# Fl LE IN CLERKS OFFICE SUPREMECOURT, STATE OFWASHNmlH DATE 

### MAY 092013

# ~4Jit IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, NO. 86145-5 Respondent,
v. 

### ENBANC BRANDON S. CORISTINE, Filed 

### MAY 09

### 2013 Petitioner.
STEPHENS, J.-This case asks us to determine whether the trial court violated petitioner Brandon Coristine's constitutional rights by offering an affirmative defense instruction over his objection. Coristine argues that offering the instruction to thejury violated his right to control his defense. We hold that where a defendant chooses not to argue or invoke an affirmative defense, offering
an instruction on the defense over the defendant's objection violates the Sixth Amendment to the United States Constitution. We reverse the Court ofAppeals and remand for a newtrial. FACTS AND PROCEDURAL HISTORY Coristine was charged with rape in the second degree arising out ofevents during a house party at his residence in Spokane, Washington. To prove rape inState v. Coristine (Brandon S.), 86145-5



### the second degree, the State must prove beyond a reasonable doubt that the defendant engaged in sexual intercourse with someone who was incapable of consent by reason ofbeing physically helpless or mentally incapacitated. RCW 9A.44.050(1)(b). At trial, the State presented testimony that Coristine's alleged victim, L.F., drank heavily at the party and went to sleep and that some time later Coristine
came into her room and had sexual intercourse with her as she lay on her stomach coming in and out ofconsciousness. Coristine and two other defense witnessesCoristine's wife and his sister-in-law-testified that L.F. consumed alcohol at the party but did not appear to be intoxicated. Coristine also testified that L.F. initiated the sexual intercourse and was an active and willing participant. After the close ofevidence, the trial court held an instruction conference at which the sole contested issue was whether to read a jury instruction on the statutory affirmative defense of "reasonable belief." See 

### RCW 9A.44.030(1). Coristine's counsel objected to the instruction, arguing that Coristine's defense was simply that the State failed to prove L.F. was incapacitated. 3 Verbatim Report of Proceedings (VRP) at 397. The prosecutor argued in favor of giving the instruction, asserting the court was required 

### to give the instruction if Coristine "bolster[ed]" his case by offering "any additional evidence" that the victim was not incapacitated, including witness testimony. 3 VRP at 395. The trial court was skeptical at first, noting that Coristine was free to choose his own defense, but

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### eventually accepted the State's argument. 3 VRP at 395-99. Over Coristine's objection, the courtread the following pattern instructionto thejury: Itis a defense to a charge ofrape in the second degree that at thetime ofthe act the defendant reasonably believed that [L.F.] was not mentally incapacitated or physically helpless. The defendant has the burden of proving this defense by a preponderance ofthe evidence. Preponderance of the evidence means that you must be persuaded, considering all of the evidence in the case, that it is more probably true than not true. Ifyou find that the defendant has established this defense, it will be your duty to return a verdict ofnot guilty as to this charge. 

### 3 VRP at 409-10; 

### see 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 19.03, at 296 (3d ed. 2008). After the instructions were given, each side presented closing argument. Coristine reiterated his failure-ofproofdefense, arguing that testimony from defense witnesses about L.F.'s alcohol consumption and behavior at the party cast doubt on the State's allegation that L.F.
was physically helpless or mentally incapacitated during sexual intercourse. Neither side mentionedthe affirmative defense ofreasonable belief. Thejury deliberated for two days and found Coristine guilty ofrape in the second degree. The Court ofAppeals affirmed the conviction. 

### State v. Coristine, 161 Wn. App. 945, 252 P.3d 403 (2011). We granted discretionary review. 

### State
v. Coristine, 172 Wn.2d 1014,262 P.3d 63 (2011). ANALYSIS In order to further the truth-seeking aim of a criminal trial and to respect individual dignity and autonomy, the Sixth Amendment gives the accused the right

-3-State v. Coristine (Brandon S.), 86145-5



### to present a defense. Consistent with this right, the Sixth Amendment requires deference to the defendant's strategic decisions. Because an affirmative defense is one the defendant may raise, the Sixth Amendment requires courts to honor an intelligent and voluntary choice to forgo
an affirmative defense. Instructing the jury on an affirmative defense over the defendant's objection violates the Sixth Amendment by interfering with the defendant's autonomy to present a defense. A. The Sixth Amendment Protects aDefendant's Autonomy The Sixth Amendment guaranties ofcompulsory process, confrontation, and the assistance ofcounsel help ensure fair trials. See Faretta v. California, 

### 422 U.S. 806, 818-21, 95 S. Ct. 2525, 45 L. 

### Ed. 2d 562 (1975); Washington v. Texas, 

### 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. 

### Ed. 2d 1019 (1967). These assurances safeguard the truth-seeking function of criminal trials. In putting the State to its proof, a defendant may call witnesses, cross-examine the State's witnesses, and have the assistance of counsel, thereby guarding against a wrongful conviction. See, e.g., Herring v. New York, 

### 422 U.S. 853, 862, 95 S. Ct. 2550, 45 L. Ed. 2d 593 (1975) ("[P]artisan advocacy on both sides of a case will best promote the ultimate objective thatthe guilty be convicted and the innocent go free."). Presenting one's own defense also affirms individual dignity and autonomy. See McKaskle v. Wiggins, 

### 465 U.S. 168, 176-77, 104 S. Ct. 944, 79 L. Ed. 2d 122 (1984) (noting that the Sixth Amendment right to conduct one's own defense "exists to affirm the dignity and autonomy ofthe accused"); see also Portuondo v.
-4-State v. Coristine (Brandon S.), 86145-5

Agard, 

### 529 U.S. 61, 76, 120 S. Ct. 1119, 146 L. Ed. 2d 47 (2000) (Stevens, J., 

### concurring) (noting that a "defendant's Sixth Amendment right 'to be confronted with the witnesses against him'
...reflects respect for the defendant's individual dignity and reinforces the presumption ofinnocence"). To further the truth-seeking function oftrial and to respect the defendant's dignity and autonomy, the Sixth Amendment recognizes the defendant's right to control important strategic decisions. See McKaskle, 

### 465 U.S. at 177 ("[T]he primary focus must be on whether the defendant had a fair chance to present his
case in his own way."); State v. Jones, 

### 99 Wn.2d 735, 742, 644 P.2d 1216 (1983) (defendant's fundamental rightto make decisions about the course ofthe defense is mandated by "'.respect for [his or her] freedom as a person"' (quoting Frendak v. UnitedStates, 

### 408 A.2d 364, 376 (D.C. 1979))). B. Courts MustRespect aDefendant's Right To Forgo an Affirmative Defense The Sixth Amendment right to control one's defense encompasses the decision to present an affirmative defense. We first recognized this principle in Jones, 

### 99 Wn.2d 735. In Jones, 

### the trial court entered a plea of not guilty by
reason ofinsanity over the defendant's objection and allowed the introduction of evidence of insanity after the defense presented its case. Id. 

