RENDERED: SEPTEMBER 24, 2020

TO BE PUBLISHED

Supreme Court of Kentucky

2019-SC-0175-DG

MAURICE DEAL APPELLANT

ON REVIEW FROM COURT OF APPEALS

V. CASE NO. 2018-CA-0071

JEFFERSON CIRCUIT COURT NO. 15-CR-002748

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION OF THE COURT BY CHIEF JUSTICE MINTON

REVERSING AND REMANDING

A circuit court jury convicted Maurice Deal of second-degree 

manslaughter by complicity for which the jury recommended ten years’ 

imprisonment. On appeal, the Court of Appeals affirmed the judgment. We 

accepted discretionary review to address whether the trial court committed 

reversible error when it allowed the Commonwealth to present at trial a thirtyfive-minute video of a police interview with Deal—recorded while he was in jail 

on the underlying charges some two months post arrest—in which Deal is 

shown handcuffed and wearing an inmate’s jumpsuit. We conclude this 

evidentiary presentation violated Deal’s constitutional right to a fair trial. 

Accordingly, we reverse the judgment of conviction and sentence and remand 

the case to the trial court for a new trial.
2

I. BACKGROUND

Joseph Keith Otis was shot dead while in a fist fight in a nightclub 

parking lot, and the man with whom he fought, Maurice Deal, was shot 

through the hand and fled the scene. While Deal was at the hospital receiving 

treatment for his wound, two police officers separately questioned him and 

apparently informed him that Otis, too, had been shot. Two days later, police 

arrested Deal for murder and jailed him.1 Deal remained in jail, unable to post 

bail pending trial.

The video of Deal came about this way. An Assistant Commonwealth’s 

Attorney and the lead homicide detective—one of the two officers who had 

interviewed Deal at the hospital—met Deal and his attorney at the jail and 

questioned Deal. They recorded the questioning, which lasted about thirty-fiveminutes. Throughout the interview, Deal was handcuffed and wore a jumpsuit 

designed so that the wearer can be readily identified as an inmate. During the 

interview, Deal admitted that he started the fight with Otis, motivated by 

revenge for an earlier fight in which Otis bested him. But Deal denied knowing 

who fired the shots that killed Otis and wounded him.

Sometime before trial, the Commonwealth furnished Deal’s attorney an

audio version of the interview. But on the night before trial, Deal’s attorney

 

1 Deal’s brother, Norman, who was also at the club with Deal the night Otis was 

killed, was also indicted in connection with Otis’s death. By agreement, the 

indictments were severed for trial, and the record does not disclose the outcome of 

Norman’s case.
3

learned of the existence of a video version. Before trial started the following 

morning, he moved the trial court to prohibit the Commonwealth from 

displaying the video version to the jury. He argued that the video of Deal’s 

statement would unduly prejudice Deal before the jury because the jury would 

see Deal in custody, handcuffed and dressed as an inmate, two months after 

his arrest on the charges on trial. In response, the Commonwealth argued that 

the video would not prejudice Deal because it is to be expected that an 

individual charged with murder would be in custody pending trial. 

Without requiring the Commonwealth to respond as to why the audio

version would not suffice, the trial court denied Deal’s motion. The trial court 

agreed with the Commonwealth that because Deal was charged with murder, 

no one would be surprised that he was in jail. “[T]hat’s just routinely done,” the 

trial court stated. “[A]lmost everybody’s in custody, eventually, especially after 

a murder investigation.” 

The Commonwealth displayed the video for the jury in its entirety during 

its case-in-chief, during Sergeant Wilder’s testimony. Deal’s counsel renewed 

his objection right before the Commonwealth played the video. In denying 

Deal’s objection to the video display, the trial court granted Deal’s counsel a 

standing objection to the playing of the video. 

At trial, the Commonwealth offered evidence to prove that on the night 

Otis was killed, Deal conspired with his brother to confront Otis at the 

nightclub to exact revenge for the earlier beating. The Commonwealth asserted

that Deal’s brother shot and killed Otis using a gun supplied by Deal. At the 
4

close of evidence, the trial court instructed the jury on murder, second-degree 

manslaughter, and reckless homicide. The jury found Deal guilty of seconddegree manslaughter by complicity and recommended a penalty of ten years’ 

imprisonment. The trial court accepted the jury’s recommended penalty and 

entered final judgment accordingly.

On appeal to the Court of Appeals, Deal argued that the video 

presentation compromised his constitutional right to a fair trial and the 

presumption of innocence. He also asserted that the trial court should have, at 

the very least, acted on its own motion to admonish the jury that Deal’s 

appearance in the video was not evidence of his guilt. The Court of Appeals 

affirmed the judgment on all issues, concluding that any error in admitting the 

video was harmless. 

II. ANALYSIS

Before this Court, Deal argues that the principles established by the 

United States Supreme Court in Estelle v. Williams2 and Deck v. Missouri3 apply 

to his case and compel the conclusion that the trial court abused its discretion 

by overruling his objection to this video display. Similarly, he argues that the 

Court of Appeals erred by holding that even if the video was erroneously 

admitted, it was harmless. The Commonwealth responds by citing this Court’s 

decisions in Shegog v. Commonwealth,

4 Estep v. Commonwealth,5 and Bryan v. 

 

2 425 U.S. 501.

3 544 U.S. 622.

4 142 S.W.3d 101 (Ky. 2004). 

5 663 S.W.2d 213 (Ky. 1983).
5

Commonwealth6 to support its argument that the Court of Appeals correctly 

held that the trial court did not abuse its discretion by allowing the video into

evidence. The Commonwealth also asserts it even if the trial court erred, the 

Court of Appeals correctly deemed it harmless error.

We hold that the trial court abused its discretion by allowing this video. 

