There was video showing the crime, a guy walking up to a truck and taking a shotgun out through the window. The jury saw it. Prosecution witnesses testified to it. Yet the defendant took the position that it wasn’t him because he didn’t walk that way, and wanted to demonstrate for the jury how he walked.

The problem was that the defendant also sought to exercise his right not to testify at trial. 

The trial judge refused to let the defendant walk if he wasn’t going to testify, but the Oregon Court of Appeals reversed.

The black and white video showed a man walk up to the driver’s side of the van, quickly reach inside the window, take the shotgun and towel, and walk away. Berge could tell from watching the video, based on the man’s behavior and the  short timeframe, that the man who took the gun knew that the gun was in the van. Berge then separately showed the video to Officers Braun and Sharpe, who were familiar with many of the people who frequented the area around the bar. Braun and Sharpe both identified defendant as the man in the video based on his appearance and mannerisms, particularly his “twitchy walk” and jerky movements. Defendant was arrested and charged with felon in possession of a firearm.

When the identifying factors include one’s “twitchy walk,” the question of whether one’s walk is “twitchy” is certainly something to challenge. But whether that’s testimonial is another story.  Of course, if the defendant was to demonstrate his walk which turned out to not be “twitchy,” would that not give rise to a very strong interest in examining him about whether he was faking his walk in front of the jury in order to disprove the testimony and appearance on video?  On the other hand, his walk is nothing more than his walk, not reflecting any workings of his mind, just as his face remains his face as the jury sits and looks at the defendant throughout the trial.

The court rejected the trial judge’s refusal to allow the defendant to demonstrate his walk without otherwise subjecting himself to examination, holding that walking is not a testimonial act.

We agree with defendant that demonstrating a walk is not testimonial. For purposes of the right against self-incrimination, “testimonial” evidence is not limited to in-court testimony under oath. Rather, the label “testimonial” is simply shorthand for the type of evidence that is subject to the right against compelled self-incrimination. Testimonial evidence is evidence that communicates by words or conduct an individual’s beliefs, knowledge, or state of mind. In contrast, evidence of physical characteristics such as identity, appearance, and physical conditions are not testimonial.

The court offered examples, such as tattoos and handwriting, or merely having the defendant stand in the courtroom so the jury could get a full height view.  The examples, however, fall short of addressing the differences between an immutable characteristic and something that can be altered to present to the jury. 

Whether the defendant deliberately walks in an unusual manner, undergoes some gait training to make his walk less twitchy, can be at issue.  This doesn’t mean that the defendant isn’t offering his real walk, unmodified for the purpose of trial, but doesn’t preclude the OJ Simpson question of whether he deliberately “made” the glove not fit. One can’t make tattoos magically appear or disappear. One can slouch or stretch to make his height appear slightly different, but not likely to a material degree. Walking, on the other hand, can be made to appear significantly different than they way it happens when no thought or effort is put into the demonstration.

It appears that the Court of Appeals did two things in reaching the right decision. First, it would not impute a deliberately false purpose to the defendant in offering the demonstration.  This is significant, as few courts would credit the defendant with honesty, whether in testimony or in a demonstration that could be subject to thoughtful modification.

The second is that the demonstration was one of the few things the defense could offer to refute the prosecution’s identification that wouldn’t compel the defendant to undergo cross-examination.  This is a huge, and deeply problematic, element in a trial, where the defense seeks to undermine testimony it claims is false but is incapable of doing so because it opens the door to the prosecution getting their hands around the defendant’s throat. 

Like it or not, few defendants make good witnesses, and once a defendant puts his butt in the witness chair, he’s exposed to every bad thing he’s ever done, the potential for confusion and inarticulate testimony that is often used to destroy him in front of the jury.  While defendant would often love to testify about one or two specific things raised by prosecution witnesses, the downside of opening up his life to the jury can’t be avoided.  While being unlikeable or ignorant doesn’t make a person guilty, it also doesn’t endear him to a jury.  The risk is huge.

By this ruling, the Oregon court enabled the defense to proffer what is, on the surface, nothing more than physical evidence in order to counter the twitchy testimony, without putting the defendant in the position of risking self-incrimination or just general coming off poorly to the jury.  While the decision could have easily gone the other way, it seems to best accommodate both the distinction between testimonial evidence and non-testimonial evidence, while allowing the defendant the opportunity to challenge claims against him without exposing himself to full cross-examination.