Illustrative Evidence vs. Testimonial Content:
The Montana Supreme Court’s Clarification on Jury Access to Child-Witness Drawings in State v. Walks (2025 MT 147)

Introduction

State v. Stephen Eric Walks required the Supreme Court of Montana to resolve whether child-generated drawings, admitted to illustrate alleged sexual misconduct, may accompany the jury during deliberations without judicial supervision. The appeal arose after Walks was convicted of felony sexual assault and two counts of sexual intercourse without consent, based chiefly on the testimony and drawings of his six-year-old step-granddaughters, K.P. and K. At trial, six drawings were admitted:

• Forensic Interview Drawings – Exhibits 18, 19, 21, 29 (created during recorded interviews with a counselor).
• Trial Drawings – Exhibits 20 and 24 (created live on the witness stand).

The District Court allowed all six exhibits into the jury room. On appeal, Walks claimed the court abused its discretion by permitting the jury “unrestricted and unsupervised” access, thereby violating Montana’s well-established rule that testimonial evidence cannot be replayed or reread in deliberations absent safeguards.

Summary of the Judgment

Writing for a unanimous Court, Justice Shea affirmed the conviction. The Court drew a sharp line between illustrative, non-testimonial evidence and testimonial material:

• Forensic Interview Drawings – deemed non-testimonial. Their meaning was “not appreciable” without the children’s testimony; therefore, the jury could review them freely.
• Trial Drawings – conceded by the State to be testimonial. Allowing the jury unsupervised access was error, but it was harmless because abundant cumulative evidence proved the same facts.

Accordingly, the Court held: (1) no abuse of discretion occurred with respect to the interview drawings; (2) the error concerning the trial drawings did not warrant reversal.

Analysis

1. Precedents Cited

The opinion synthesises a line of Montana cases governing jury access to exhibits:

• State v. Green (2022) – Silent surveillance footage is non-testimonial; juries may view it without restriction.
• State v. Hoover (2021) – Audio-visual recordings of police interrogations are testimonial; unrestricted jury replay is reversible unless harmless.
• State v. Nordholm (2019) – Body-cam videos containing conversations are testimonial; error not harmless because jury could over-emphasize them.
• State v. Stout (2010) – Expert written reports are non-testimonial when they merely relate to live testimony.
• State v. Bales (1999) – Audio of defendant’s statement is testimonial; improper jury access reversible.
• State v. Hart (2009) & State v. Van Kirk (2001) – Outline Montana’s harmless-error test for unsupervised jury review of testimonial exhibits.

These authorities provide a continuum: silent visual evidence ⇨ illustrative documents ⇨ recorded statements. The Court places child drawings on that spectrum according to their communicative richness.

2. Legal Reasoning

1. Threshold Inquiry – Is the exhibit testimonial?
   Montana precedent bars unrestricted jury access only if an exhibit amounts to “a person’s testimony offered to prove the truth of the matter asserted.” Applying Stout and Black’s Law Dictionary, the Court asked whether the drawings convey intelligible assertions independent of live testimony. The forensic drawings did not; they were cryptic without context. Conversely, the trial drawings directly embodied K.P.’s in-court assertions and thus were testimonial.
2. Risk of Undue Emphasis
   When an exhibit is testimonial, unlimited review risks letting jurors “re-hear” a witness repeatedly, giving that evidence greater weight than live testimony remembered only once. Because the forensic drawings lacked “independent testimonial clarity,” the risk was minimal; for the trial drawings, risk existed but was cured by harmless-error analysis.
3. Harmless-Error Application
   Using the Van Kirk framework, the State bears the burden to show “no reasonable possibility” that the error affected the verdict. The Court compared the limited communicative content of the trial drawings with voluminous corroborative evidence: recorded interviews, K.P.’s live testimony, medical records, and other witnesses. Given this redundancy, the error was deemed harmless.

3. Impact of the Decision

The opinion carves out a clear doctrinal rule for future Montana cases:

Child-witness drawings, and similar illustrative exhibits whose meaning is not self-evident, are non-testimonial and may accompany a jury into deliberations. When such drawings are created live in court and directly memorialize a witness’s assertion, they become testimonial, but erroneous submission will be reversible only if not harmless under Van Kirk.

Practical consequences include:

• Trial Management: Judges must categorize visual exhibits based on their communicative independence before sending them to the jury.
• Prosecution Strategy: Prosecutors can safely rely on illustrative child drawings without fearing automatic reversal for jury review.
• Defense Strategy: Defense counsel must object specifically when drawings are created in court to preserve appellate issues, but should also prepare to demonstrate prejudice for harmless-error analysis.
• Broader Evidentiary Doctrine: The case reinforces that “testimonial” is a functional concept—content and context matter more than medium.

Complex Concepts Simplified

• Testimonial Evidence: Any statement (written, spoken, or recorded) that directly tells the jury “what happened” is testimonial. Think of it as the witness talking again—on paper or video.
• Illustrative (Demonstrative) Evidence: Objects or drawings that help explain testimony but do not speak for themselves. Without narration they are essentially silent pictures.
• Harmless Error: Even if the trial judge makes a mistake, the conviction stands if the appellate court is convinced beyond a reasonable possibility that the mistake did not influence the verdict.
• Undue Emphasis Problem: The jury should rely on its collective memory of live testimony. If it can re-watch a video or re-read a transcript, that evidence may loom larger than everything else.

Conclusion

State v. Walks delivers a nuanced yet practical guide for distinguishing between non-testimonial illustrative evidence and testimonial content in visual exhibits. By deeming forensic-interview drawings non-testimonial while recognizing live courtroom drawings as testimonial—but finding the error harmless—the Montana Supreme Court both safeguards defendants’ rights and acknowledges the evidentiary realities of child-sexual-assault prosecutions. The precedent will influence how trial courts nationwide balance the probative value of child-generated visuals against the risk of undue juror emphasis, underscoring once again that the testimonial inquiry turns on communicative independence, not on the medium in which information is conveyed.