Showing it to the jury violated Deal’s due process rights based on the rules 

enunciated by the Supreme Court in Estelle v. Williams7 and Deck v. Missouri8

and by this Court in Shegog,

9 Estep,10 and Bryan v. Commonwealth.11 And we 

are not persuaded that the constitutional error was harmless beyond a 

reasonable doubt. 

A. Standard of Review

We review objections to a trial court’s evidentiary rulings for abuse of 

discretion.12 “The test for abuse of discretion is whether the trial judge's 

decision was arbitrary, unreasonable, unfair, or unsupported by sound legal 

principles.”13 Erroneous evidentiary rulings are ordinarily subject to harmless-

 

6 2015–SC–000467–MR, 2017 WL 1102825 (Ky. Mar. 26, 2017). 

7 425 U.S. 501. 

8 544 U.S. 622. 

9 142 S.W.3d 101. 

10 663 S.W.2d 213. 

11 2017 WL 1102825.

12 Matthews v. Commonwealth, 163 S.W.3d 11, 19 (Ky. 2005). 

13 Commonwealth. v. English, 993 S.W.2d 941, 945 (Ky. 1999) (“The test for 

abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, 

unfair, or unsupported by sound legal principles.”).
6

error review under RCr14 9.24 and therefore may only be used as a basis to 

reverse or vacate a judgment if we cannot “say with fair assurance that the 

judgment was not substantially swayed by the error.”15 But when the 

evidentiary ruling is found to be erroneous because it violated a defendant’s 

constitutional rights, the error is still subject to harmless error review but the 

error may be used as basis to reverse or vacate a judgment if we cannot say the 

error was harmless beyond a reasonable doubt.16

Because Deal claims that the trial court violated his constitutional rights 

to a fair trial and the presumption of innocence, Deal is entitled to a new trial if 

we find that the trial court abused its discretion in admitting the video and the 

error cannot be said to be harmless beyond a reasonable doubt. 

B. The Relevant Law 

That a criminal defendant should not be required to appear before the 

jury in shackles is a time-honored tenet of our jurisprudence.17 Eventually, the 

 

14 Kentucky Rules of Criminal Procedure

15 Ordway v. Commonwealth, 391 S.W.3d 762, 774 (Ky. 2013); RCr 9.24 (“No 

error in either the admission or the exclusion of evidence and no error or defect in any 

ruling or order, or in anything done or omitted by the court or by any of the parties, is 

ground for granting a new trial or for setting aside a verdict or for vacating, modifying 

or otherwise disturbing a judgment or order unless it appears to the court that the 

denial of such relief would be inconsistent with substantial justice.”).

16 Ordway, 391 S.W.3d at 774 (citing Winstead v. Commonwealth, 283 S.W.3d 

678, 689 (Ky. 2009)). 

17 See, e.g., Tunget v. Commonwealth, 198 S.W.2d 785, 786 (Ky. 1946) (“Was it 

reversible error to keep appellant in handcuffs during the trial? As a rule, we would 

condemn such a practice. A court would hardly be justified in permitting this to be 

done in one murder case out of an average hundred coming to trial; Marion v. 

Commonwealth, 108 S.W.2d 721, 723 (Ky. 1937)) (“It is a common-law right of a 

person being tried for the commission of a crime to be free from all manner of shackles 

or bonds, whether of hands or feet, when in court in the presence of the jury, unless 
7

United States Supreme Court recognized that the generally accepted 

prohibition against shackling among the states was grounded in the right to a 

fair trial, a fundamental liberty secured by the Fourteenth Amendment, as a 

practice that “undermines the fairness of the fact-finding process.”18

In Estelle v. Williams, the United States Supreme Court ruled that a trial 

court that compels a criminal defendant to appear before the jury in prison 

clothing threatens the defendant’s fundamental right to a fair trial.19 In an 

effort to protect the presumption of innocence during the course of a criminal 

trial, a basic component of the right to a fair trial guaranteed by the Due 

Process Clause of the Fourteenth Amendment, the Court directed trial courts to 

“be alert to factors that may undermine the fairness of the fact-finding 

process.”20 The Court further directed that, in analyzing the impact of a 

particular trial event on the judgment of the jury, courts are to apply “close 

judicial scrutiny” and “must do the best they can to evaluate the likely effects 

of a particular procedure, based on reason, principle, and common human 

experience.”21 The Court reiterated, however, that not all federal constitutional 

errors require automatic reversal of the challenged conviction.22 For example, 

 

in exceptional cases where there is evident danger of his escape or in order to protect 

others from an attack by the prisoner.”). 

18 Estelle, 425 U.S. at 503. 

19 Id. at 504–05. 

20 Id. at 502 (citing Coffin v. United States, 156 U.S. 432, 453, 15 S.Ct. 394, 

403, 39 L.Ed. 481, 491 (1895)).

21 Id. at 504. 

22 Id. at 507 (explaining that not all constitutional violations require reversal 

because there could be some errors that are so “‘unimportant and insignificant’” 

considering the setting of a particular case) (quoting Chapman v. California, 386 U.S. 
8

the Estelle Court indicated that even in circumstances where a particular 

practice poses an inherent threat to a defendant’s right to a fair trial, the 

practice may still be constitutional where it serves some “essential state 

interest.”23

Following Estelle, the Supreme Court in Holbrook v. Flynn relied on the 

principles in Estelle to determine whether the defendant’s right to a fair trial 

was violated when the trial court, citing security concerns, permitted several 

uniformed officers to be present during trial.

24 The Court explained that certain 

practices require “‘close judicial scrutiny[,]’” because the practice had been 

found “to pose such a threat to the ‘fairness of the factfinding process,’”

25 but

“this close scrutiny of inherently prejudicial practices” is not always fatal:

26

Central to the right to a fair trial, guaranteed by the Sixth and 

Fourteenth Amendments, is the principle that “one accused of a 

crime is entitled to have his guilt or innocence determined solely 

on the basis of the evidence introduced at trial, and not on 

grounds of official suspicion, indictment, continued custody, or 

other circumstances not adduced as proof at trial.”27 This does not 

mean, however, that every practice tending to single out the 

 

18, 21–22, 87 S.Ct. 824, 827, 17 L.Ed.2d 705, 709 (1967)). For example, the Estelle 

Court discussed a case that upheld a conviction where the defendant was tried in jail 

clothes for crimes he committed while in prison because it found that “‘no prejudice 

can result from seeing that which is already known.’” Id. (quoting United States ex rel. 