### at 739. The jury found the defendant to be insane at the time he committedthe crime. ld. 

### at 738. We granted the defendant a new trial. Relying on Faretta, 

### we observed that "a defendant has a constitutional 

### right to at least broadly control his own defense." Jones, 

### 99 Wn.2d at 740. In Faretta, 

### the United States Supreme Court held the
-5-

### State v. Coristine (Brandon S.), 86145-5



### Sixth Amendment grants criminal defendants the personal right to selfrepresentation at trial. 422 U.S. at 819. We noted that Faretta 

### stands for "'the conviction that a defendant has the right to decide, within limits, the type of defense he wishes to mount."' Jones, 

### 99 Wn.2d at 740 (quoting United States v. Laura, 

### 607 F.2d 52, 56 (3d Cir. 1979)); see also North Carolina v. Alford, 

### 400 U.S. 25, 33, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970) (quoting Tremblay v. Overholser, 

### 199 F. Supp. 569, 570 (D.D.C. 1961) ("[Courts] should not 'force any defense on a defendant in a criminal case."')). In line with Faretta 

### andAlford, 

### we reasoned that "'respect for a defendant's freedom as a person mandates that he or she be permitted to make fundamental decisions about the course of proceedings."' Jones, 

### 99 Wn.2d at 742 (quoting Frendak, 

### 408 A.2d at 376). Such respect demands that "courts do not impose
... defenses on unwilling defendants." !d. 

### at 743. Imposing a defense on an unwilling defendant impinges on the independent autonomy the accused must have to defend against charges. As the Court proclaimed in Faretta 

### in upholding the right to selfrepresentation, "[u]nless the accused has acquiesced
... , the defense presented is not the defense guaranteed him by the Constitution, for, in a very real sense, it is not his 

### defense." Faretta, 

### 422 U.S. at 821. We concluded that the court must honor the intelligent and voluntary choice of a competent defendant to forgo an insanity defense. Jones, 

### 99 Wn.2d at 746. Our reasoning in Jones 

### was followed in State v. McSorely, 

### 128 Wn. App. 598, 116 P.3d 431 (2005). There, the State requested an instruction on an
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### 86145-5

affirmative defense to the charge of child luring, an instruction to which the defendant "most strenuously" objected. Id. 

### at 603. Nevertheless, the trial court granted the State's motion, instructing thejurythat '"[i]t is a defense to a charge of luring that
... [t]he defendant's actions were reasonable under the circumstances[] and . . . [ t]he defendant did not have any intent to harm the health, safety, or welfare oftheminor."' Id. 

### (quoting Clerk's Papers at 13). Relying on Jones, Alford, 

### and Faretta, 

### the Court of Appeals reversed, holding a new trial was required. McSorely, 

### 128 Wn. App. at 605. QuotingJones, 

### the McSorely 

### court emphasized that the Sixth Amendment prohibits courts from "'forc[ing] any 

### defense on a defendant in a criminal case."' Id. 

### (internal quotation marks omitted) (quotingAlford, 

### 400 U.S. at 33). In concluding the Sixth Amendment gives a defendant the right to forgo an available affirmative defense, the McSorely 

### court correctly extended Jones. 

### As with the decision to plead guilty by reason of insanity, the decision to offer an affirmative defense cannot be forced on an unwilling defendant. See Jones, 

### 99 Wn.2d at 743. An affirmative defense places a burden ofproofon the defendant, thus shaping the defense by introducing elements it must prove. This process may influence a wide range ofstrategic trial decisions, such as who is called to testify, the questions asked on direct- and cross-examination, and what arguments are made in summation. Instructing the jury to consider an affirmative defense over the defendant's objection interferes with the accused's right to present a chosen defense. The Sixth

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### Amendment places this important strategic decision squarely in the hands ofthe defendant, notthe prosecutor or the trial court. C. Instructingthe Jury on "Reasonable Belief," Over Coristine's Objection, ViolatedHis Sixth Amendment Rights Coristine maintains he elected to forgo an affirmative defense as a matter of strategy; his sole defense was that the State failed to prove its case. The State disputes this, arguing that Coristine raised the affirmative defense by testifying that L.F. did not "appear" drunk. But Coristine's testimony served to cast doubt on the State's case, consistent with his defense that L.F. was capable ofconsent. There is
no basis to conclude Coristine offered this testimony in support of an unargued defense that he reasonably believed 

### that L.F. was not mentally incapacitated or physically helpless. Rather, it supported his argument that she was not in fact incapacitated or helpless. Writing approvingly of the trial court's decision to force an affirmative defense on Coristine, the Court of Appeals argued that failure to give the instruction "might well have been error." Coristine, 

### 161 Wn. App. at 951. This is incorrect. While an attorney's failure to recognize and raise an affirmative defense
can fall below the constitutional minimum for effective representation, the record here confirms a valid strategic decision. See In re Pers. Restraint of Hubert, 

### 138 Wn. App. 924, 928-29, 158 P.3d 1282 (2007) ("'[S]trategic choices made after thorough investigation oflaw and facts relevant to plausible options are virtually

-8-State v. Coristine (Brandon S.), 86145-5
unchallengeable."' (quoting 

### Strickland v. Washington, 466 U.S. 668, 690-91, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984))). The distinction is between failing to recognize a defense and validly waiving
one. Once a trial court determines that a defendant's waiver of an affirmative defense is voluntary and intelligent, it cannot direct the defense it believes is necessary to ensure constitutionally effective counsel at the expense of the defendant's right to control a chosen defense. Because Coristine validly waived his right to mount a reasonable belief affirmative defense, the trial court violated his Sixth Amendmentrights whenit failed to respecthis decision. D. The SixthAmendmentViolation Is Not Harmless We must determine whether the constitutional error in this case warrants vacating Coristine's conviction and remanding for a new trial. Some fundamental constitutional errors "are so intrinsically harmful as to require automatic reversal," but for "all other constitutional errors," we apply harmless-error analysis to determine whether reversal is appropriate. 

