Under the Constitution, can a criminal defendant’s courtroom demeanor be “evidence”?

State v. Barry, No. 89976-2 (Wash. June 4, 2015).

Robert Barry was tried for child molestation. During jury deliberations, the jury asked the court whether it could use as “evidence” its “observations of the defendant’s actions-demeanor during the court case.” In response, the trial court instructed the jury, “Evidence includes what you witness in the courtroom.” The jury came back with a conviction. 

Did the trial court’s instruction violate the Fifth Amendment’s privilege against self-incrimination, or the Sixth Amendment’s right to a jury trial? It didn’t, says a majority of the Washington Supreme Court. Justice Johnson dissents, joined by two of his colleagues.

Significantly, the defendant made no argument that the trial court’s instruction violated due process, so the court doesn’t consider that question.