Stahl v. Henderson, 472 F.2d 556 (5th Cir. 1973)).

23 Id. at 505. 

24 475 U.S 560, 562–67, 106 S.Ct. 1340, 1342–45, 89 L.Ed.2d 525 (1986).

25 Id. at 568 (quoting Estelle, 425 U.S. at 503–505). 

26 Id. (discussing Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 

353 (1970), wherein “the Court emphasized that a defendant may be prejudiced 

if he appears before the jury bound and gagged[,]” but nonetheless held that 

the practice may be reasonable in certain situations)). 

27 Id. at 567 (quoting Taylor v. Kentucky, 436 U.S. 478, 485, 98 S.Ct. 1930, 

1934, 56 L.Ed.2d 468 (1978)). 
9

accused from everyone else in the courtroom must be struck down. 

. . . When defense counsel vigorously represents his client's 

interests and the trial judge assiduously works to impress jurors 

with the need to presume the defendant's innocence, we have 

trusted that a fair result can be obtained.

28

The Court ultimately ruled that having uniformed officers present during 

trial does not always pose a threat to the fairness of the factfinding process

because, unlike in cases where a defendant is shackled while appearing before 

the jury, there are a variety of ways in which officers can be deployed that do 

not prejudice the defendant, and a jury could draw a wider range of inferences 

from having officers present that do not involve speculations regarding any 

danger posed by the defendant.29 Accordingly, the Court opted to adopt a caseby-case approach where it considers whether the officers present in a specific 

case were so inherently prejudicial that the defendant was denied his 

constitutional rights.

30

Finally, in Deck v. Missouri, the Supreme Court considered whether the 

defendant’s due process rights were violated when the defendant was visibly 

shackled during the penalty phase of a trial.31 The Court explained that the 

rule prohibiting a trial court from shackling a defendant during the guilt phase 

of a jury trial serves to protect three fundamental legal principles:

32 (1) “[t]he 

criminal process presumes that the defendant is innocent until proved 

 

28 Id. 

29 Id. 

30 Id. 

31 Deck, 544 U.S. at 624.

32 Id. at 631–32. 
10

guilty;”

33 (2) the Constitution provides an accused with a right to counsel in 

order to help him secure a meaningful defense;

34 and (3) the trial judge “must 

seek to maintain a judicial process that is a dignified process[,] . . . which 

includes the respectful treatment of defendants [and] reflects the importance of 

the matter at issue[.]”

35

The Court explained that the first principle is similarly undermined by 

the shackling practice during the penalty phase because it still suggests to the 

jury “that court authorities consider the offender a danger to the community,” 

which is “often a statutory aggravator and nearly always a relevant factor” to be 

considered by the jury.36 Even though the presumption no longer applies 

during the penalty phase, the Court explained that this suggestion could still 

influence the jury while it was making the equally important decision between 

life and death by undermining the jury’s ability to weigh accurately all relevant 

considerations.

37 The second principle is diminished by the shackling practice 

during the penalty phase because it equally interferes with the defendant’s 

“ability to communicate’ with his lawyer” and “participate in his own 

 

33 Id. 630 (citing Coffin v. United States, 156 U.S. 432, 453, 15 S.Ct. 394, 39 

L.Ed. 481 (1895)). 

34 Id. 631 (citing CONST. AMEND. XI; Gideon v. Wainwright, 372 U.S. 335, 340–

41, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963)). 

35 Id. (quoting Allen, 397 U.S. at 344, for the proposition that the use of 

shackles at trial “‘affront[s]’” the “‘dignity and decorum of judicial proceedings that the 

judge is seeking to uphold[]’”). 

36Id. 632–33.

37 Id. 
11

defense.”38 Finally, the third fundamental principle is undermined by the 

shackling practice in the penalty phase because it “‘affront[s] . . . [the] dignity 

and decorum of judicial proceedings that the judge is seeking to uphold.’”

39

Based on these findings, the Deck Court ruled that “the Fifth and 

Fourteenth Amendments prohibit the use of visible physical restraints [during 

either the guilt or penalty phase] visible to the jury absent a trial court 

determination, in the exercise of its discretion, that they are justified by a state 

interest specific to a particular trial.”

40 Furthermore, the court reaffirmed that 

where such violation is found, the defendant is entitled a reversal unless the 

state satisfies its burden to prove “beyond a reasonable doubt” that the 

erroneous shackling did not influence the verdict.41 The Court reversed Deck’s 

sentence, holding that the trial court abused its discretion because it failed to 

indicate any “special circumstances” were present that suggested a need to 

shackle Deck during the sentencing phase, and to explain why it chose not to 

shackle Deck in a way that the jury could not see.42

In line with its own precedent, Kentucky formally adopted and 

implemented the fundamental principles established in Estelle, Holbrook and 

 

38 Id. at 631–32 (citing Allen, 397 U.S. at 344). 

39 Id. (quoting Allen, 397 U.S. at 344). 

40 Id. at 629–30. The Deck Court explained that its prior decisions in Estelle and 

Allen “gave voice to a principle deeply embedded in the law” that it is inherently 

prejudicial to compel a defendant during the guilt phase of his trial to appear before 

the jury wearing shackles. 544 U.S. at 629.