### See Neder v. UnitedStates, 527 U.S. 1, 7, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999). In 

### Jones, we recognized that a violation of the defendant's right to control his own defense may be subject to review for harmless error. 99 Wn.2d at 748. 1

1 To be clear, absolute denial of a defendant's right to control the defense is structural error and not subject to harmless-error analysis. See, e.g., McKaskle, 465 U.S. at 177 n.8. However, we review lesser deprivations ofthis right for harmless error. See Jones, 99 Wn.2d at 748. As in Jones, the error here was not an absolute deprivation. We therefore presume that it caused prejudice and reverse and remand for a new trial unless the State proves it was harmless beyond areasonable doubt. Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). -9-State v. Coristine (Brandon S.), 86145-5

The notion of constitutional harmless error arrived relatively late to American courts. Although federal law and procedure had long allowed appellate courts to decide cases "without regard to errors or defects which do not affect the substantial rights ofthe parties," 28 U.S.C. § 2111, and although all 50 states had harmless-error statutes in place by 1967, the Supreme Court's ratification of 

### constitutional harmless-error analysis in 

### Chapman v. California, 386 U.S. 18, 22, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967) was a landmark. 

### Chapman held that iftrial error is ofconstitutional magnitude, prejudice is presumed and the State bears the burden of proving it was harmless beyond a reasonable doubt. 

### !d. at 24; 

### accord State v. Irby, 170 Wn.2d 874, 886, 246 P.3d 796 (2011). The Court announced this rule as a constitutional minimum protection for the rights ofaccused persons, observing that "we cannot leave to the States the formulation of the authoritative laws, rules, and remedies designed to protect people from infractions by the States of federally guaranteed rights." 

### Chapman, 386 U.S. at 21. Although Justice Gonzalez's dissent today invites the court to adopt an imaginative newtest for harmless error, the parties did notbriefthis issue and we did not grant review to consider it. We therefore decline to engage in an unnecessary debate aboutthe merits ofourpresenttest. Underthe 

### Chapman standard, the State has not demonstrated that forcing an affirmative defense upon Coristine after the close ofthe evidence was harmless beyond a reasonable doubt. Preliminarily, the error in this case was not merely the giving ofa gratuitous or unnecessary correct instruction. This is because the injury
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### was not to Coristine's right to be tried by ajury applying accurate instructions of law. Instead, the trial court erred by denying Coristine his Sixth Amendment right to mount the defense of his choosing. McKaskle, 

### 465 U.S. at 177-78. 

### A deprivation ofthis right respecting individual autonomy is error even ifthe trial court's instructions in the law are a model ofaccuracy. Indeed, ifseizing control
over a defendant's trial strategy were harmless so long as the court correctly instructed the jury in the defense it chose, little would remain of the Sixth Amendment right to control one's defense. On the facts ofthis case, the presence ofthe unwanted instruction was not inconsequential to the jury's deliberations. First, the instruction risked confusion between the jury's consideration of the victim's capacity and Coristine's "reasonable belief' in her capacity, an issue that had not been directly addressed in the evidence. We need not determine whether the affirmative defense instruction shifted the burden ofproofto the defense on the issue of capacity, as Coristine asserts. It 

### certainly impacted jury deliberations by interfering with Coristine's straightforward presentation of his sole defense-that L.F. was in fact not incapacitated. The likelihood ofconfusion was compounded here by the fact that the jury heard no testimony about reasonable belief, as the instruction was not forced upon Coristine until after the close ofthe evidence. Chief Justice Madsen, in a separate dissent, argues that the timing of the decision to give the affirmative defense instruction-after the close of the evidence-was somehow less 

### prejudicial than the alternative. Dissent (Madsen,
-11-State v. Coristine (Brandon S.), 86145-5


### C.J.) at 4. The argument rests solely on a comparison between this case and Jones, 

### i.e., at least Coristine was not required to maintain inconsistent theories ofdefense from the start ofthe trial, as was Jones. But we cannot conclude Coristine suffered less prejudice as a result. Because the trial court in Jones 

### forced the defendant to mount an insanity defense at the outset ofhis trial, Jones had the opportunity to present evidence, expert or other testimony, and cross-examination addressing this alternative theory. Jones, 

### 99 Wn.2d at 738-39. In Coristine's case, the affirmative defense was presented to thejury after the opportunity had passed for Coristine to offer evidence to support it. 3 VRP at 393, 399. We cannot agree with Chief Justice Madsen that a defendant who does not have the opportunity to support an unwanted defense by offering evidence somehow suffers less prejudice than one who does? The presence ofan unwanted affirmative defense instruction is particularly problematic in a case, such as this, that involves the relative credibility ofahandful of eyewitnesses, including the victim and the accused. We do not share the dissenters' confidence that the instruction was inconsequential or that the two defenses were essentially consistent. Indeed, the mere fact that the parties thought
2 We also note that the errors in Jones, while different from those here, do not constitute the necessary or sufficient facts for a finding ofreversible error. The question of whether error is harmless or reversible does not rest on bright-line rules; it is contextual and arises from the facts ofthe case. Delaware v. VanArsdall, 475 U.S. 673, 684, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986) (reciting "ahost offactors" to consider in determining whether error was harmless beyond a reasonable doubt). The question here is not whether or to what degree this case resembles Jones, but whether the error was harmless beyond a reasonable doubt. At any rate, Coristine was in fact saddled with inconsistent defenses during the critical period ofthejury's deliberations. -12-State v. Coristine (Brandon S.), 86145-5



### it mattered and strenuously debated the g1vmg of the affirmative defense instruction should undermine such confidence. Given the nature of the issues involved, the absence of an opportunity to present evidence tailored to the affirmative defense, and the tension between Coristine's chosen defense and the theory of "reasonable mistake," we cannot say that instructing the jury over his objection was not the "slight impetus" that affected the verdict. 

