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Jury Doing ‘The Wave’ During Capital Trial Was Harmless, Court Rules

The fact that jurors broke into a “Wave” in the jury box during a defendant’s testimony in the sentencing phase of a capital murder case is not prejudicial and is instead “harmless trial hijinks,” a court of appeals panel ruled in Texas last week.

While not often used, the “harmless trial hijinks” standard of review is getting more attention recently, as criminal defense lawyers are improving their advocacy around the more typical “harmless error” standard. “The court’s use of ‘harmless trial hijinks’ is quite simply a reaction to criminal defense counsel’s success with the harmless error standard in one recent case,” said University of Texas Law School professor Haney R. Dobbins III. “Courts are a little spooked in death penalty cases now that the harmless error standard actually worked to reverse a sentence.”

In the most recent case, jurors spontaneously broke into a wave as the defendant was testifying about his upbringing. It’s not clear what prompted the jury to break into a wave, though defense counsel is claiming that the prosecutor in the case feigned an “overly extravagant yawn,” which prompted the jury’s reaction.

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