41 Id. at 635 (internal quotation marks and citations omitted). 

42 Id. at 634–35 
12

Deck. RCr 8.28(5) codifies the rules announced in those cases, providing that 

“[d]uring his or her appearance in court before a jury the defendant shall not 

be required to wear the distinctive clothing of a prisoner. Except for good cause 

shown the judge shall not permit the defendant to be seen by the jury in 

shackles or other devices for physical restraint.” This Court has also applied 

these principles in several cases.43

In Estep v. Commonwealth, this Court rejected the defendant’s challenge 

to the trial court’s decision to admit a photograph that showed the defendant

wearing handcuffs at the time of his arrest.44 Because Estep came before this 

Court in 1983, the Court did not have the benefit of the Supreme Court’s 1986 

and 2005 decisions in Holbrook and Deck to aid in deciding this case. Instead, 

the Estep court was guided only by the Supreme Court’s directives in Estelle 

 

43 This Court in Scrivener v. Commonwealth applied the rule articulated in 

Estelle to hold that the defendant’s conviction must be reversed, despite 

“overwhelming evidence of appellant's guilt,” because the trial court failed to grant the 

defendant’s motion for a continuance so that he could be tried in street clothing rather 

than prison clothing. 539 S.W.2d 291, 292 (Ky. 1976). In Commonwealth v. Conley, 

this court also emphasized the responsibility of the trial court in these cases to not 

restrain the defendant by handcuffs or shackles unless and until it determines that 

restraint of the defendant is necessary to serve the state’s essential interests in 

preventing the defendant’s escape and protecting the safety of those in the courtroom. 

959 S.W.2d 77–78. The Conley court held that the trial court did not abuse its 

discretion in ruling that the defendant be kept in shackles during trial because the 

defendant had a demonstrated history of fleeing state custody, the trial court only so 

ruled after considering relevant case law and available alternatives for courtroom 

security, and the trial court examined and issued several admonition to prospective 

jurors regarding the presumption of innocence and its relationship to the shackles 

placed on the defendant. Id. at 78–79. Furthermore, in Stacy v. Commonwealth, this 

Court affirmed a defendant’s conviction even though the trial court engaged in an 

“intrinsically prejudicial” practice by requiring the defendant’s witnesses to testify 

before the jury while handcuffed and dressed in prison clothing. 396 S.W.3d 787, 800–

03 (Ky. 2013). 

44 663 S.W.2d at 216. 
13

that courts must “be alert to factors that may undermine the fairness of the 

fact-finding process,”

45 and must draw on their own reason, principle, and 

common human experience” to determine the “likely effects of a particular 

procedure.”46

In Estep, the Court did not provide a detailed discussion of defendant’s 

challenge to the trial court’s decision, nor did it discuss or cite to the Supreme 

Court’s decision in Estelle in considering the challenged practice. But the Court 

clearly followed the holding in Estelle when it explained that it could not find 

that the trial court’s decision prejudiced Estep because “[t]he trial court noted 

that the pictures were being offered for the purpose of showing how Estep 

looked the night of his arrest[,] . . . that testimony had been previously given 

that Estep was handcuffed as he was arrested, [and the trial court] 

admonished the jury that the handcuffs had no significance . . . .”47

Similarly, in Shegog v. Commonwealth, this Court held that the 

defendant was not entitled to reversal of his conviction based on the allegation 

that several potential jurors watched as he was transported from the jail to the 

courthouse in handcuffs.48 We reaffirmed that “the inadvertent viewing of the 

 

45 425 U.S. at 502. 

46 Id. at 504. 

47 663 S.W.2d at 216. The Court did not, however, follow the Supreme Court’s 

lead in Estelle by considering, for example, the approaches taken by other courts that 

had considered the constitutionality of the practice that was challenged in Estep, or 

whether the challenged practice usually operated only against those who cannot afford 

to make bail to be released pending trial. See Estelle, 425 U.S. at 503–06. 

48 142 S.W.3d at 108. 
14

defendant in handcuffs for the sole purpose of being taken to or from the 

courtroom is not automatically reversible error.”

49

Like the Estep court, the Shegog court did not provide a detailed 

discussion of the applicable principles under Estelle, Holbrook, and Deck. It is 

clear, however, that the court did engage in the required analysis before 

concluding that Shegog was not entitled to a reversal of his conviction. The

Shegog court noted that the trial court fulfilled its responsibility to consider 

whether the practice was inherently prejudicial when it indicated that “the 

inadvertent viewing of the defendant in handcuffs” may constitute an 

“inherently prejudicial” trial error in some circumstances, but that it could not 

find that the inadvertent viewing in this case prejudiced Shegog since defense 

counsel did not question the potential jurors about it in voir dire.

50 In support 

of this finding, this Court also observed that when the trial court denied the 

request for a continuance it relied on the sentiments expressed in Davis v. 

Commonwealth that “‘it would be impossible as a practical matter to conduct a 

trial without the jury seeing some sign that the defendant [is] not entirely free 

to come and go as [he] please[s].’”51

 

49 Id. at 108–09 (citing Moss v. Commonwealth, 949 S.W.2d 579, 582–83 (Ky. 

1997)).

50 Id. at 109. 

51 Id. (quoting Davis v. Commonwealth, 899 S.W.2d 487, 491 (Ky. 1995), 

overruled on other grounds in Merriweather v. Commonwealth, 99 S.W.3d 448 (Ky. 

2003)). 
15

Finally, in Bryan v. Commonwealth, an unpublished opinion from 2017, 

we rejected the defendant’s challenge to the trial court’s decision to admit a

video of the defendant’s police interview, which depicted Bryan wearing a 

prison jumpsuit and handcuffs.

52 Like in Estep, the Bryan court did not engage 

in the type of analysis that was seen in Holbrook and Deck. Instead, in Bryan

we simply stated, citing only to our decision in Estep, that we could not find 

that the trial court abused its discretion in admitting the video because “[w]e 

have previously affirmed convictions where the jury witnessed the defendant in 

either shackles or handcuffs[, and] [t]he error, if any, was harmless.”53

Unlike in Shegog and Estep, it is unclear whether the Court in Bryan 

relied on the directives provided by the Supreme Court to hold that the trial 

court did not err in admitting the video of the defendant’s police interview and 

any error that did occur was harmless. But there is also no indication in the 

opinion that the defendant objected at trial to allowing the jury to view the 

video of his interview with police. As such, the Bryan court did not err in 

summarily concluding that trial court did not abuse its discretion in admitting 

the video based on this Court’s decision in Estep. 

