Opinion
SC: 164520-1 COA: 359012 359218
01-03-2024
PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Seth Vincent HORTON, Defendant-Appellant.
Chippewa CC: 19-003955-FC
Order
On November 9, 2023, the Court heard oral argument on the application for leave to appeal the April 21, 2022 judgment of the Court of Appeals. On order of the Court, the application is again considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.
Bernstein, J. (dissenting).
I dissent from this Court’s order denying leave following oral argument on the application. I write separately to clarify what I believe to be the appropriate procedure when evaluating claims such as this one. In this case, the prosecution sought to admit at trial video footage of the complainant’s testimony from the preliminary examination hearing, because the since- deceased complainant is indisputably unavailable to testify at trial. However, defendant appears in the video footage while clothed in orange jail garb. Thus, if a jury watches the video, the jury will necessarily see defendant in jail garb. Defendant moved to suppress the video recording, and the trial court summarily denied his motion. The Court of Appeals affirmed in a published opinion, People v Horton, 341 Mich App 397, 989 N.W.2d 885 (2022), and defendant sought leave to appeal in this Court.
We ordered oral argument on the application and considered "whether the trial court abused its discretion in ruling that a video recording of the preliminary examination is admissible at trial, despite the fact that the defendant is depicted in the recording dressed in jail garb." People v Horton, 510 Mich 953, 953, 979 N.W.2d 854 (2022). These questions implicate the interplay between the constitutional right to due process and our evidentiary rules concerning the admissibility of evidence. This is an issue of first impression in this Court, and one that I do not believe has been sufficiently addressed by the Court of Appeals. Our sister states have also taken, in my view, a misguided approach to this issue. Thus, I write separately to offer a brief discussion on why I believe other courts have gotten this issue wrong, and guidance for how I believe these issues ought to be addressed going forward.
This Court, in considering a defendant’s presence at trial, has recognized that "[t]he presumption of innocence requires the garb of innocence …. " People v Shaw, 381 Mich. 467, 472, 164 N.W.2d 7 (1969) (quotation marks and citation omitted). At a trial before a jury, a defendant may not be compelled to wear prison clothing, and may elect to wear civilian clothing, so that they may "be brought before the court with the appearance, dignity, and self-respect of a free and innocent man …." Id. at 473, 164 N.W.2d 7 (opinion of the Court) (quotation marks and citation omitted). The Supreme Court of the United States has also explained that compelling a defendant to stand trial in jail garb would present a "constant reminder of the accused’s condition" and "may affect a juror’s judgment." Estelle v Williams, 425 U.S. 501, 504, 505, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976). A defendant’s clothing is so likely to be a continuing influence throughout a trial that "an unacceptable risk is presented of impermissible factors coming into play." Id. at 505, 96 S.Ct. 1691. The impact on a jury may even be subconscious. This subconscious bias against a defendant has the potential of depriving a defendant of a fair trial. See id. at 518, 96 S.Ct. 1691 (Brennan, J., dissenting) (explaining that requiring a defendant to appear before a jury in identifiable jail garb "surely tends to brand him in the eyes of the jurors with an unmistakable mark of guilt …. The prejudice may only be subtle and jurors may not even be conscious of its deadly impact ….").
In the case before us, we considered whether a video that shows defendant clothed in jail garb is admissible evidence that may be shown to a jury. To begin this analysis, the imperative question is whether such a video prejudices a defendant. This is where I believe that other courts have erred.
The Court of Appeals in this case held that viewing defendant in jail garb via video footage "would not undermine the presumption of innocence …. " People v Horton, 341 Mich App at 403, 989 N.W.2d 885. The Court of Appeals also limited the application of Shaw and Estelle to "those cases in which the defendant is forced to appear before the jury at trial while wearing jail garb." Id. at 402, 989 N.W.2d 885.
