(dissenting) — The majority in effect holds Marcelino J. Rodriguez’s constitutional right to a fair trial was violated when Arnulfo Ojeda was allowed to testify in *273prison garb, handcuffs, and shackles.5 I agree. I however part ways with the majority on the remedy, because the majority provides none.
I. Abuse of Discretion: A Mistrial Should Have Been Granted
When a defendant’s constitutional right to a fair trial has been violated and he moves for mistrial, the motion should be granted. State v. Weber, 99 Wn.2d 158, 165, 659 P.2d 1102 (1983); State v. Essex, 57 Wn. App. 411, 415, 788 P.2d 589 (1990); State v. Wilson, 20 Wn. App. 592, 595, 581 P.2d 592 (1978); State v. Brooks, 16 Wn. App. 535, 539, 557 P.2d 362 (1976); State v. Turner, 16 Wn. App. 292, 299, 555 P.2d 1382 (1976); see also Holbrook v. Flynn, 475 U.S. 560, 567-72, 106 S. Ct. 1340, 89 L. Ed. 2d 525 (1986); Estelle v. Williams, 425 U.S. 501, 503-04, 96 S. Ct. 1691, 48 L. Ed. 2d 126 (1976); United States v. Waldon, 206 F.3d 597, 607 (6th Cir.), cert. denied, 531 U.S. 881 (2000); United States v. Pina, 844 F.2d 1, 8 (1st Cir. 1988); State v. Ford, 278 Mont. 353, 359-60, 926 P.2d 245 (1996); see also generally 13 Royce A. Ferguson, Jr., Washington Practice: Criminal Practice and Procedure § 4216 (1997).
Where there is no legitimate reason to place physical restraints on a witness in the courtroom, in full view of the jury, the proper remedy is also a new trial. See State v. Allah Jamaal W., 209 W. Va. 1, 6-8, 543 S.E.2d 282 (2000); Jackson v. State, 698 So. 2d 1299, 1303-04 (Fla. Dist. Ct. App. 1997); People v. Mixon, 120 A.D.2d 861, 862, 502 N.Y.S.2d 299 (1986); People v. Valenzuela, 151 Cal. App. 3d 180, 191-96, 198 Cal. Rptr. 469 (1984); Williams v. State, *274629 P.2d 54, 56-58 (Alaska 1981); Commonwealth v. Brown, 364 Mass. 471, 479, 305 N.E.2d 830 (1973); State v. Coursolle, 255 Minn. 384, 389-90, 97 N.W.2d 472 (1959); 21A Am. Jur 2d Criminal Law §§ 1016, 1019 (1998); R.P. Davis, Annotation, Right of Accused To Have his Witnesses Free from Handcuffs, Manacles, Shackles, or the Like, 75 A.L.R.2d 762 (1961).
Our opinions on the propriety of physically restraining witnesses, although few and not squarely on point, are in accord. See, e.g., State v. Hartzog, 96 Wn.2d 383, 399, 635 P.2d 694 (1981) (stating “the physical restraint of witnesses should likewise be undertaken only in compelling circumstances, which the trial judge should explain on the record”) (citing United States v. Roustio, 455 F.2d 366, 371 (7th Cir. 1972); 3 American Bar Ass’n, Standards for Criminal Justice, Std. 15-3.1(c) (2d ed. 1980)); State v. Williams, 18 Wash. 47, 50-51, 50 P. 580 (1897) (reversing order to manacle witnesses for violating right to fair trial when restraint was unnecessary, in view of jury, and trial judge offered no proper justification in record); see also State v. Simmons, 26 Wn. App. 917, 920-21, 614 P.2d 1316 (1980) (reversing orders to shackle witnesses because trial judge abused his discretion by not articulating on the record legitimate reasons for restraint).
The majority is correct that a trial judge’s decision to deny a motion for mistrial is generally reviewed for abuse of discretion. Nevertheless, we must be clear on exactly what is within that discretion. To uphold the use of physical restraints, discretion lies with the judge’s view of what the appropriate and necessary restraints are (if any), not his understanding of whether the criminal defendant’s constitutional right to a fair trial has been or will be violated. This is because when a mistrial motion is based on a violation of a legal right, the ruling is reviewed like other questions of law, i.e., de novo. 1 Steven Alan Childress & Martha S. Davis, Federal Standards of Review § 4.01 (3d ed. 1999); 2 Washington State Bar Ass’n, Washington Appellate Practice Deskbook §§ 18.3, 18.7(9) (1993).