C. The Applicable Standard

It is fair to say that the cases discussed above establish that trial courts 

must conduct a certain analysis in cases where a defendant challenges a trial 

event claiming the event undermines the jury’s ability to decide the case fairly. 

 

52 2017 WL 1102825, at *6. 

53 Id. 
16

But it is also fair to say that this Court has never articulated the required 

analysis since the Supreme Court decided Estelle, Holbrook, and Deck. We take 

the opportunity now. 

First, when a defendant objects to a specific trial event, the trial court, in

the exercise of its discretion, has a responsibility under the Fourteenth 

Amendment to consider whether the practice is “inherently prejudicial.”54 As 

the Court explained in Holbrook, a practice is generally found to be “inherently 

prejudicial” when it threatens the fairness of the factfinding process by 

undermining the defendant’s right “‘to have his guilt or innocence determined 

solely on the basis of the evidence introduced at trial, and not on grounds of 

official suspicion, indictment, continued custody, or other circumstances not 

adduced as proof at trial.’”

55

In carrying out this responsibility, the trial court must engage in a 

thorough analysis and “closely” consider any factors relevant in the specific 

 

54 See Deck, 544 U.S. at 630 (discussing the Court’s prior decision to determine 

whether shackling the defendant during the penalty phase of the trial posed a similar 

risk to the defendant’s constitutional right as the practice does when employed during 

the guilt phase of the trial); Holbrook, 475 U.S. at 567 (holding that the uniformed 

officers present during the defendant’s trial were not “inherently prejudicial” based on 

the finding that the officers in the case did not pose the same risk to the defendant’s 

constitutional rights as routinely shackling the defendant when he appears before the 

jury); Estelle , 425 U.S. at 504 (justifying its holding that compelling a criminal 

defendant to appear before the jury in prison clothing by citing to several other courts’ 

decisions that have prohibited the practice based on the threat the practice poses to 

the presumption of innocence entitled to all criminal defendants); Stacy, 396 S.W.3d 

at 800–01 (stating that to determine whether the defendant’s fair trial rights were 

violated by the trial court allowing the defendant’s incarcerated witnesses to testify 

while wearing shackles and prison attire, the Court must determine first whether the 

practice is “intrinsically prejudicial . . . , and if so whether sufficient state interests 

exist to justify its existence[]”). 

55 Holbrook, 475 U.S. at 567 (quoting Taylor, 436 U.S. at 485). 
17

case,

56 including: the likelihood that the challenged event could be interpreted 

by the jury as indicating that the defendant has already been adjudged to be 

particularly dangerous or culpable;

57 the reasoning behind other courts’ 

decisions when faced with similar cases;

58 and the likelihood that the event

would normally operate to the disadvantage only to those defendants who are 

unable to post bond to be released pending trial.59 If the trial court finds that 

the challenged event is “inherently prejudicial,” or prejudicial based on the 

circumstances of a particular case, the trial court may only exercise its 

 

56 See Estelle, 425 U.S. at 502–04 (directing trial courts to “be alert to factors 

that may undermine the fairness of the fact-finding process[,]” and explaining that 

courts are to apply “close judicial scrutiny” when analyzing the impact of a particular 

trial event on the judgment of the jury and “do the best they can to evaluate the likely 

effects of a particular procedure, based on reason, principle, and common human 

experience”)(citing Coffin, 156 U.S. at 453).

57 See Holbrook, 475 U.S. at 569 (finding that the jury could have drawn a wider 

range of inferences from having the uniformed officers present during Holbrook’s trial 

that many of which do not all involve speculations regarding any danger posed by 

Holbrook). 

58 See Deck, 544 U.S. at 630 (explaining that the Court’s prior decisions in 

Estelle and Holbrook indicated that the primary motivation behind the guilt-phase 

constitutional rule is to protect “three fundamental legal principles” that are 

undermined or threatened by practices such as shackling the defendant when he 

appears before the jury); Holbrook, 475 U.S. at 567 (discussing the Court’s prior 

decisions in Estelle, 425 U.S. 501, and Allen, 397 U.S. 337, to illustrate how the 

practice challenged in this case differed from the practices deemed to be 

constitutionally prohibited absent a showing that the practice is necessary to serve an 

essential state interest); Estelle , 425 U.S. at 504 (discussing several lower federal 

court cases already confronted the practice at issue in this case and prohibited or 

criticized it). 

59 See Holbrook, 475 U.S. at 567; Estelle, 425 U.S. at 504–05. Recall that the 

Estelle Court established that “[t]o impose [a] condition on one category of defendants, 

over objection, would be repugnant to the concept of equal justice embodied in the 

Fourteenth Amendment.” Estelle, 425 U.S. at 504–05. 
18

discretion to allow the proposed event if it finds that the event is nonetheless 

justified by some identifiable and essential state interest.60

In determining whether the challenged event is justified by an essential 

state interest, the trial court is directed to engage in a thorough analysis of any 

factors that are relevant in the particular case. For example, the Supreme 

Court and this Court have considered factors such as: (1) the merits of the 

asserted state interest;

61 (2) the potential threat posed by the challenged event

to the defendant’s constitutional rights;

62 and (3) the availability of alternatives

 

