Requiring the Defendant to Pose for the Jury

Suppose in a robbery case that the State asks the defendant–who does not plan to testify–to stand in the courtroom wearing a mask allegedly worn by the robber. The defense objects on grounds of self-incrimination. How should the court rule?

Case law holds that requiring a defendant to stand or otherwise exhibit himself or herself before the jury is permissible and does not does not violate the privilege against self-incrimination. That privilege “offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture.” Schmerber v. California, 384 U.S. 757, 764 (1966). The privilege protects a defendant “only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature.” Id. at 761. Furthermore, “compulsion which makes a suspect or accused the source of ‘real or physical evidence’ does not violate [the privilege].” Id. at 764; see also 1 Kenneth S. Broun, Brandis & Broun On North Carolina Evidence § 126 (7th ed. 2011) (discussing the privilege against self-incrimination); State v. Suddreth, 105 N.C. App. 122, 127-28 (1992) (requiring the defendant to put on an executioner’s mask similar to one worn by the perpetrator and to stand in front of the jury did not violate the privilege against self-incrimination); United States v. Turner, 472 F.2d 958, 959-60 (4th Cir. 1973) (requiring the defendant to put on a wig and sunglasses to enable the jury to compare his physical appearance with photographs of the bank robber did not violate the defendant’s right against self-incrimination). Nor does this procedure violate the due process clause of the federal or state constitutions. State v. Perry, 291 N.C. 284, 291 (1976).

This procedure is sometimes called a view of the person and has been allowed in a variety of circumstances, including:

• to show the presence or absence of scars; State v. Sanders, 280 N.C. 67, 71 (1971) (at the prosecutor’s request the defendant was required to remove his shirt and undershirt to impeach his testimony that the victim cut him with a razor-like instrument); State v. Foster, 293 N.C. 674, 683 (1977) (not error to allow the jury to view scars from accomplice’s wounds allegedly inflicted by the victim);
• to speak a word or phrase for purposes of voice identification in court; State v. Locklear, 117 N.C. App. 255, 258-60 (1994) (defendant was asked to speak the words allegedly used during the crime); State v. Thompson, 129 N.C. App. 13, 20-21 (1998) (same; citing Locklear).
• to wear a mask or other disguise; Perry, 291 N.C. at 288-92 (defendant required to put on an orange stocking mask allegedly worn by the perpetrator); Suddreth, 105 N.C. App. at 127-28 (1992) (defendant required to put on an executioner’s mask like one worn by the attacker).
• to display teeth; State v. Summers, 105 N.C. App. 420, 422-23 (1992) (defendant required to display his teeth in a case where the victim described the assailant as a person with missing teeth).

Sometimes the view pertains to someone other than the defendant. For example, State v. Green, 55 N.C. App. 255, 257 (1981), indicates that a child may be exhibited to show a resemblance to the alleged father in a case involving the father’s failure to support an illegitimate child.