It’s been more than a year since we first wrote about the “nerd defense”. Essentially, this is the practice of sticking eyeglasses on your allegedly dangerous defendant to communicate their innocence to members of the jury. But now, the Washington Post has finally picked up the practice and we thought we’d mention it again.
Here’s how the Post describes the evolving use of the “nerd defense”.
“Attorneys say inmates trade them before hearings, while friends and family sometimes deliver them during jailhouse visits. Some lawyers even supply them themselves.
They often escape notice — as was the case with another murder defendant who wore glasses with thick, black frames during a summer murder trial. Convicted of first-degree murder in August, his glasses never came up in court.
But the eyewear sported during the trial of Carter and his friends, which began its fifth week in D.C. Superior Court on Tuesday, has attracted attention. Court observers say prosecutors seized an opportunity to suggest to jurors that the defendants were dishonest in misrepresenting their appearance.”
Some would say this is simply another example of defendants cleaning up prior to court appearances–they come in dressed in suits and with haircuts–why not eyeglasses? Others say it is going too far–like the furor over the court order to pay for makeup to cover a defendant’s racist face and neck tattoos in Florida.
But there is a flaw in the strategy that is pretty odd to overlook. The entire premise of the ‘nerd defense’ is based on a distortion of the original research (cited below). The research suggests that jurors perceive the glasses-wearer as being smarter and less threatening, but it isn’t likely to have a significant affect on the verdict. When we initially blogged about the study, it was this misunderstanding that we found most interesting.
“Our line of research suggests that the presence of eyeglasses on a defendant may significantly affect verdict outcome. However, this effect is likely to be small and indirect. In both scenarios, the presence of eyeglasses increased ratings of defendants’ intelligence. For the violent crime scenario, this increase was associated with less guilty verdicts. Eyeglasses also decreased ratings of defendants’ as threatening; however, this decrease was not significantly related to verdict. Thus, how intelligent a defendant appeared was a better predictor of verdict outcome than how physically threatening he appeared. Future research should examine if other indicators of intelligence (level of education, vocabulary, etc.) produce the similar effects.” See the full article here.
In other words, the glasses had a small pro-defense effect. No get-out-of-jail-free magic. Yet, trial lore spreads and criminal defense lawyers have defendants in eyewear for court proceedings.
We don’t think jurors are that easily fooled. Instead, we concur with the commenter on the Washington Post article from whom we stole the title of this blog post: “Glasses can’t hide neck tattoos”! [They can’t hide character, either.]
Brown, M. J., Henriquez, E., & Groscup, J. (2008). The effects of eyeglasses and race on juror decisions involving a violent crime. American Journal of Forensic Psychology , 26 (2), 25-43
It was only a matter of time before tattoos hit our Simple Jury Persuasion series. We’ve written about when to hide your client’s tattoos; when tattoos might serve as a voir dire aid; tattoos as a way for you to assess juror morality; provided a tattoo location guide for quick ‘tattoo interpretations’; and given you a secret link to a Science Tattoo Emporium where you can indulge in voyeurism without fear of being caught staring.
So it is only right that now we can answer what is, for some of you, a burning question. Should a trial lawyer be tattooed? While more research is needed, it appears that YES! You should get that tattoo!!! [But don’t cite us when you get passed over for Partnership.] Science has spoken, and Science says should be visible to your listeners.
Despite opinions of some that those with tattoos have deep-seated self-esteem issues, it is apparent in new research that the tattoo is merely a savvy means of connecting with your audience. A new form of social media: tattoo networking.
Here’s what researchers did.
Undergraduates (these are your younger jurors) viewed four photographs of a ‘college professor’. [See photo below.] In some photos she was tattooed and in some she was not. Then they rated her on nine teaching-related characteristics—based on her photo.
This is science at the pinnacle of first impressions and immediate rush to judgment. And the presence of tattoos was related to positive changes in the following variables among students: motivation of learners; imaginative assignments would be given, and the student perception they would recommend her to others.