60 See Deck, 544 U.S. at 634–35 (holding that the trial court erred in shackling 

the defendant during the penalty phase of the trial because the trial court failed to 

indicate that it considered any “special circumstances” that suggested a need to 

shackle Deck); Holbrook, 475 U.S. at 571–72 (explaining that even if the court’s 

decision allow the four uniformed police officers to be present during Holbrook’s trial 

did prejudice the defendant, “the State's need to maintain custody over defendants 

who had been denied bail after an individualized determination that their presence at 

trial could not otherwise be ensured” justified the trial court’s decision); Estelle , 425 

U.S. at 505 (finding that no state interest was served by requiring a defendant to 

appear at trial in jail clothing); 

61 See, e.g., Holbrook, 475 U.S. at 571–72 (explaining that even if the court’s 

decision to allow the four uniformed police officers to be present during Holbrook’s 

trial did prejudice the defendant, “the State's need to maintain custody over 

defendants who had been denied bail after an individualized determination that their 

presence at trial could not otherwise be ensured” justified the trial court’s decision); 

Conley, 959 S.W.2d at 78–79 (holding that the trial court did not abuse its discretion 

in ruling that the defendant be kept in shackles during trial given that the defendant 

had a demonstrated history of fleeing state custody). 

62 See, e.g., Holbrook, 475 U.S. at 567 (ruling that having uniformed officers 

present during trial does not always pose a threat to the fairness of the factfinding 

process because, unlike in cases where a defendant is shackled while appearing before 

the jury, there are a variety of ways in which officers can be deployed by trial courts 

that do not prejudice the defendant and a jury could draw a wider range of inferences 

from having officers present that do not all involve speculations regarding any danger 

posed by the defendant); Estelle, 425 U.S. at 502 (explaining that the presumption of 

innocence is a basic component of the right to a fair trial guaranteed by the Due 

Process Clause of the Fourteenth Amendment, and to protect this fundamental right, 

the Court directed trial courts to “be alert to factors that may undermine the fairness 

of the fact-finding process[]”) (internal citations omitted). 
19

that could minimize the risk posed to the defendant’s rights while still acting to 

serve the asserted state interest.63 As to the last factor, this Court has made 

clear that a trial court will usually be able to minimize any risk posed to the 

defendant’s right by admonishing the jury that the trial practice is not to be 

considered in determining guilt.64

Finally, in cases where an “inherently prejudicial” trial event that does 

not serve an essential state interest is implemented, prejudice is presumed on 

appellate review of the trial court’s decision,65 and the defendant is entitled to 

reversal of his conviction unless the defendant did not challenge the event 

 

63 See, e.g., Deck, 544 U.S. at 634–35 (holding that the trial court erred in 

shackling the defendant during the penalty phase of the trial in part because the trial 

court failed to explain why it chose not to shackle Deck in a way that the jury could 

not see); Conley, 959 S.W.2d at 78–79 (holding that the trial court did not abuse its 

discretion in ruling that the defendant be kept in shackles during trial given that the 

defendant had a demonstrated history of fleeing state custody, the trial court only so 

ruled after considering relevant case law and available alternatives for courtroom 

security, and the trial court examined and issued several admonitions to prospective 

jurors regarding the presumption of innocence and its relationship to the shackles 

placed on the defendant). 

64 See, e.g., Estep v. Commonwealth, 663 S.W.2d 213, 215 (Ky. 1983) 

(explaining that it could not find that the trial court’s decision to admit a photograph 

even though it depicted the defendant, at the time of his arrest, wearing handcuffs 

prejudiced Estep because, among other things, the trial court “admonished the jury 

that the handcuffs had no significance” in determining Estep’s guilt). 

65 See, e.g., Deck, 544 U.S. at 635 (concluding that where a court, without 

adequate justification, orders the defendant to wear shackles that will be seen by the 

jury, the defendant need not demonstrate actual prejudice to make out a due process 

violation[,]” as it becomes the burden of the State in those circumstances to prove 

“beyond a reasonable doubt” that the erroneous shackling of the defendant did not 

impact the ultimate verdict). 
20

before the trial court,66 or unless the state can affirmatively show beyond a 

reasonable doubt that the event did not prejudice the defendant.67 

D. The Standard as Applied in Similar Cases 

A standard like the one articulated above has been applied in cases 

where a jury viewed a criminal defendant in handcuffs or jail garb in-person or 

in a photograph. While neither this Court nor the United States Supreme Court 

has had the opportunity to analyze a videotaped presentation like the one in 

the present case,68 other state appellate courts have considered cases that 

presented similar facts. 

In State v. Taylor, for example, the Tennessee Supreme Court considered 

whether the trial court erred in allowing the jury to view a videotape in which 

the defendant appeared in custody and dressed in jail attire.69 The challenged 

video in Taylor was recorded while the State was working with a jail informant 

 

66 See, e.g., Estelle, 425 U.S. at 510–13 (concluding that Williams was not 

entitled to reversal of his conviction because it was undisputed that Williams did not 

object before the trial court to being tried in jail clothing, the Court could not conclude 

that Williams was compelled to stand trial in jail clothing in violation of the Fourteenth 

Amendment). 

67 See, e.g., Deck, 544 U.S. at 635 (concluding that where a court, without 

adequate justification, orders the defendant to wear visible shackles before the jury, 

prejudice is presumed, and reversal is required unless the State proves “beyond a 

reasonable doubt” that the erroneous shackling of the defendant did not impact the 

ultimate verdict). 

68 This Court in Bryant was presented with similar facts, and it indicated that it 

would be reluctant to find any error in admitting the video based on this Court’s 

decision in Estep. 2015–SC–000467–MR, at *6. The case at bar is different because 

Deal did preserve his objection to admitting the challenged video depicting him in jail 

garb and shackles.