### Glasser v. United States, 315 U.S. 60, 67,62 S. Ct. 457, 86 L. 

### Ed. 680 (1942). Accordingly, we hold that the violation ofCoristine's Sixth Amendment right to control his defense was notharmless beyond a reasonable doubt. Under the 

### Chapman standard, a new trial is required. CONCLUSION The trial court violated Coristine's Sixth Amendment right to control his
own defense by instructingthejury on an affirmative defense that Coristine did not want to pursue. This constitutional violation was not harmless beyond a reasonable doubt. We reverse the Court ofAppeals and remand for a newtrial.

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### WE CONCUR:State v. Coristine (Brandon S.)

No. 86145-5 MADSEN, C.J. (dissenting)-! agree with much ofwhatthe majority says about the right ofa criminal defendantto control his or her defense. However, I disagree with the majority's discussion and resolution ofharmless error. Although Justice Gonzalez's dissent correctly concludes thatthe error is harmless, I am reluctantto adopt a framework for harmless error for which neither ofthe parties advocates. Thus, I write separately to affirm. Discussion As Justice Gonzalez's dissent correctly notes, we follow the United States Supreme Court'sprecedent in reviewing federal constitutional error in criminal trials. Dissent (Gonzalez, J.) at 5. Applyingthatprecedent, it is clearthat "most constitutional
errors can be harmless." Arizona v. Fulminante, 499 U.S. 279, 306, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991). There is a very limited class ofcases-cases involving structural error-inwhich a harmless error analysis is inappropriate. See Neder v. UnitedStates, 527 U.S. 1, 7-8, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999) (collecting cases involving structural error). The error in this case does not fit withinthis small class ofcases.No. 86145-5 Madsen, C.J., dissenting Rather, as the majority correctly notes, the error here, in the broadest sense, is a violation ofthe Brandon Coristine's rightto control his defense. See generally State v. Jones, 99 Wn.2d 735, 664 P.2d 1216 (1983). More specifically, however, the error was giving an affirmative defensejury instruction over Coristine's objection. Itis the effect ofthat
errorthat we must evaluate. InJones, this courtheldthat interposing aplea ofnot guilty by reason ofinsanity
overthe defendant's objectionviolatedthe defendant's right "toplead guilty and/or control his own defense." !d. at 740. In deciding whetherthe defendant was entitled to a
new trial, the courtreviewedthe evidence and the defense theories that were argued. The court first observed thatthe most "obvious"prejudice to the defendantwas that "thejury
was faced withtwo defense attorneys arguing conflicting defense theories."·!d. at 748. 1 The court went on to review all ofthe evidence that would have been excluded had the insanity pleanotbeen entered and thejury notbeen instructed on the defense, including the testimony ofthe defense psychiatrist. Although the Jones court was unclear regarding its harmless error test, it concluded that "[i]n light ofthese evidentiary considerations, it is impossible for us to conclude thatMr. Jones was not prejudiced by thetrial court's error." !d. at 750. SinceJones was decided, this courthas clarifiedthat in the case ofconstitutional error, "we must 'concludebeyond areasonable doubtthatthejury verdictwould have
1The trial court appointed amicus counsel to argue the insanity defense. "While one attorney was arguing that the defendant was acting as 'areasonable and ordinarily cautious and prudent person' (Clerk's Papers, at 22 (self-defense instruction)), the other was arguing thathe was acting under the influence ofparanoid delusions." Jones, 99 Wn.2d at 748. 2No. 86145-5 Madsen, C.J., dissenting
beenthe same absent the error."' State v. Brown, 147 Wn.2d 330, 341, 58 P.3d 889 (2002) (quotingNeder, 527 U.S. at 19). Applying this test I would holdthe error in this
case was harmless.2 Consideringthe nature ofthe error, the first question is whether, by instructingthe jury on the affirmative defense, the defendant was saddled with inconsistent defenses. The answer is no. Coristine was chargedwith second degree rape underRCW 9A.44.050(1)(b). In order to convict Coristine under that statute, the State was required to prove that Coristine engaged in sexual intercourse with another personwho was incapable ofconsentby reason ofbeing mentally incapacitated orphysically helpless. Coristine's theory ofdefense was that the complaining witness consentedto sex and that she was competentto consent. Coristine intended to make the Stateprove its case by proving incompetency to consent. The "to convict instruction" did exactly that and nothing about the affirmative defense instruction contradictedthat defense theory. Indeed, Coristine's evidence, ifbelieved, provedboththat the complainingwitness was competentto consent andthat Coristine reasonably believed she was competent. Coristine also complains thatby instructing thejury on the "reasonablebelief' affirmative defense, the trial court shiftedthe burden ofproofto the defense. However, the State was required to prove mental incapability before thejury could even consider

2 The majority criticizes my reliance onJones for the factors to consider in making a harmless error determination. Majority at 12 n.2. However, Jones is the only case from this courtthat has recognized a constitutional right ofa defendantto control his or her defense orto apply a harmless error analysis to the violation ofthis right. Thus, a comparison withJones is very instructive. 3No. 86145-5 Madsen, C.J., dissenting
the affirmative defense instructionto which Coristine objected. As the Court ofAppeals recently said in State v. Powell, 150 Wn. App. 139, 157 n.12, 206 P.3d 703 (2009), "[t]his affirmative defense was relevant only once the State proved the elements ofthe offense. Thus, a 'reasonablebelief' instruction would nothave shiftedthe initial burden ofproof'' to the defendant. Even without the instruction, thejury could have believed the victim's testimony and found Coristine guilty. Finally, in Jones, the court also considered whether any evidence was admitted that would otherwise have been omitted absentthe error. Unlike inJones, where the trial court entered aplea ofnot guilty by reason ofinsanity, appointed a second attorney to argue insanity, and permittedpsychiatric testimony during the trial, the trial courthere did not give the offending instruction until after the parties had rested, and Coristine pointsto no evidence that was improperly admitted due to the court's error. 3 Usingthetest adopted by this court, I wouldholdthatthe error was harmless and thatthe conviction mustbe affirmed.

