¶41 (dissenting) — A person charged criminally has a constitutional right to a fair trial and to require that the State establish guilt beyond a reasonable doubt through testimony, evidence, and exhibits. It is a long-recognized element of a fair trial that the jury consider only relevant and competent evidence bearing on the issue of guilt or innocence. Today’s majority opinion abandons precedent and allows a conviction based on “evidence” that was not presented during trial, to which the defense could not respond and which an appellate court is unable to review.
¶42 During deliberations, the jury asked the trial court if it could consider the defendant’s “actions-demeanor” during trial. In response, the court instructed the jury to consider as evidence everything it had observed in the courtroom. Because this instruction was given after the trial ended and arguments were concluded, Robert Barry did not have an opportunity to confront, rebut, cross-examine, or explain his demeanor, which the court directed that the jury could consider as “evidence.” The majority characterizes the trial court’s response to the jury as “ ‘instructional error[ ]’ ”18 *320and holds that the error did not implicate Barry’s constitutional rights to a fair trial. Majority at 303. The majority reasons that the error was not of constitutional magnitude because it did not violate Barry’s Fifth Amendment privilege against self-incrimination or his Sixth Amendment rights because the text of the Sixth Amendment does not suggest the existence of a constitutional right to an evidence-based verdict. Majority at 311-12; U.S. Const, amends. V, VI. The majority errs on both parts.
¶43 The majority’s unprecedented view of the Fifth and Sixth Amendments strays from controlling federal precedent and basic principles of a fair trial: the criminally accused has the right not to take the stand, to sit silently and not incriminate himself, to know the substance of the evidence against him, to be afforded an opportunity to confront that evidence, and to receive a verdict based on the properly admitted evidence. The trial court’s instruction that the jury consider unadmitted, unconfronted, and unknowable “demeanor” evidence violates each of those constitutionally guaranteed rights. His conviction should be reversed and this case remanded for a constitutionally fair trial.
Fifth Amendment
¶44 The majority erroneously concludes that the non-testimonial nature of Barry’s perceived demeanor, and the fact that the reference to demeanor did not amount to a comment on the defendant’s right to silence, removes this error from the Fifth Amendment’s purview. In so concluding, it largely relies on cases involving evidence of the defendant’s out of court demeanor.19
*321¶45 However, the majority’s narrow view of the Fifth Amendment contradicts Ninth Circuit precedent. United States v. Schuler, 813 F.2d 978 (9th Cir. 1987). In Schuler, the prosecutor told the jury it should consider the defendant’s behavior during trial, including his laughter, as evidence of guilt. The Ninth Circuit held the prosecutor violated the defendant’s rights under the Fifth Amendment:
In effect the defendant would be compelled to testify to explain any actual or possible behavior that the prosecutor might bring to the jury’s attention. While this pressure to testify may well be the exception, there is no reason for use of such comments that would justify even a slight opening of the door to an invasion of constitutional rights.
Schuler, 813 F.2d at 982.
¶46 The court acknowledged that the comment did not refer to Schuler’s right not to testify, nor did the laughter constitute testimony, but the court was concerned that such a comment by the prosecutor would “eviscerate the right to remain silent by forcing the defendant to take the stand” to explain the perceived in-court demeanor. Schuler, 813 F.2d at 982.
¶47 Other courts have also recognized the constitutional implications of such a direction to consider demeanor:
It is clear that the prosecutor’s reference to the courtroom behavior of the defendant was improper. It impugned defendant’s Fifth and Sixth Amendment rights. Defendant had a *322Fifth Amendment right not to testify, and he elected to exercise that right. He also had a Fifth Amendment right not to be convicted except on the basis of evidence adduced against him. Defendant had ... a Sixth Amendment right to a trial by jury .... In tandem, defendant had the right to a jury trial at which, if he elected not to testify, the fact of his presence and his non-testimonial behavior in the courtroom could not be taken as evidence of his guilt.
United States v. Carroll, 678 F.2d 1208, 1209 (4th Cir. 1982) (emphasis added).
¶48 Today’s majority errs by concluding that Fifth Amendment protections extend only to defendant testimony and to actual comments on the defendant’s right to remain silent. As recognized by federal courts, invitations to the jury to consider nontestimonial in-court conduct still impugn the defendant’s Fifth Amendment right because it in essence compels the defendant to take the stand to explain his or her behavior.