69 240 S.W.3d 789 (Tn. 2007).
21

who claimed that the defendant had previously confessed to the crimes.70 The 

Tennessee Supreme Court held that the trial court did not err in admitting the 

video because it did not result in a violation of the defendant’s constitutional 

rights.71

In its discussion of the defendant’s claim that the video violated his 

constitutional rights, the Tennessee Supreme Court explained that the facts 

relied on by the Supreme Court in Estelle are distinguishable from Taylor’s 

case because: the defendant was not tried while dressed in jail attire; the jury 

only saw a brief videotape of defendant wearing jail attire; the video was not the 

cause of the potential prejudice arising from discovering that the defendant 

was jailed because the jury already knew before viewing the videotape that the 

defendant was in jail based on the informant’s testimony; and because the trial 

took place over 3 days, and the video was only seven-minutes long.

72 While it 

“caution[ed] trial courts that unnecessary displays of a criminal defendant 

bearing the badges of custody should be avoided,” the court ultimately held 

 

70 Id. at 793. 

71 Id. at 794–97. The defendant in Taylor also argued that the video violated his 

constitutional rights because the State had an audio version of his conversation with 

the informant, but the court declined to consider this factor in its analysis because it 

agreed with the State’s argument that the defendant had waived this argument by 

failing to include the audiotape in the appellate record. Id. at 795 (citing State v. 

Ballard, 855 S.W.2d 557, 560–61 (Tenn. 1993)).

72 Id. at 795–96. The Tennessee Supreme Court explained that the Supreme 

Court in Estelle “recognized that ‘the constant reminder of the accused's condition 

implicit in such distinctive, identifiable attire may affect a juror's judgment. The 

defendant's clothing is so likely to be a continuing influence throughout the trial that . 

. . an unacceptable risk is presented of impermissible factors coming into play.’” Id. 

(quoting Estelle, 425 U.S. at 504–05, 512). 
22

that “[u]nder these circumstances, . . . the brief videotape . . . did not serve as 

a ‘constant reminder’ to the jury that the Defendant had been previously jailed 

and it did not corrupt the presumption of innocence on which the jury was 

properly instructed.”73

The Tennessee Supreme Court in Taylor also explained that its holding 

was supported by several similar cases that were decided by courts in other 

states.74 In sum, like the Supreme Court in Holbrook, the Tennessee Supreme 

Court, as well as the state court decisions that it cited, concluded in the first 

instance that admitting video evidence depicting a defendant in jail custody is 

not “inherently prejudicial” under all circumstances. And we do not disagree

with that point. 

Common sense suggests that the impact of allowing a brief videotaped 

presentation to the jury depicting the defendant in jail attire or shackles is not 

as damaging as requiring a defendant to appear that way in person before the 

jury. But we remain convinced that videos of the defendant “bearing badges of 

 

73 Id. at 796–97. 

74 Id. at 797 (discussing State v. Schaller, 199 Wis.2d 23, 544 N.W.2d 247 

(App.1995)), State v. Atwood, 171 Ariz. 576, 832 P.2d 593, 645 (1992), overruled on 

other grounds by State v. Nordstrom, 200 Ariz. 229, 25 P.3d 717, 729 (2001), and 

Anderson v. State, 574 So.2d 87 (Fla. 1991)). For example, the Tennessee Supreme 

Court explained that the Supreme Court of Florida “rejected [a] defendant's contention 

that he had been denied a fair trial because the jury was shown a one and one-half 

minute long videotaped news report that briefly depicted the defendant in jail clothes.” 

Id. (citing Anderson, 574 So.2d at 93–94 (Fla. 1991)). The Supreme Court of Florida 

concluded that “‘[u]nder the circumstances, there was no “constant reminder of the 

accused's condition” to support the conclusion that [the defendant] was denied a fair 

trial.’” Id. (quoting Anderson, 574 So.2d at 93-94 (quoting Estelle, 425 U.S. at 504, 96 

S.Ct. 1691))).
23

custody” pose a threat to the defendant’s right to a fair trial because it tends to 

suggest to the jury that some official determination has already been made that 

the defendant needs to be restrained and separated from society. This is 

especially true when, as in Deal’s case, the jury was able to see and hear 

testimony to the effect that the jail interview was recorded months after the 

defendant was arrested on the underlying charges. 

E. The Standard as Applied to Deal’s Case 

Applying to Deal’s case the standards discussed above, we conclude that 

Deal is entitled to reversal of his conviction because the video was prejudicial 

based on specific circumstances of Deal’s case, the trial court abused its 

discretion in admitting the video without engaging in the required analysis, and 

the Commonwealth failed to prove beyond a reasonable doubt that this error 

did not influence the jury’s verdict.

With respect to the first step of the analysis, the trial court here failed to

consider on the record whether playing this video was inherently prejudicial. In 

a conclusory way, it dismissed Deal’s requests to require the Commonwealth to 

present the audio version of his interview, or, at a minimum, offer some 

explanation for using the video instead of the audio. The trial court stated that 

it was expected—presumably saying unexpected by the average juror—that

Deal would be in custody because he was accused of murder. The trial court’s 

statement, “that’s just routinely done, almost everybody’s in custody, 

eventually, especially after a murder investigation,” suggests that the trial court 

was echoing words from Davis that “it would be impossible as a practical 
24

matter to conduct a trial without the jury seeing some sign that the defendant 

[is] not entirely free to come and go as [he] please[s].”75 But the facts of the 

present case are that the challenged video was a production by the principal 

investigating officer in testimony during the Commonwealth’s case-in-chief. The

present facts are fundamentally different from Davis, a case in which jurors’ 

inadvertently viewed the defendant in handcuffs as he entered the courtroom 

at the commencement of trial.76 

As indicated above, we believe that Deal’s video, as it was presented to 

the jury below, was prejudicial. Unlike the defendant in Taylor, Deal was 

depicted in the video wearing both jail clothing and shackles,

77 and the video 

was 35 minutes, not merely 7. Also, the video of Deal was recorded two months

after Deal was arrested on the present charge, and this fact was apparent to 

the jury because the date stamp appears prominently at the bottom of the 

video. 