3 The majority criticizes my harmless error analysis but offers scant analysis ofits own. Boiled down, the majority reverses this convictionbecause it says the affirmative defense instruction "risked confusion" by "interfering" with Coristine's "sole" defense that L.F. was not incapacitated. Majority at 11. Yet, the majority does not argue thatthe instruction shiftedthe State's burdento prove L.F.'s incapacity or explainwhythejurywould evenreach the affirmative defense instructionunless it had determined that the State had met its burdento show L.F. was incapacitated. The only otherpointuponwhichthe majority relies-thatthe case involved the credibility ofahandful ofwitnesses-is left completely unexplained. 4No. 86145-5 Madsen, C.JI, dissenting

5State v. Coristine, No. 86145-5 (GonzaJez, J. dissenting)

No. 86145,.5 GONZALEZ, J. (dissenting)-Ajury convicted Brandon Coristine ofraping his
newroommate onher first night at her new place ofresidence. I agree withthe majority that giving an affirmative defense instruction over Coristine's objection violated his SixthAmendmentrightto control his own defense. Butnot every error merits reversal. This one certainly does not. I respectfully dissent. I also write separately to observe that wehave not established a clear framework ofharmless errorreview in Washington. Until webuild and consistently follow such a framework, our opinions inthis areawill be confusing and inconsistent, and review for harmless error will continue to be "an arbitrary exercise of judicial authority." Dennis J. Sweeney,AnAnalysis of Harmless Error in Washington: A PrincipledProcess, 31 GONZ. L. REV. 277, 323 (1996). We can do better. A review ofour case lawreveals workable standards and suggests a framework that would foster clarity and consistency inthis difficult area of the law. Inmyview, this court should explicitlyrequire athree-step process for appellate review ofconstitutional errors at criminaltrials. First, an appellate court should evaluate whether the error in question requires automatic reversal-what is sometimes called "structural" error. See, e.g., State v. Frost, 160 Wn.2d 765, 779-82,State v. Coristine, No. 86145-5 (Gonzalez, J. dissenting) 161 P.3d 361 (2007). Ifthe error is amongthese rarest oferrors, the court should simply reverse. Second, ifthe error is not structural, the court should consider whether the error was plausiblyrelevant to the verdict. See, e.g., State v. Bobenhouse, 166 Wn.2d 881, 894, 214 P.3d 907 (2009). Ifthe court is convinced, beyond a reasonable doubt, thatthe error was notplausiblyrelated to the verdict, the court should affirmthe conviction. Third, ifthe error is plausiblyrelevantto the challenged guiltyverdict, the court should reverse unless it is persuaded, beyond areasonable doubt, in light ofthe full record, that the error did nottip the scales from innocence to guilt. See, e.g., State v. Rice, 120 Wn.2d 549, 569, 844 P.2d416 (1993); State v. Easter, 130 Wn.2d 228, 242, 922 P.2d 1285 (1996). This three-step process would provide our courts with a clear, workable, and effective way ofconducting harmless
errorreview and adjudicating whether a constitutional error attrial is harmless. It would foster clearer, more consistent, and more objective precedents. Itwouldhelp '"cleansethejudicialprocess ofprejudicial error withoutbecoming mired in harmless error."' State v. Grenning, 169 Wn.2d 47,59 n.8, 234 P.3d 169 (2010) (quoting ROGERJ. TRAYNOR, THERIDDLE OF HARMLESS ERROR 81 (1970)). 1. Harmless Error: FederalStandards United States Supreme Courtprecedenthas establishedthe minimum requirements state courts must follow in evaluating constitutional error. See Chapman
v. California, 386 U.S. 18, 20-21, 87 S. Ct. 824, 17 

### L. Ed. 2d 705 (1967). An otherwise valid conviction should notbe set aside where a reviewing court is

2State v. Coristine, No. 86145-5 (Gonzalez, J. dissenting) convincedbeyond areasonable doubtthatthe error was harmless. Errors are inevitable, and many errors, even constitutional ones, do not call the fundamental fairness ofthe trial into questionnor affectthe final outcome. See Delaware v. Van Arsdall, 475 U.S. 673,681, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986). Upholding fair criminal convictions "promotes public respect for the criminalprocess by focusing on the underlying fairness ofthe trial ratherthan onthe virtually inevitable presence of immaterial error." VanArsdall, 475 U.S. at 681. Itavoids the myriad costs associated withretrials, bothto thejustice system andto the witnesses haled into court again and again. See UnitedStates v. Hasting, 461 U.S. 499, 509, 103 S. Ct. 1974,76 L. Ed. 2d 96 (1983). In contrast, reversing for harmless errors "'encourages litigants to abuse thejudicialprocess and bestirs thepublicto ridicule it.'" VanArsdall, 475 U.S. at 681 (quoting TRAYNOR, supra, at 50). There are a limited number oferrors thatwarrant automatic reversal. See, e.g., UnitedStates v. Gonzalez-Lopez, 548 U.S. 140, 148-50 & n.4, 126 S. Ct. 2557, 165 L. Ed. 2d 409 (2006); Neder v. UnitedStates, 527 U.S. 1, 8, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999). Such errors are sometimes referred to as "structural" errors. See, e.g., Gonzalez-Lopez, 548 U.S. at 148. An error maybe deemed structural because it is intrinsically harmful, Neder, 527 U.S. at 7, because it necessarily brings into question the fundamental fairness or reliability ofthe entire trial process, id. at 8-9;Arizona v. Fulminante, 499 U.S. 279, 309-10, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991), because assessing its effect in a given case is highly difficult or impossible, Gonzalez3State v. Coristine, No. 86145-5 (Gonzalez, J. dissenting) Lopez, 548 U.S. at 149 n.4, 150, or because the error substantially implicates some weighty interest otherthan ensuring a reliable and accurate outcome, 

### id. at 149 n.4; McKaskle v. Wiggins, 465 U.S. 168, 177 n.8, 104 S. Ct. 944, 79 L. Ed. 2d 122 (1984). I wholeheartedly agree withthe majority that the error here was not structural. For all other constitutional errors, the appellate court must consider whether the
error actually might have affected the trial's outcome in order to determine whether reversal is appropriate. See, e.g., Neder, 527 U.S. at 17-19. Ifthe court is persuaded, beyond areasonable doubt, that the error did not affectthe verdict, the conviction should be upheld. VanArsdall, 475 U.S. at 681; see also Chapman, 386 U.S. at 24. Most constitutional errors are subjectto harmless errorreview, Gonzalez-Lopez, 548 U.S. at 148, and most such errors are indeed harmless,Hasting, 461 U.S. at 509. The court will consider any plausible effects that such an error mighthave had on a rationaljury, and the error will be deemed harmless ifthe reviewing court concludes beyond areasonable doubtthat "thejuryverdict wouldhave beenthe same absent the error" and thus "the error 'didnot contribute to the verdict obtained."' Neder, 527 U.S. at 17 (quoting Chapman, 386 U.S. at 24). Neder was convicted offraud for using wildly inflated real estate appraisals to
secure loans, concealinghis ownership interests invarious shell corporations, and falsifying documentation. 

