Recent CT Supreme Court Decision Excluding a Demonstration Gets it Wrong.
Trials are about telling stories. When I present a case to a judge or jury, I am telling my client’s story; about how the accident or incident in question happened; about how their lives were before the events at issue and how they have since been impacted by those events; about who they are and why their story is being told in a courtroom.
All of us have a fundamental constitutional right to have our voices heard and our story told to a jury of our peers. In criminal cases, when a defendant’s liberty hangs in the balance, telling a story means being able to mount a strong and complete defense. As the U.S. Supreme Court stated in Crane v. Kentucky, 476 U.S. 683, 690 (1986):
Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense. (emphasis added)
A recent decision by the Supreme Court of Connecticut, however, appears to have weakened that fundamental right to “present a complete defense.”
Many Ways to Tell a Story in Court
Just as there are many ways to tell a story generally – books, movies, plays, or poetry to name but a few – there are many ways to tell a story during a trial: the opening statements and closing arguments of counsel, the presentation of documents or other physical evidence, and, of course, the testimony of witnesses who expound on what they know or saw, as well as offering their expert opinions on relevant issues.
In addition to the types of evidence referred to above (though arguments of counsel are not evidence), a litigant or defendant may on occasion want to tell their story through the use of “demonstrative evidence.” This type of evidence can include things such as charts and graphs summarizing information, videos, photographs, slides and models. It can also include an actual physical demonstration by a witness of events at issue in the trial.
Physical Demonstrations and the Court’s decision in State v. Romanko
It is easy to see how a physical reenactment of an important event can be more powerful than a verbal description of the event, and how a refusal to allow a criminal defendant to present such demonstrative evidence could be seen as infringing on their right to present a complete defense.
Yet that is what the Connecticut Supreme Court appears to have done in State v. Romanko, released August 19th. The Court upheld the trial court’s decision to exclude the defendant’s proposed physical courtroom demonstration of his inability to perform a sobriety field test that was part of the state’s DUI prosecution against him.
Romanko was charged with and ultimately convicted of DUI, and the accumulation of evidence in support of that charge was pretty extensive:
- Right before getting into his car, he was seen on a stranger’s deck shouting “Gerry!”, then entered the home and only left when the owner’s German shepherd chased him away. The homeowner, who called 911, described Romanko as glassy eyed and that something “was definitely not right with him.”
- When he was pulled over after driving erratically, the officer smelled alcohol on Romanko’s breath, heard him slur his speech and saw an empty 24 oz. can of beer on the floor. (after his arrest, more empty cans of beer were found in his car).
- The officer then administered standard field sobriety tests, including the “walk and turn” and “stand on one leg” tests. Romanko failed all of the administered tests and thereafter refused to give a breath test.
At trial, Romanko testified that he was unable to perform the walk and turn and the one leg stand field sobriety tests because of a knee injury that he had sustained during an accident on his dirt bike five years earlier. In support of the claim, Romanko wanted to perform those tests in front of the jury. The trial court precluded the evidence on the basis that it was not possible to replicate in court the conditions on the night of the arrest, and because ‘‘[i]t would be inappropriate to have the defendant demonstrate what he thinks occurred on that night.’’
The Supreme Court held that the trial court was well within its discretion to exclude the demonstration because where a physical demonstration is offered for the purpose of recreating an event at issue, “the demonstration must be performed under substantially similar conditions so that the rendition is reasonably fair and accurate.”
The Court Got it Wrong
Indeed, the conditions from the night of the arrest and the courtroom were not substantially similar. However, the point of the demonstration was not to recreate the events of that evening but rather to show that even “in a sober condition, the defendant performs the test the same way” due to his preexisting injury.
In a concurring opinion in which he agreed that the conviction should be upheld because of the overwhelming evidence against Romanko, Justice Palmer disagreed with the Court’s conclusion that the demonstration was properly excluded. His analysis was the right one:
I disagree with the majority because… the purpose of the proposed demonstration was to establish that the defendant is unable to perform the test even under the best of conditions, and therefore, to bolster his claim that it was his injury, and not his allegedly intoxicated condition, that caused him to fail the sobriety tests. Because the conditions in the courtroom were perfectly adequate to permit such a demonstration, I agree with the defendant that the trial court abused its discretion in precluding it.
Indeed, as Justice Palmer noted, the evidence against Romanko beyond the two sobriety tests was so overwhelming that the exclusion did not make any difference to the outcome. Nevertheless, the specifics of Romanko’s case do not alter the need to ensure that all litigants and defendants should be allowed to tell their story in the manner which best presents their case, so long as the rules of evidence are followed. This includes courtroom demonstrations, including the one at issue in this case.
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This article has been prepared by Nugent & Bryant for informational purposes only and does not, and is not intended to, constitute legal advice. The information is not provided in the course of an attorney-client relationship and is not intended to substitute for legal advice from an attorney licensed in your jurisdiction.