With respect to the second step of the analysis, despite the 

circumstances present in Deal’s case, the trial court further failed to consider 

whether Deal’s video would nonetheless be prejudicial. There certainly could 

have been ways to minimize this risk, such as admitting the audio version of 

 

75 Davis, 899 S.W.2d at 491. 

76 Id. at 490.

77 Recall that the Supreme Court in Deck explained that its prior decisions in 

Estelle and Illinois v. Allen, 397 U.S. 337, 343–44, 90 S.Ct. 1057, 25 L.Ed.2d 353 

(1970) “gave voice to a principle deeply rooted in the law” that it is inherently 

prejudicial to compel a defendant during the guilt phase of his trial to appear before 

the jury wearing shackles.” 544 U.S. at 629.
25

the same interview or admonishing the jury that Deal’s appearance in the video 

should not be considered in determining guilt.78 But there appears no 

indication of the trial court’s consideration of such alternatives or safeguards. 

And even if it had, the trial court should have then required the 

Commonwealth to explain how the video serves an essential state interest, 

which could have been accomplished by simply requiring the Commonwealth 

to explain how the audio version would not effectively present the intended 

evidence and why the evidence in video format was crucial for proving the 

Commonwealth’s case. 

Finally, as we consider the arguments before us, we conclude that the 

Commonwealth failed to argue the existence of proof beyond a reasonable 

doubt that the trial court’s decision to allow the video did not prejudice Deal. 

The Commonwealth argues that any error committed by the trial court in 

admitting the video or failing to give an admonition was harmless because 

 

78 See, e.g., Estep, 663 S.W.2d at 215 (explaining that it could not find that the 

trial court’s decision to admit a photograph even though it depicted the defendant, at 

the time of his arrest, wearing handcuffs prejudiced Estep because, among other 

things, the trial court “admonished the jury that the handcuffs had no significance” in 

determining Estep’s guilt). We agree with the Commonwealth and the Court of Appeals 

in this case that this Court has generally held that “a defendant who wants the court 

to admonish the jury must ask for such relief; otherwise, his failure to request it will 

be treated as a waiver or as an element of trial strategy.” Hall v. Commonwealth., 817 

S.W.2d 228, 229 (Ky. 1991), overruled on other grounds in Commonwealth. v. Ramsey, 

920 S.W.2d 526 (Ky. 1996). However, we do not agree with the insinuation that by 

failing to request a jury admonition regarding what purpose the video is to serve in 

determining guilt Deal waived any argument relating to the trial court’s failure to issue 

such an admonition. Deal’s failure to request an appropriate admonition when it 

objected to admitting the video of his police interview has no bearing on the trial 

court’s initial failure to properly analyze whether Deal’s constitutional rights were 

threatened by admitting the video. 
26

there is “no substantial possibility that the result would have been different if 

the Commonwealth had played the audio recording of the interview.” 

In support of this argument, the Commonwealth makes the following 

assertions: (1) the investigating detective had already testified about Deal’s 

arrest, so the jury already knew that Deal had been taken into custody; (2) the 

video of Deal’s police interview was consistent with Deal’s defense; (3) and the 

video was only a “short portion of a multi-day trial” in which Deal was 

personally present in street clothes and maintaining a tidy appearance. In 

response, Deal argues that the Commonwealth could not prove that the 

challenged video did not impact the verdict because the evidence against Deal 

was not overwhelming. 

While we concede that the assertions made by the Commonwealth in 

support of its argument that the video did not prejudice Deal are relevant,79 the

Commonwealth has not explained how these assertions prove beyond a 

reasonable doubt that the video did not prejudice Deal by influencing the jury’s 

verdict. Furthermore, the Commonwealth fails to discuss any relevant case 

 

79 The Tennessee Supreme Court made similar assertions in support of its 

holding in Taylor. 240 S.W.3d at 795–97 (explaining that, because the defendant was 

not tried while dressed in jail attire; the jury only saw a brief videotape of defendant 

wearing jail attire; the video was not the cause of the potential prejudice arising from 

discovering that the defendant was jailed because the jury already knew before viewing 

the videotape that the defendant was in jail based on the informant’s testimony; and 

because the trial took place over 3 days, and the video was only seven-minutes long, 

the facts relied on by the Supreme Court in Estelle are distinguishable from Taylor’s 

case, and holding that “[u]nder these circumstances, . . . the brief videotape . . . did 

not serve as a ‘constant reminder’ to the jury that the Defendant had been previously 

jailed and it did not corrupt the presumption of innocence on which the jury was 

properly instructed”). 
27

that supports its assertion that Deal was not prejudiced. Accordingly, we 

cannot conclude that the Commonwealth satisfied its burden of demonstrating 

beyond a reasonable doubt that the practice did not impact the verdict. 

In sum, we conclude that while not “inherently prejudicial,” the video 

prejudiced Deal and the trial court failed to take any of the required steps to 

determine if the prejudicial nature of the video was justified by an essential 

state interest, or whether the risk posed to Deal’s constitutional rights could 

otherwise be minimized by some available alternative. 

On remand, if the Commonwealth again moves to allow the jury to view 

the videotape of Deal’s interview in the same format, the trial court should 

require the Commonwealth to prove that the video is necessary to serve an 

essential state interest. If, in the exercise of its discretion, the trial court 

believes the video is necessary to serve the asserted state interest and that 

interest could not be served by any available alternatives, it is within the trial 

court’s discretion to admit the video. But the trial court must still consider 

whether any additional steps should be taken to minimize the risk posed to 

Deal’s constitutional rights, which could include issuing an appropriate 

admonition to the jury. 

III. CONCLUSION

The judgment is reversed, and the case is remanded to the trial court for 

further proceedings consistent with this opinion.

All sitting. All concur.
28

COUNSEL FOR APPELLANT:

Euva D. May

Leo Gerard Smith

Department of Public Advocacy

COUNSEL FOR APPELLEE: 

Daniel Jay Cameron

Attorney General of Kentucky

Emily Bedelle Lucas

Office of the Attorney General