### !d. at 4-5. Thetrial courtfailed to instructthejurythat the defendant's false statements must have been "material[]" to convict, omitting an element ofthe charged crimes. 

### !d. at 6. The evidence establishing the materiality of
4State v. Coristine, No. 86145-5 (Gonzalez, J. dissenting) the false statements was uncontroverted and overwhelming. See Neder, 527 U.S. at 6, 18-20. Thus, the court had little difficulty determining the error was harmless beyond
areasonable doubt. TheUnited States Supreme Courtrequires thatharmless error analysis be thorough and substantive. The appellate court must consider the error inthe context ofthe trial as a whole. Neder, 527 U.S. at 19. The appellate court also mustprovide substantive reasoning**a~d** analysis in support ofits conclusions. See Clemons v. Mississippi, 494 U.S. 738,753-54, 110 S. Ct. 1441, 108 L. Ed. 2d725 (1990) (vacating state court's "crypticholding" ofharmlessness that was unsupported and "difficultto accept" without "adetailed explanationbased onthe record"). Requiring thorough review ofthe record and detailed explanationhelps to ensure thatharmless
errorreview is conductedproperly and consistently over time. State courts must comply withthese minimum federal requirements and abide by the standards thatthe United States Supreme Courthas established. Beyondthese established federal standards and minimumrequirements, states are leftto develop their own concrete and detailed frameworks and standards, consistent with federal law, to govern harmless error review in state courts. See, e.g., State v. Guloy, 104 Wn.2d 412, 425- 26,705 P.2d 1182 (1985); State v. Tollardo, 2012-NMSC-8, 275 P.3d 110. 2. Harmless Error: Washington Washington does nothave a clear, workable, and effective legal framework to governjudicialreview ofconstitutional errors at criminal trials. See, e.g., Sweeney,

5State v. Coristine, No. 86145-5 (Gonzalez, J. dissenting) supra, at 287 (noting that our cases have done "little
...to provide the analytical framework necessary to apply the doctrine ofharmless error"). As aresult, our adjudications ofharmlessness have beenunpredictable. The closestthis courthas
come to adopting a comprehensive framework to govern harmless errorreview was in Guloy, whenwe intended "to settle the question ofwhat type ofstandardthis court will use in its harmless error analysis," and with little discussion or explanation selected '"the overwhelminguntainted evidence"' test over "the contributiontest." 104 Wn.2d at 425-26; see also State v. Evans, 96 Wn.2d 1, 6-10, 633 P.2d 83 (1981) (Brachtenbach, C.J., concurring) (discussing these two tests). Specifically, we decidedthatharmlessness would not depend onwhether the error couldhaveplayed a part in the actualjury's determination ofguilt (the contributiontest) and decidedthat harmlessness would instead depend on whether "theuntainted evidence is so overwhelming that it necessarily leads to afinding ofguilt" (the overwhelming evidence test). Guloy, 104 Wn.2d at 426. The contributiontest has since been rejected bythe United States Supreme Court. See Neder, 527 U.S. at 11-13, 17-18. Unfortunately, the overwhelming evidence test fares little better. The overwhelming evidence test ignores awide variety ofpotential trial errors with differing effects and is an overly broad standard thatproperly applies in only a limited set ofcircumstances. First, the standard ignores that some trial errors are plausiblyrelevant only to discrete elements or issues. InNeder, for example, thejury instructions omitted one element ofthe crime, and that error was properly found

6State v. Coristine, No. 86145-5 (Gonzalez, J. dissenting) harmless because ofuncontested and overwhelming evidence ofthe omittedelement, not ofguilt generally. 527 U.S. at 18. Second, the overwhelming evidence test ignores that some trial errors are notplausiblyrelevantto the verdict at all. For example, inState v. Kroll, 87 Wn.2d 829, 558 P.2d 173 (1976), thejuryinstructions erroneously shifted the burden ofproofto the defendant as to a certain element of second degree murderbutproperly instructed thejury as to first degree murder. The juryconvicted on first degree murder, and we rightly concludedthatthe error was harmless. 87 Wn.2d at 840-41. Our conclusion did not depend on any quantum of evidencebecause the error was not evenplausibly relevantto the challengedverdict in the first place. Third, the overwhelming evidence test ignores thatthe amount of untainted evidence necessary to render an error harmless beyond areasonable doubt depends upon the force withwhichthe error plausibly might have swayedthejury toward guilt. See Glasser v. UnitedStates, 315 U.S. 60, 67-68, 62 S. Ct. 457, 86 L. Ed. 680 (1942). In sum, the overwhelming evidence test is appropriate only when an
error is plausibly relevantto the entire verdict and might have exerted substantial force in swaying thejurytoward guilt. Itis probably for this reasonthattheUnited States Supreme Court originally cautioned against "overemphasis" on "'overwhelming evidence'" in harmless error review. Chapman, 386 U.S. at 23. In light ofthe overwhelming evidence test's clear failings, it is not surprising thatthis courthas not consistently applied it. Instead, wehave frequently determined harmlessness not by weighing the error against the evidence but by consideringthe
7State v. Coristine, No. 86145-5 (Gonzalez, J. dissenting) limited relevance ofan error to the challenged verdict. In some cases, errors have beenrelevant only to discrete elements or issues, and thus, indetermining harmlessness we have considered only evidence relatedto those elements or issues. See, e.g., State v. Watt, 160 Wn.2d 626, 639-40, 160 P.3d 640 (2007); State v. Thomas, 150 Wn.2d 821, 844-45, 83 P.3d 970 (2004). Inmany cases, errors simply have not beenplausibly relevantto the challengedverdict, and we have found those
errors harmless for that reason alone, regardless ofthe evidence ofguilt. See, e.g., Bobenhouse, 166 Wn.2d at 894-95; State 

### v. Berube, 150 Wn.2d 498, 509, 79 P.3d 1144 (2003). 1Thus, although we often speak ofthe overwhelming evidencetest as if it were our universal standard for harmlessness, see, e.g., Frost, 160 Wn.2d at 782; Watt, 160 Wn.2d at 635-36; Guloy, 104 Wn.2d at426, we also often ignore it. This inconsistency will continue until we identify a clear, workable, and effective framework to governreview ofconstitutional errors at criminaltrials.