It’s amazing how quickly a simple tattoo (or two or three) can influence your audience. Want to truly be persuasive with younger jurors? We say get thee to a tattoo parlor and pronto!
Wiseman DB (2010). Perceptions of a tattooed college instructor. Psychological reports, 106 (3), 845-50 PMID: 20712173
“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.
We are honored & proud to have made the American Bar Association’s Blawg 100 List. We would appreciate your vote [vote here] for us in the ‘Niche’ category.
We have an article in this edition of The Jury Expert on the Millennials (aka ‘Generation Y’). There’s been a lot of information floated out there as fact that is simply observation, opinion, and (frankly) made up stuff. Pretty shocking, eh? As trial consultants and as parents of four Millennials between us, we wanted to collect what is actually known (based on data, evidence and surveys) about this emerging generation. I mean to say—is it possible that I could misunderstand my kids?
What we found was enough for two articles rather than one so you’ll have to wait until September for the next piece (Gen Y in the law firm and in the workplace in general). But you can see the first one, Tattoos, Tolerance, Technology, and TMI: Welcome to the land of the Millennials now.
We were taken aback when we found this article from 1990 at Time.com. This piece is written about Generation X but if you tilt your head just a bit when reading it you can see it is quite reminiscent of what we are now reading about Generation Y (the Millennials) and what we would have likely read back in the late 1960’s about the Baby Boomers. What goes around, comes around. We forget our own youth and immaturity and assume that those coming up behind us are less worthy than we were, have poor work ethics, poor hygiene, and bad values. The only difference is that now, when we write, it’s on the internet (courtesy of Web 2.0) and readily searchable, spreadable, and taken as ‘research’ rather than opinion. W.R. Eilers wrote a terrific blog post on this point back in May, 2010.
What we’ve done in our article on the Millennials is to collect what we really ‘know’ about this emerging generation so that you can know what is truly descriptive of them and what is not. (We include some of the ‘what is not’ as well, just to keep you on top of things!) What we found is captured (without much detail) in our paper’s title. But there’s a lot more to this generation than tattoos, technology, tolerance and TMI and we hope you’ll stop by and read the article and leave a comment to let us know what you think! As always, we make a particular point of what all this information means for you in the courtroom and in voir dire. After all, that’s what we do!
We’ve blogged about tattoos before—looking at whether you can assess juror morality by counting tattoos and whether the location of a tattoo is meaningful (along with a cookbook photo of location and assigned interpretation).
Recently, however, a courtroom in Fresno, California has been dealing with a different issue: sentencing for two gang members who tattooed a 7-year-old boy with a gang icon. One of the two defendants is the boy’s father. Part of what has caught our interest in this story is the use of jury questionnaires where jurors are being asked if they have tattoos.
While this is sometimes done in death penalty cases, the idea of querying potential jurors about their tattoos is an interesting one. In the above case, jurors with tattoos could be useful information for either side of the case—gang sympathizers/members could be readily identified and every one with a tattoo would know the pain involved in being tattooed.
But what about privacy? Suppose I have tattoos I don’t want you to know about? While I doubt anyone will strip search jurors for body art examination—some jurors may not realize they do not have to disclose everything.
Tattoos can be artistic expression meant for public viewing or they can be meant to stay private and secretly enjoyed by oneself or a select few. As a trial consultant, I enjoy seeing people’s tattoos but I am intensely interested in seeing the tattoos you don’t want me to see. They give me secret information. Access to who you are privately and what biases you may bring in to the jury room with you. This is part of what I love about trial consulting. It lets me be a private detective. I learn things about what sorts of attitudes and experiences allow jurors to hear or result in them closing off their minds to information.
Sometimes though—access should be limited. When it is simply not my right to ‘see private tattoos’? Or other private beliefs and ideas? At what point do the parties rights to a fair trial interfere with the private citizen’s right to privacy? It’s an odd question for tattoos to raise but there you have it.