*275Even if the majority is wedded to the idea that the “abuse of discretion” standard must apply in all respects to the denial of a mistrial, a wealth of authority nonetheless makes it clear that a trial court does abuse its discretion when it fails to apply the correct rule of law. State v. McDonald, 138 Wn.2d 680, 696, 981 P.2d 443 (1999); Moreman v. Butcher, 126 Wn.2d 36, 40, 891 P.2d 725 (1995); In re Det. of G.V., 124 Wn.2d 288, 295, 877 P.2d 680 (1994); State v. Blight, 89 Wn.2d 38, 40-41, 569 P.2d 1129 (1977); State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971); see also Cooler & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S. Ct. 2447, 110 L. Ed. 2d 359 (1990); Zervos v. Verizon N.Y., Inc., 252 F.3d 163, 169 (2d Cir. 2001); Bateman v. United States Postal Serv., 231 F.3d 1220, 1223 (9th Cir. 2000); United States v. Alviso, 152 F.3d 1195, 1198 (9th Cir. 1998); United States v. Washington, 98 F.3d 1159, 1163 (9th Cir. 1996) (quoting Kayes v. Pac. Lumber Co., 51 F.3d 1449, 1464 (9th Cir. 1995)); Abrams v. Interco Inc., 719 F.2d 23, 28 (2d Cir. 1983); Star Enter. v. Marze, 61 S.W.3d 449, 456 (Tex. App. 2001); State v. Gundenschwager, 191 Wis. 2d 431, 440, 529 N.W.2d 225 (1995); McDaniel v. Yarbrough, 898 S.W.2d 251, 253 (Tex. 1995); 1 Childress, supra § 4.01; 5 Am. Jur. 2d Appellate Review § 695 (1995).
Here, the trial judge fell into legal error because he denied Rodriguez’s mistrial motion on the erroneous belief Rodriguez’s right to a fair trial was not violated when Ojeda was allowed to testify in prison clothes, handcuffs, and shackles. Furthermore, the record contains no justification whatsoever for using such restraints.6 It was therefore error to deny a mistrial.
II. Rodriguez’s Unfair Trial Was Not Harmless
The majority appears to find Rodriguez properly preserved and raised this constitutional issue for our review, as *276it agrees such was error. The only possible relevant question remaining is whether the State has proved the constitutional error harmless beyond a reasonable doubt.7 See Chapman v. California, 386 U.S. 18, 21-24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967); State v. Caldwell, 94 Wn.2d 614, 618, 618 P.2d 508 (1980) (citing State v. Stephens, 93 Wn.2d 186, 190-91, 607 P.2d 304 (1980)).
We consistently and recently have stated (also in shackling cases) that constitutional errors are presumed prejudicial; whereas the State bears the burden to prove them harmless beyond a reasonable doubt. State v. Damon, 144 Wn.2d 686, 692-93, 25 P.3d 418, 33 P.3d 735 (2001) (shackling case); State v. Clark, 143 Wn.2d 731, 775, 24 P.3d 1006, cert. denied, 534 U.S. 1000 (2001) (same); State v. Finch, 137 Wn.2d 792, 859, 975 P.2d 967, cert. denied, 528 U.S. 922 (1999) (same).
The majority cites State v. Elmore, 139 Wn.2d 250, 273, 985 P.2d 289 (1999), cert. denied, 531 U.S. 837 (2000), as a basis to fault Rodriguez for not objecting to the shackling or requesting a curative instruction. Majority at 270. However, this overlooks the fact Rodriguez made and argued a motion for mistrial immediately after Ojeda’s testimony, as if this motion is somehow not tantamount to an objection. More importantly, it also overlooks a key component in the Elmore opinion itself: that case in fact applied harmless error review. See 139 Wn.2d at 274 (stating “[a] claim of unconstitutional shackling is subject to a harmless error analysis”); see also Finch, 137 Wn.2d at 859-66 (applying harmless error review in shackling case even though defendant lost motion for a new trial). Therefore, I can only suppose the majority wishes to penalize Rodriguez for *277moving for a mistrial rather than making an objection per se.8
In any event, blaming Rodriguez for not objecting does not square with the majority’s tacit opinion that he properly preserved the constitutional error for our review, nor does it fit with the evidence in the record which clarifies that Rodriguez and his counsel had no reason to anticipate the State would dress Ojeda in prison garb, handcuffs, and shackles for his testimony. In fact, Rodriguez and his counsel first saw Ojeda when the jury did—too late. The bell cannot be unrung. The harm was done.9
The majority provides no authority (or any argument) to ignore harmless error review. Consistent with our prior opinions, I would apply harmless error review, the burden of proof resting on the State to prove beyond a reasonable doubt that the constitutional error was harmless.10 Here, in both its briefing and oral argument the State neglects to *278discuss the harmfulness of the error at any appreciable length; instead, it focuses solely on whether a defendant’s rights could ever be violated when a government witness is restrained without a prior hearing, if so whether such an error in this case was waived, and the pertinent standard of review. See Br. of Resp’t; Suppl. Br. of Resp’t; Wash. Supreme Ct. Oral Argument (Sept. 25, 2001), available at http://www.tvw.org. In addition, numerous courts have acknowledged that it is “ ‘inherently prejudicial’ ” when the jury in a criminal case sees the unfair use of restraints or prison garb for more than just a brief period of time. See, e.g., Finch, 137 Wn.2d at 845 (quoting Holbrook, 475 U.S. at 568); Hartzog, 96 Wn.2d at 399 (citing Kennedy v. Cardwell, 487 F.2d 101, 105 n.5 (6th Cir. 1973)); Simmons, 26 Wn. App. at 921 (implying per se reversal when witnesses are restrained without prior hearing on record); see also Waldon, 206 F.3d at 607; Rhoden v. Rowland, 172 F.3d 633, 636-38 (9th Cir. 1999).
