This week several colleagues and students have forwarded to me this story from the NY Times describing a criminal defendant in Florida whose attorney successfully petitioned the court to pay for a cosmetologist to help him cover up his swastika tattoos with makeup before trial each morning.  The basis for the request was the defense's (quite reasonable) concerns that jurors would have a hard time remaining impartial as they sat in judgment of someone adorned by Neo-Nazi symbols.

The case raises a wide range of interesting questions involving the psychology of law, physical appearance, first impressions, and daily interaction–the very issues often at the heart of this blog.  Questions such as...

• Should the court have agreed? While the unusual nature of the request is what has rendered it newsworthy, similar issues arise in a wide range of cases. Defendants often change clothes before entering court in order to prevent them from having to appear in front of the jury in a prison jumpsuit. Similarly, defendants in custody may be unshackled outside of the presence of the jurors so as to avoid undue bias.

The question becomes, though, should such accommodation apply to tattoos?  After all, the defendant in the Florida case presumably chose to decorate himself in Neo-Nazi images.  Should the taxpayers foot the bill to cover up decisions that the defendant made of his own free will?  Moreover, the prosecution alleges that the attacks in question were motivated by hate: one assault victim was attacked allegedly for associating with a Black man; the homicide victim was gay.  Reactions to the case might be different had the defendant gotten the tattoos earlier in life and long since forsworn the ideology associated with them. This wasn't the case here.

• Can the issue be reframed? Many people I've spoken with have suggested, as alluded to above, that since the defendant chose these tattoos, he should be stuck with the repercussions of that decision. But the issue becomes more complex when you consider that the question for the court was not simply whether the defendant should be allowed to cover his tattoos, but rather whether the court would pay for it. Because a tattooed defendant with the money for his own removal/cover-up would be free to do as he wished.

Most people I've talked to have trouble with the idea that the court would pay for a Neo-Nazi charged with hate crimes to cover up swastika tattoos.  But when the same question is reframed, most of the same people agree that a poor defendant charged with capital crimes should be entitled to just as vigorous a defense as a wealthier defendant in the same situation.  Pitched this way, the issue becomes more complicated.

• Couldn't the judge just remind the jurors to stick to the evidence and ignore the defendant's appearance? Sure.  And as the division director for the Florida attorney's office argues in the Times article, "We believe the jurors listen to judges' instructions."

But while I have no doubt that jurors often try to follow the rules they're given, examples to the contrary abound.  For instance, years ago I published a few research studies indicating that evidence still impacts a jury even after it has been ruled inadmissible.  Moreover, judicial instructions to avoid prejudice or partiality have not been sufficient to eliminate other forms of disparity, such as the increased likelihood that a defendant in a capital trial will be sentenced to death when his victim is White as opposed to non-White. 

It remains the case that sometimes jurors decide they'd rather not hew to the letter of the judge's instructions.  And other times, jurors aren't even aware in the first place of the biases that they're supposed to be avoiding.

• If this defendant gets money to change how he looks, what about other defendants similarly disadvantaged by appearance?

No good legal debate is complete without the proverbial slippery slope argument, so where do we go from tattoo guy? Should relatively unattractive defendants be allowed to ask for makeovers? Given stereotypes about overweight individuals and self-control, what about an obese defendant in a negligence case? Clearly, the slope isn't so slippery as to allow a defendant from a traditionally disadvantaged minority group to appear in court in whiteface, but where should the line be drawn?

When symphony orchestras wanted to reduce bias in the hiring of musicians, they had candidates audition behind a screen so that gender was not apparent.  Accordingly, one of my students in class last week asked, why not do the same to mask the demographics and background of a criminal defendant?  Not a proposal that you're likely to see anytime soon in a courtroom near you, but interesting fodder for discussion nonetheless.

So I now turn the question to you, dear readers... Court-sponsored tattoo cover-ups: misguided use of public funds or necessary protection of defendant rights?

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