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Tattoos: When should you clean up your witness?

Monday, December 6, 2010
posted by Douglas Keene

I was recently interviewed by a reporter for the New York Times.  My NYT comments are a portion of what we teach lawyers and witnesses about ‘Visual Identity’. I was asked a question about the trial in Florida where the court is paying for the defendant’s “prejudicial tattoos” to be professionally covered with makeup. According to the Reuters story:

“The judge ordered the state to pay for a cosmetologist to apply makeup before trial each day to cover up the tattoos on John Ditullio’s face and neck, which include a swastika, barbed wire and an obscene word.”

And it got me thinking about something I call “visual identity”. How we look sends a message to others about how we see ourselves and how we want them to see us in return. As I considered this, I had a number of thoughts about why we would (or wouldn’t) consider covering tattoos on our clients.

The goal of the attorney presenting a witness is to help the jury see the witness as “kind of like me” or “someone I can trust”.  Appearance is a part of that.  If someone looks scary or unfamiliar, they are judged as less trustworthy and less believable.  The goal is to help them be more ‘relatable’, regardless of the facts.

As a jury consultant I counsel witnesses on their ‘visual identity’.  That is, what is a jury going to think of them merely by seeing them across the room.  Attraction?  Fear?  Curiosity? Clothes, posture, grooming, and facial expression can strongly affect juror expectation before the witness is even sworn in.

Ditullio’s tattoos were selected and purchased with the intent to frighten, alienate, and offend mainstream America.  Charlie Manson’s forehead swastika is another example. They might also—and fairly—be seen as anti-Semitic or racist.  The very objective he embraced when he got them is what the court is trying to protect him from.

The law requires that the verdict be based on facts related to the evidence of the crime.  Offensive tattoos are almost assuredly going to influence juror perception, and raise the probability that a conviction could be overturned.

It is curious that the court is obscuring the tattoos that he acquired after he was arrested– essentially, after he was aware that a jury would be passing judgment on him.  An argument could be made that the post-arrest tattoos were intended as a public statement, directed toward jurors as well as others.  There is no doubt that they would offend most people, but that appears to be what he was seeking.   In a peculiarly mixed presentation, Ditullio submitted to neat dress, a trim haircut, and the addition of new, offensive tattoos.

Jury consultants are aware of the rules of evidence, but our focus is on the way the case is going to be perceived or distracted by juror attitudes and beliefs.  We routinely advise witnesses to present an appearance to the jury that is neat and orderly, consistent with their age, occupation, and economic situation, and above all, do what is possible to avoid alienating the jury. Communicating a favorable impression is difficult enough without vulgar and offensive tattoos.

The concerns about appearance often run in a very different direction.  In his case, his vulgar tattoos and disheveled appearance is the concern.  But in many others, their extreme affluence is a concern.

I counseled defendants during Enron trials to remove $10,000 watches.

Usually, women should avoid very high heels, flashy jewelry, and conspicuously expensive accessories. For example, Martha Stewart was criticized by some for toting an Hermes Birkin purse into court.  Flaunting accessories that cost more than the average value of the jurors’ cars are very bad judgment.  The best that can be said is that the wearer is really out of touch with regular people.

Finally, one of our more affluent and successful (attorney) clients always wears the same khaki suits to court. It’s his trial suit. It says he is a working man. Like the jurors.

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