1Myriad examples exist. See, e.g., State v. Clark, 143 Wn.2d 731,776,24 P.3d 1006 (2001) ("Clark's shackling on the first day ofvoir dire was more than logically offset by overtwo weeks ofobserving Clark in the courtroomwithout shackles."); State v. Bourgeois, 133 Wn.2d 389, 407-08, 945 P.2d 1120 (1997) (improper communicationwithjurorheld harmless because no information was '"communicated
... to thejurythat was in any mannerharmful to the appellant"' (quoting State v. Johnson, 56 Wn.2d 700, 709, 355 P.2d 13 (1960))); State v. Handran, 113 Wn.2d 11, 16,775 P.2d 453 (1989); State v. Caliguri, 99 Wn.2d 501, 509, 664 P.2d 466 (1983) (tape improperlyplayedtojury outside defendant's presence could notplausibly have beenharmful notwithstanding its containing a "colorful expression of [an] agent's desire to place Caliguri under arrest, a desire which Caliguri'spresence at trial must already have made thejury aware of''); State v. Bonds, 98 Wn.2d 1, 17-18,653 P.2d 1024 (1982); State v. Hall, 95 Wn.2d 536, 539-40, 627 P.2d 101 (1981) (failure ofinstructionto discriminate betweenvictims irrelevant where only evidence was ofindiscriminate firing at all three alleged victims); Kroll, 87 Wn.2d at 840-41 (erroneous instructionrelated to charge upon which defendant was found not guilty). 8State v. Coristine, No. 86145-5 (Gonzalez, J. dissenting) 3. Synthesis Thethree-step framework Iproposereflects existing federal standards and muchofour ownprecedent. Ifadopted explicitly, this framework wouldprovide a clear, workable, and effective way ofpromoting consistent andjustadjudications in this difficult area ofthe law. First, the reviewing court must determine whether the error warrants automatic reversal or is instead subject to constitutional harmless error analysis. See, e.g., Gonzalez-Lopez, 548 U.S. at 148-50 & n.4; Frost, 160 Wn.2d at 779-82. Ifan error is structural, the defendant's convictionmustbe reversed. Second, ifthe error is subjectto harmless error analysis, the State must show that the errorwas notplausibly relevantto the verdict. See, e.g., Kroll, 87 Wn.2d at 840-41. Properly determining whether and how a giventype oferror had thepotential to sway an honest, fair-minded, and reasonablejury away from innocence and toward guiltmust depend upon logic, common sense, experience, and scientific inquiry. Mere speculation is insufficientin light ofthe fact that "academic" and "technical"
errors are the very reason the harmless error doctrine was created inthe first place. Guloy, 104 Wn.2d at 426. Whether a given error was plausibly relevantto aparticular verdict will depend upon the context ofthe error and oftenwill require a searching review oftherecord. See, e.g., State v. Bonds, 98 Wn.2d 1, 17-18,653 P.2d 1024 (1982) Uury'srelated finding rendered instructional error logically irrelevant); State v. Maupin, 128 Wn.2d 918, 929, 913 P.2d 808 (1996) (noting that "awitness's proffered

9State v. Coristine, No. 86145-5 (Gonzalez, J. dissenting) testimony [may be] so incredible that its exclusion is harmless error," but such a determination must be made "fromthe record"). Ifthe court concludes, beyond a reasonable doubt, thatthe error was notplausiblyrelevant to the verdict, it mustbe found harmless. Third, ifthe error was plausiblyrelevantto the verdict, the State must establish thatthe error could notplausiblyhave beenthe cause ofa guilty verdict from an honest, fair-minded, and reasonablejury. See, e.g., Rice, 120 Wn.2d at 569; Easter, 130 Wn.2d at 242; Watt, 160 Wn.2d at 639-40. This step requires consideration ofall relevant untainted evidence and a determination ofwhether eliminatingthe error plausibly couldhave tipped the scales from guiltto innocence. A searching review of the record often will be necessary. See, e.g., State v. Anderson, 171 Wn.2d 764, 770, 254 P.3d 815 (2011). The strongerthe plausible sway ofthe error, the more compellingthatthe relevant untainted evidence mustbe. See Glasser, 315 U.S. at 67- 68. Ifthe errorplausibly could have exerted substantial force onthejuryin some way, overwhelming evidence to the same effect will be necessary to find the error harmless beyond areasonable doubt. Some errors are egregious enoughthatthe State will bear a significantburdenpersuading the courtthatthe error did not contribute to the verdict. See, e.g., State v. Monday, 171 Wn.2d 667, 680-81, 257 P.3d 551 (2011). Once again, these determinations mustbe informed by logic, common sense, experience, and scientific inquiry. In the end, to find an error harmless, the reviewing courtmustbe convinced, beyond areasonable doubt, that no honest, fair-minded, and

10State v. Coristine, No. 86145-5 (Gonzalez, J. dissenting) reasonablejuryplausiblywouldhavebeen swayed from innocenceto guilt because of the error. Ifanerrorwas harmless, the conviction shouldnotbe disturbed. Although it is unlikelythat any framework will everrenderharmless error analysis entirely objective and consistent, faithful adherence to this three-step process will allow for the development ofuseful precedent andproper adjudication of harmlessness. This is true especiallybecause at all steps ofthis process, areviewing court mustprovide substantive analysis and reasoning in support ofits conclusions. See Clemons, 494 U.S. at 753-54. 4. Application Reversal is improper inthis case. As the majorityproperlynotes, imposing this instructionwas not structural error. Majority at 9 n.1. Itwas also notplausibly relevantto the guiltyverdict, and clearly did nottip the scales from innocence to guilt. I ampersuaded, beyond a reasonable doubt, thatthe errorwas harmless and Coristine's conviction shouldbe upheld. Coristine does not challengethe legal accuracy ofthe instructionitself. Such a challenge wouldnot succeed; it is drawn from the patternjuryinstructions and is based onthe statutorylanguage. Clerk'sPapers (CP) at 20; 11 WASHINGTON PRACTICE: WASHINGTONPATTERNJURY INSTRUCTIONS: CRIMINAL 19.03, at 296 (3d ed. 2008). Instructional error is generally subjectedto constitutionalharmless error review. SeeHedgpeth v. Pulido, 555 U.S. 57, 60-61, 129 S. Ct. 530, 172 

