371 U.S. 926 (1962), a case in which the defendant did not testify. Hall argued that, for sound policy reasons, a jury should be able to consider the courtroom demeanor of a defendant. Quoting Professor John Henry Wigmore, she wrote, “It is as unwise to attempt the impossible as it is impolitic to conduct trials upon a fiction; and the 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.” 2 J. Wigmore, Evidence � 274 (J. Chadbourn rev. ed. 1979). In fact, if the majority is correct, defendants should be entitled to a jury instruction directing jurors not to take the defendant’s demeanor into account in their verdict. Since we do not do this, the legal system embraces a fiction-jurors are only supposed to consider the evidence, yet realistically a defendant’s courtroom behavior can affect their verdict. Most of the time, courts ignore the fact that jurors may consider the defendant’s nontestifying courtroom demeanor in reaching their decisions. However, occasionally courts become concerned that jurors have strayed from relying on the actual evidence in the case. For example, in Villacres v. United States, 357 A.2d 423 (D.C. 1976), Mario Villacres was charged with murder. During his closing argument, the prosecutor repeatedly called to the jury’s attention the defendant’s demeanor in the courtroom while off the witness stand. The prosecutor argued to the jury: “He sits there now with a smirk on his face. He’s denied it all along . . . .Look at him smirk . . . .He [went] to his closet, or whether he kept that .38 revolver, and he pick[ed] it up . . . .And, oh, he’s got some thoughts in his mind, doesn’t he? He’s smirking like he is now.” Id. at 426. The court reversed Villacres’ conviction. In a firm statement, the court held: “The prosecutor’s conduct was not an isolated, momentary aberration occurring in the heat of trial, but was a deliberate, calculated and successful effort to prejudice the defendant by reference to matter that was not in evidence. Such tactics cannot be tolerated.” Id. at 428. See also United States v. Whitmore, 266, 480 F.2d 1154, 1158 (1973). Yet courts do not always reverse when a prosecutor comments on a defendant’s demeanor in the courtroom. In Maiello v. Edwards, 1998 U.S. Dist. Lexis 6660 (S.D.N.Y. 1998), the prosecutor went out of bounds when he commented on how the defendants laughed and snickered throughout their trial. However, the court later instructed the jury that the prosecutor’s argument was “completely improper, completely improper.” Although the prosecutor had crossed the bounds of fair argument, the court held that the comments did not violate Maiello’s Fifth Amendment rights because courtroom behavior is not compelled testimonial communication. Like many other courts, the Maiello court refused to find that a comment on courtroom behavior should necessarily be construed as a comment on the defendant’s failure to testify. See Gomez v. Ahitow, 29 F.3d 1128, 1136 (7th Cir. 1994); United States v. Gatto, 995 F.2d 449, 455-56 (3d Cir. 1993); United States v. Herring, 955 F.2d 703, 709 (11th Cir. 1992). See also Basora v. Mitchell, 803 F. Supp. 897, 898 n. 1 (S.D.N.Y. 1992) (reference to a defendant smiling during trial was improper, but did not implicate the Fifth Amendment). Moreover, it is not necessarily ineffective assistance of counsel for a defense lawyer not to object when a prosecutor does comment on a defendant’s demeanor. For strategic reasons, defense counsel may not want to highlight the comment for the jury. See, e.g., Lewis v. Texas, 2004 Tex. App. Lexis 10217 (Nov. 16, 2004) (defense counsel did not object when prosecutor noted how defendant “stared down” child sexual assault victim and then argued that for “the rest of his life he’s going to think of a nine year old little girl and be sexually aroused by it”). Occasionally, it is not only permissible, but appropriate, for the court (not the jury) to consider a defendant’s nontestifying demeanor in court. For example, if the court must determine whether the defendant understood that he or she was waiving the right to a jury trial, the court might consider the defendant’s demeanor at the time of the waiver and throughout the trial. See, e.g., United States v. Anderson, 541 F. Supp. 60 (W.D. Pa. 1982). Similarly, if the court must determine whether the defendant was competent to stand trial or plead guilty, the court may comment on how the defendant interacted with counsel during the trial and appeared to understand the proceedings. See, e.g., Wisconsin v. Thomas, 618 N.W.2d 273 (Wis. Ct. App. 2000) (defendant’s demeanor indicated he was competent to plead guilty); Maine v. Knights, 482 A.2d 436, 439 n.3 (Maine 1984) (defendant’s demeanor demonstrated competency to waiver jury trial). Demeanor can be a factor at the time of sentencing Courts also routinely consider a defendant’s demeanor in court at the time of sentencing. If a defendant appears remorseful, the court may consider this reaction in granting leniency. See, e.g., People v. Torres, 634 N.Y.S.2d 354 (1995), (defendant’s demeanor demonstrated how she was impacted by the negligent death of her child). However, if the defendant fails to show remorse, and he thereby traumatizes the victim’s survivors more, the court may in some jurisdictions use the defendant’s conduct as an aggravating factor for sentencing. See, e.g., State v. Rizzo, 833 A.2d 363, 431 (Conn. 2003); People v. D’Arezzo, 593 N.E.2d 1076 (Ill. App. Ct. 1992). In fact, some jurisdictions will even instruct jurors during the capital phase of a murder trial to consider all evidence and that “Evidence is not only what [jurors] hear on the stand but [is also] what they witness in the courtroom.” State v. McNeil, 327 N.C. 388, 396 (1990). See also North Carolina v. Billings, 348 N.C. 169 (1998) (allowing prosecutor during death penalty trial to comment on defendant’s demeanor in the courtroom because evidence includes what the jurors observe in the courtroom). Other courts, however, are troubled by using something as subjective as the interpretation of a defendant’s demeanor to allow aggravation of the defendant’s sentence. See, e.g., Minnesota v. Barnes, 313 N.W.2d 1 (Minn. 1981) (defendant’s lack of remorse did not justify upward departure in sentence). For Peterson, there is good news and bad news. The good news is that California law holds that it is improper to comment on a nontestifying defendant’s demeanor in the courtroom. People v. Boyette, 29 Cal. 4th 381 (2002); People v. Heishman, 45 Cal. 3d 147, 196-197 (1988). The bad news is that the prosecutor didn’t need to comment on Peterson’s demeanor; the jurors were fixated on it without being instructed to do so. Accordingly, Peterson will have an uphill battle in demonstrating that he was convicted based upon nonevidence. Laurie L. Levenson is the Professor of Law, William M. Rains Fellow and director of the Center for Ethical Advocacy at Loyola Law School, Los Angeles.

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