No way has the State carried its burden.
III. Conclusion
“A fair trial is a legal trial; one conducted according to the rules of common law except in so far as it has been changed by statute; one where the accused’s legal rights are safeguarded and respected. A fair trial is a proceeding which hears before it condemns, which proceeds on inquiry, and renders judgment only after trial. A fair trial is that which is such in contemplation of law, namely, that which the law secures to the party, and a fair trial before an impartial jury means one where the jurors are entirely indifferent between the parties. The necessary factors in a fair trial are an adequate hearing and an impartial tribunal, free from any interest, bias, or prejudice. A fair trial is only likely to accomplish full justice within human limitations.”
Box v. State, 74 Ark. App. 82, 88-89, 45 S.W.3d 415 (2001) (quoting 88 C.J.S. Trial § 1 (1955)).
One of the first propositions of the orderly administration of the law is that a defendant, either guilty or innocent, shall be accorded a fair trial. The fact that this or the trial court may consider the accused to be guilty in no wise lessens the court’s *279duty to see that he has a fair trial. A fair trial implies among other things that the court exclude all evidence that has no material bearing on the case.
State v. Robinson, 24 Wn.2d 909, 917, 167 P.2d 986 (1946).
The majority of this Court holds Rodriguez never received that which he is constitutionally entitled: a fair trial. The proper remedy is to give him one.
I therefore dissent.
The majority opinion footnotes “we are not reviewing a claim of unconstitutional shackling, we are reviewing a claim that a motion for mistrial was wrongly denied.” Majority at 270 n.2. This entirely mischaracterizes the issue. No matter how one attempts to spin it, this is a case about the right to a fair trial. It is constitutional in nature. The cases on which the majority relies are constitutional cases. While the right to a fair trial issue happened to arise in a motion for mistrial context here, this genesis does not by itself derogate a question otherwise constitutional into one merely procedural. The majority holds “the prohibition against physical restraints” applies to all inmate witnesses. See, e.g., majority at 262. This “prohibition” stems from a source none other than our state and federal constitutions. If not, where does the “prohibition” come from?
As correctly pointed out in the concurrence below, “[a]t trial, the State did not justify Arnulfo Ojeda’s appearance with explanations that he posed a danger to the community or a risk of flight. Rather, the State offered no explanations for Mr. Ojeda’s appearance, apparently assuming it was appropriate to offer the testimony of a shackled prosecution witness dressed in a jail uniform.” State v. Rodriguez, 103 Wn. App. 693, 703-04, 14 P.3d 157 (2000) (Kurtz, C.J., concurring).
The majority alarmingly neglects to discuss harmless error. By doing so, it erroneously places the appellate burden on Rodriguez to prove “prejudice.” Majority at 269-72. Of course, whether there is “prejudice” is just another way of asking if the error was harmful or harmless, i.e., prejudicial or not.
Interestingly, Rodriguez could obtain harmless error review of the constitutional error even if it were raised for the first time on appeal. See RAP 2.5; State v. Scott, 110 Wn.2d 682, 688, 757 P.2d 492 (1988) (“The proper way to approach claims of constitutional error asserted for the first time on appeal is as follows. First, the appellate court should satisfy itself that the error is truly of constitutional magnitude—-that is what is meant by ‘manifest’. If the claim is constitutional, then the court should examine the effect the error had on the defendant’s trial according to the harmless error standard set forth in Chapman v. California, supra.” (footnote omitted)).
The majority also appears to hold that any time a witness testifies in restraints it violates the defendant’s constitutional right to a fair trial. Yet, the majority somehow opines such a violation of the defendant’s rights could in some cases work to the advantage of a defendant. “In such an instance,” the majority reasons, “the defense should not be allowed to second-guess its own tactical decision by an after-the-fact objection.” Majority at 271. While I disagree in principle, I fail to see the relevance of the majority’s discussion because even it does not go so far as to conclude Rodriguez’s case was aided by Ojeda’s testimony.
The majority disingenuously mischaracterizes this opinion when it claims “[t]he dissent contends that a new trial is the only proper remedy when the witness is seen in shackles.” Majority at 271 n.4. No such contention is made. Nor could such be the case in view of the position taken herein that the error is subject to harmless error review. What is maintained—and perhaps this is what the majority is attempting to refute, albeit without reasoned discussion—is that the State in this case has failed to show how a violation of a defendant’s constitutional right to a fair trial is harmless beyond a reasonable doubt when the State has bound a witness in physical restraints, dressed him in traditional jail garb, the witness testifies as such in full view of the jury, and the State offers no legitimate reason for doing so.