State v. Fivecoats

A demonstration of a physical condition or attribute in court is not regarded as testimony and does not waive the right against self-incrimination.

Defendant appealed his convictions of first-degree theft, felon in possession of a firearm, and unlawful entry into a motor vehicle. During trial, the jury was shown a security video recording of the incident. As evidence, Defendant wanted to walk across the court room, in front of the jury, in order to show that his gait was unlike the gait of the man in the security video. The court denied Defendant because it reasoned he could not demonstrate his gait in front of the jury and continue to preserve his right against self-incrimination under Article I, section 12, of the Oregon Constitution and the 5th Amendment to the U.S. Constitution, because it would subject Defendant to cross-examination. However, the Court of Appeals disagreed with the trial court's reasoning because Defendant's gait is evidence of a physical nature and not testimonial. Therefore, the trial court's refusal of the demonstration of the gait as testimonial was error and was not harmless. Reversed and remanded.