¶49 Here, we have no record of Barry’s demeanor during trial, but we do know that before trial began, the court advised Barry that he should refrain from any display of emotion. It advised that everyone in the courtroom remain stone-faced throughout the trial and that no one should show any reaction to the children’s testimony. The court explained to Barry that such a showing of emotion could “backfire [ ]” on his case. 4 Verbatim Report of Proceedings at 451. Assuming Barry complied with that instruction, his observable lack of remorse throughout trial likely prompted the question from the jury. By then instructing that the jury could consider Barry’s demeanor throughout trial as evidence of his guilt, the court put him in the constitutionally intolerable position of either waiving his constitutional right to refuse to testify, so that he could explain his remorseless attitude throughout trial, or leaving the jurors to formulate their own inferences about his behavior. The defendant has a recognized Fifth Amendment right not to be put in such an untenable position; there simply “is no reason for use of such comments that would justify even a *323slight opening of the door to an invasion of constitutional rights.” Schuler, 813 F.2d at 982.
Sixth Amendment
¶50 The majority’s textualist interpretation of the Sixth Amendment also contradicts explicit precedent: “The Sixth Amendment’s guarantees of a trial by an impartial jury and the right of confrontation require that the jury base its verdict on the evidence presented at trial.” Fields v. Brown, 503 F.3d 755, 783 (9th Cir. 2007) (Gould, J., concurring/dissenting) (citing Turner v. Louisiana, 379 U.S. 466, 472-73, 85 S. Ct. 546, 13 L. Ed. 2d 424 (1965)).
In the constitutional sense, trial by jury in a criminal case necessarily implies at the very least that the “evidence developed” against a defendant shall come from the witness stand in a public courtroom where there is full judicial protection of the defendant’s right of confrontation, of cross-examination, and of counsel.
Turner, 379 U.S. at 472-73. This requirement “goes to the fundamental integrity of all that is embraced in the constitutional concept of trial by jury.” Turner, 379 U.S. at 472. This constitutional right to an evidence-based verdict is a basic, long-standing principle.20 It is troubling that the majority does not discuss or even reference controlling precedent and instead advances its own creative view of the Sixth Amendment.
*324¶51 The fact that, practically speaking, jurors may often rely on “extraevidentiary” factors that are not compatible with the fundamental focus of the right to a fair trial and due process21 is unfortunate but not constitutionally intolerable. I agree with the majority that the Fifth and Sixth Amendments do not (and cannot) guarantee that each conviction is based solely on the evidence presented because from the moment the jurors enter the courtroom, they may subconsciously form impressions about every aspect of the trial. This is an unavoidable human element of the trial process. But after the defense has rested its case, and after closing arguments, the trial court cannot instruct that those observations may be treated as “evidence” bearing on the determination of guilt or innocence when the defendant has had no opportunity to challenge or explain that “evidence.” Such an instruction is akin to allowing a prosecutor to argue evidence not presented at trial or to allowing a new witness to testify privately, without cross-examination, to the jury during its deliberations. It deprives the defendant his right to confront the evidence, and at the very least, it deprives Barry an opportunity to challenge the propriety of the use of this “evidence” in the determination of guilt.
¶52 One would hope that an instruction that the jury could consider a defendant’s race, gender, religious beliefs, or physical appearance in its deliberations would be constitutionally reprehensible — that we would not tolerate such an instruction to consider irrelevant attributes as “evidence” of guilt. Similarly, the trial court’s vague instruction here to consider the defendant’s “demeanor” invites that same prejudicial abuse and opens the door for the jury to consider the appearance and demeanor of the defendant instead of focusing on the evidence presented. Such an invitation violates basic notions of due process.
*325¶53 The trial court should have responded to the juror’s question, if at all, by telling the jury to review the instructions already properly given, instructions that stated, “It is your duty to decide the facts in this case based upon the evidence presented to you during this trial. . . . Your decisions as jurors must be made solely upon the evidence presented during these proceedings.” Clerk’s Papers at 119. Our criminal procedures are designed specifically to channel the jury’s considerations into narrow, structured, evi-dentiary categories. From jury voir dire, designed to eliminate juror bias and prejudice, to the rules of evidence, designed to weigh considerations of relevance, to the jury instructions themselves, designed to require a reasoned analysis of admitted evidence in coming to a verdict, criminal trial procedure aims at ensuring that defendants are convicted on evidence. The court’s instruction to consider unconfronted “demeanor” evidence deprived Barry of that constitutionally guaranteed right.