### L. Ed. 2d 388 (2008); State v. Jones, 99 Wn.2d 735, 748-49, 664 P.2d 1212 (1983). Giving an

11State v. Coristine, No. 86145-5 (Gonzalez, J. dissenting) affirmative defense instruction over defendant's objection does implicate the defendant's dignity and autonomy. See majority at 4-5. But standing alone, it does not warrantreversal unless, at least, itplausibly mighthave affected the outcome of his trial. Inmyview, the affirmative defense instruction simply was notplausibly relevant to thejury'sverdict. The decisionto give the gratuitous instructionwas rendered only afterthe parties rested, and neitherparty so much as mentioned the affirmative defense in closing arguments. Itcould have had no effect ontrial strategy
or presentation. The instructionwas aproper statement ofthe law. See RCW 9A.44.030(1). Itwas not misleading. Itcast no doubt on the State's burden ofproving Coristine's guiltbeyond areasonable doubt. I also cannot see howthis instruction might have confusedthejury. Contra majority at 11. One can always speculate about fanciful ways that an error mighthave affected the final verdict. InKroll, for example, we couldhave speculated about the jurybecoming confused because ofthe erroneous instruction on second degree murder and then also speculated about the possible effects ofthattheoretical confusion on the first degree murder conviction. But such confusionwould nothave beenplausible. We instructjurorsto considerthe greater charges first beforereaching the lesser degree. E.g., 11A WASHINGTONPRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 155.00, at 626 (3d ed. 2008). Since thejurors convicted on the greater charge, they would not have reached the lesser and any chance of

12State v. Coristine, No. 86145-5 (Gonzalez, J. dissenting) confusion wouldhave been so remote as to be dismissed beyond areasonable doubt. In contrast, as aresult ofthe forced insanity defense, there was an actual conflict between Jones's defense and the defense forced upon him, andpotentially damaging psychiatric evidence was admitted. Jones, 99 Wn.2d at 748-50. Nothing like what happened inJones happened here. There simply was no conflictbetweenthe statutory affirmative defense that "the defendant reasonably believed that [the victim] was not mentally incapacitated," CP at 20, and the defendant's theory ofthe case that the victim was notmentally incapacitated. Ifthe jurorshad found that "the defendant reasonably believedthat [the victim] was not mentally incapacitated orphysicallyhelpless," "it [was their] duty to return a verdict ofnot guilty." CP at 20. Ifthejurors concluded the state had not "provedbeyond a reasonable doubt" thatthe victim "was incapable ofconsentbyreason ofbeing physically helpless or mentally incapacitated," it was their "dutyto return a verdict of not guilty." CP at 16. Ifanything, the affirmative defense instructionhelped Coristine by giving thejury another way to acquit him. We can say-we should saythat we are confident, beyond a reasonable doubt, thatthe improper instruction did not contribute to the verdict. The actual evidencepresented inthis case confirms this. The rape tookplace at Coristine'sresidence. His victim hadjustmoved in and was one ofmany roommates. L.F. testified that she drank heavily at the party and went to bedwhenher headbegan to "spin[]." 2 Verbatim Report ofProceedings (VRP) at 92. The following day, L.F.
13State v. Coristine, No. 86145-5 (Gonzalez, J. dissenting)
went to the hospital and reportedto anurse andpolice officerthat she hadbeenraped while "in and out ofa conscious state" while intoxicated inher ownbed. 2 VRP at 182. L.F. testified that Coristine subsequently called her at the hospital and toldher "I think it was me, I'm sorry." Id. at 108. Coristine allegedly explained thathe hadbeen "really drunk" and asked L.F. not to tell his wife. Id. L.F. moved out ofthe house the next day. When a detective interviewedhim, Coristine admitted he had talked to L.F. on the phone while she was at the hospital, buthe denied making self-incriminating statements. Atthe same time, he told the detective that he was very intoxicated at the party and that he remainedunsure ofwhat he had done. Coristine's DNA (deoxyribonucleic acid) was retrieved from L.F.'sbody. Attrial, Coristine testified thathe initially did not remember having sex with L.F. but that "after a couple days [he] did remember everything." 3 VRP at 358, 380. He testified that when he came upstairs after the party in response to a noise, L.F. pulled him into her bedroom and goaded him into having sex withher. ld. at 354-55 ("I was kind ofintoxicatedbutI still had a level head, butI kind oflost my balance and fell into the room."). Coristine testified that he did notresist for fear ofhurting L.F. and that he did not call outfor help because he assumed they were making enough noise in the doorway for someone to hear. Coristine's sister-in-law testified that she was awake at the time and in herbedroom across the hall, but she did not hear any noise from L.F.'sroom.
14State v. Coristine, No. 86145-5 (Gonzalez, J. dissenting) The record as a whole clearly demonstrates Coristine's guilt. His version of events was implausible and self-serving. Numerous inconsistencies and farfetched allegations riddled Coristine's testimony. He acknowledgedthatL.F. had gone to sleep for the nightbutthen alleged that she later grabbed him andphysically forced him into her room. Coristine's assertion that he couldnotphysically resist L.F.'s advances without injuring her defies common sense. Coristine also alleged he did not call for help because he and L.F. were making a lot ofnoise-anexplanation which is dubious on its own and flatly was contradicted by the testimony ofathird party. Beyond areasonable doubt, the error did not contribute to the verdict. There will be real consequences to the court's decisiontoday. L.F. already had to endure the trial and testify; she should nothave to do so again, and she may not be able to do so again. See 2 VRP at 88 ("[I]t's something I'vetried really, really hard to block out as bestI can.... Lastnight things came backto me thatI didn'twantto
come back."). There is no guarantee that otherrelevantwitnesses will be available or remain able to recall relevant details. In either case, the resources expended at the first trial will have been needlessly wasted. Our constitution does not demandthis result. I respectfully dissent.

15State v. Coristine, No. 86145-5 (Gonzalez, J. dissenting)

16