Our sister courts have taken a similar approach. For instance, the Kentucky Supreme Court stated that a video of a defendant in jail garb was not "inherently prejudicial." Deal v Commonwealth, 607 S.W.3d 652, 669 (Ky, 2020). Other courts have found that prejudice may depend on the length of the video in question. See People v Thames, 467 P.3d 1181, 1192 (Colo App, 2019) ("Unlike the visual impact of a defendant’s attire throughout a tidal, the clothing shown in a video lasting one hour and fourteen minutes will not be a ‘constant reminder’ of the defendant’s condition or create a prejudicial, continuing influence in jurors’ minds.").
In my view, these findings are fundamentally erroneous, as I do not believe that prejudice depends on the manner in which potentially impermissible matertai is presented to the jury. Stated differently, if it is prejudicial to present a defendant in jail garb during a jury trial, it should be prejudicial to present a video of defendant in jail garb during a jury trial. The subconscious impression on the jury regarding guilt is no different merely because the jury sees defendant in jail garb in a video and not in person. See Commonwealth v Gallaway, 283 A.3d 217, 238 (Penn, 2022) (Wecht, J., dissenting) (explaining that there is "no compelling reason to believe that a video of a defendant bearing the mark of a criminal is unlikely to create those same impressions" that would be created if the defendant sat at trial in jail garb).
For this same reason, I believe that prejudice should not be dependent on the length of the video. The Estelle decision considered the effects on the jury when seeing a defendant in jail garb, but did not consider how much exposure is necessary for a juror to form a subconscious bias against a defendant. Such a test would be inherently unworkable. In practice, no one knows how much exposure to prejudicial material is needed to taint a juror’s judgment. Who is to say even a moment is permissible? How often or for how much total time would a jury have to view the video for it to present a continuing influence? When considering subliminal impacts on a jury, it is impossible for a court to answer these questions with any sort of precision.
I believe that the proper approach would be to hold that compelling a defendant to be seen by a jury while clothed in jail garb is per se prejudicial, regardless of the manner in which this information is presented. However, evidence that threatens a defendant’s right to a fair trial may nonetheless be admissible if a trial court finds that the evidence furthers an essential state interest. Estelle, 425 U.S. at 505, 96 S.Ct. 1691. Estelle itself did not recognize a state interest that would justify compelling a defendant to appear before a jury in jail garb. See id. ("Unlike physical restraints, … compelling an accused to wear jail clothing furthers no essential state policy."). However, this case can be distinguished from Estelle, as the prosecution asserts that it cannot adequately present its case without introducing the video, as it provides the only opportunity for the jury to probe the unavailable complainant’s credibility. Thus, in this case, the prosecution’s ability to competently present a case to the jury may hinge on whether the jury sees defendant in jail garb. Assuming that this evidence serves an essential state interest, it remains the trial court’s duty to balance the various interests between a defendant’s right to a fair trial and a prosecution’s ability to present a case, and to determine whether a less prejudicial option might suffice under the circumstances. For instance, it is not always true that credibility may only be probed by sight. As a blind man, I cannot view either a video or in-person testimony, but like other blind people, I can rely on other cues to determine credibility, such as audio ones. I question why the introduction of an audio recording of the preliminary examination would not suffice to balance the interests in this case, or whether other means of cutting the footage and obscuring defendant’s clothing might be possible. It should be the trial court’s duty to fully consider these alternatives and select the option that preserves the presumption of innocence when possible.
I limit my analysis to the facts presented to us in this case, but I would not restrict the ability of the prosecution to invoke an essential state interest under a different set of circumstances.
At oral argument, the prosecution stated that it would be open to exploring these other, less prejudicial alternatives on remand if defendant sought them. However, a remand would require this Court to reverse the Court of Appeals’ holding as to prejudice. Therefore, I respectfully dissent. Rather than denying leave, I would hold that any time a defendant is compelled to appear before a jury wearing jail garb, in person or otherwise, that defendant is prejudiced. From there, the question would turn to whether the prosecution could show that this prejudice is excused by an essential state interest in presenting probative evidence. I would remand this case to the trial court to determine the admissibility of the video footage under this test, and to also determine if other, less prejudicial alternatives exist for admitting this testimony.
Bolden, J., joins the statement of Bernstein, J.