¶54 The majority’s holding today is incongruous with precedent, with the guaranties of the Fifth and Sixth Amendments, and with basic notions of fairness and due process. It is well established that a court’s instruction to consider unadmitted, unrecorded, and unconfronted evidence impugns the defendant’s constitutional right not to testify and violates his right to confront the evidence against him. Because the error is constitutional in nature and Barry objected to the instruction at trial, the State bears the burden of establishing that the error was harmless beyond a reasonable doubt. State v. Jones, 168 Wn.2d 713, 724, 230 P.3d 576 (2010). The State cannot meet this burden based on this silent record. Barry’s conviction should be reversed and the case remanded for a new trial.
Stephens, J., concurs with Johnson, J.The error here cannot accurately be characterized as merely “instructional” because instructional errors are not based on the evidence admitted, but on the instructions to the jury regarding how to make use of the admitted evidence. See, e.g., State v. Gresham, 173 Wn.2d 405, 423-24, 269 P.3d 207 (2012) (finding nonconstitutional instructional error where the trial court failed to give a limiting instruction in connection with character evidence); State v. Johnson, 100 Wn.2d 607, 623, 674 P.2d 145 (1983) (finding constitutional instructional error where the jury instructions omitted an element of the crime), overruled on other grounds by State v. Bergeron, 105 Wn.2d 1, 711 P.2d 1000 (1985); State v. McCullum, 98 Wn.2d 484, 487-88, 656 P.2d 1064 (1983) (finding constitutional instructional error where the trial court failed to instruct on the “beyond a reasonable doubt” standard). The error in this case is simply not comparable. The trial court did not err in instructing the jury how to weigh the evidence; it erred in allowing the jury to consider “evidence” that was not admitted at trial, that is not in the record, and that the defendant had no opportunity to rebut. Classifying the error in this case *320as “instructional” trivializes the consideration of unadmitted, unconfronted, and unrecorded information as evidence.
See majority at 308-09 (citing United States v. Velarde-Gomez, 269 F.3d 1023, 1030-31 (9th Cir. 2001) (involving evidence of the defendant’s demeanor at the time of arrest); State v. Mauro, 159 Ariz. 186, 766 P.2d 59,70-71 (1988) (involving an officer’s observations of the defendant’s demeanor when arrested as opposed to when taken to the station to observe photographs); United States v. Elkins, 774 *321F.2d 530, 537-38 (1st Cir. 1985) (involving witness testimony that defendant was visibly nervous at the scene of the arrest)).
The only two cases cited by the majority that do involve the defendant’s in-court demeanor are cited within a footnote, and neither case supports the majority’s argument. Majority at 308 n.9 (citing Cunningham v. Perini, 655 F.2d 98, 100 (6th Cir. 1981) (holding that the prosecutor’s comment on the nontestifying defendant’s in-court demeanor violated his due process rights, but the court did not reverse because the petitioner challenged the unpreserved error via habeas corpus petition and the petitioner could not establish manifest error); Christenson v. State, 261 Ga. 80, 402 S.E.2d 41,49 (1991) (holding that a comment on demeanor during the sentencing phase is permissible because sound policy reason exists to consider remorse evidence during sentencing)). Neither decision supports the majority’s position here that the court’s direction to consider Barry’s demeanor as evidence of guilt does not infringe on Barry’s Fifth Amendment rights.
See Irvin v. Dowd, 366 U.S. 717, 723, 81 S. Ct. 1639, 1642, 6 L. Ed. 2d 751 (1961) (defendant’s right to an impartial jury requires a verdict based solely on the evidence presented at trial); Mattox v. United States, 146 U.S. 140, 149, 13 S. Ct. 50, 36 L. Ed. 917 (1892) (it is vital “that the jury should pass upon the case free from external causes tending to disturb the exercise of deliberate and unbiassed judgment”); United States v. Noushfar, 78 F.3d 1442, 1445 (9th Cir. 1996) (structural error for the jury to consider unadmitted evidence because it “undermines one of the most fundamental tenets of our justice system: that a defendant’s conviction may be based only on the evidence presented during the trial”); United States v. Perkins, 748 F.2d 1519, 1533 (11th Cir. 1984) (“Extrinsic evidence, evidence that has not been subject to the procedural safeguards of a fair trial, threatens such constitutional safeguards as the defendant’s right of confrontation, of cross-examination, and of counsel.” (citing Turner, 379 U.S. at 473)).
See Andrew C. Helman, Racism., Juries, and Justice: Addressing Post-Verdict Juror Testimony of Racial Prejudice During Deliberations, 62 Me. L. Rev. 327, 330-31 (2010).