Lineups and Facial Tattoos

Tag Archives: tattoos

Lineups and Facial Tattoos

Posted on June 10, 2014 by Jeff Welty

How should a law enforcement officer conduct a lineup when the suspect has a facial tattoo?

More than one in five American adults now has a tattoo according to a recent Harris poll. My sense is that facial tattoos, although still uncommon, are also increasing in popularity. But when a person with a facial tattoo is suspected of a crime, the investigating officer may face a conundrum: how to conduct a lineup where “the suspect does not unduly stand out from the fillers” and “[a]ll fillers . . . resemble, as much as practicable, the eyewitness’s description of the perpetrator in significant features, including any unique or unusual features”? G.S. 15A-284.52.

Find fillers with tattoos. In some instances, it may be possible to find fillers who have facial tattoos that are generally similar to the suspect’s. Teardrop tattoos, for example, are relatively common, so officers may be able to find several fillers with such tattoos. (As an aside, according to Wikipedia, teardrop tattoos carry many meanings, including that the person with the tattoo has been in prison; has killed someone; has been a victim of sexual violence; or has had a loved one killed.)

Create fillers with tattoos. The United States Department of Justice produced a guide for law enforcement regarding eyewitness evidence that recommends “[c]reat[ing] a consistent appearance between the suspect and fillers with respect to any unique or unusual features (e.g., scars, tattoos) used to describe the perpetrator by artificially adding or concealing that feature.” Court opinions reveal that this technique has been used. See, e.g., Garza v. State, 2008 WL 4271701 (Tex. Ct. App. Austin Sept. 19, 2008) (unpublished) (noting that “[b]ecause appellant has a teardrop tattoo under his left eye, to ensure a representative lineup, [an officer] digitally enhanced three other pictures in the array to show tattoos under the subjects’ left eyes,” and finding that the result was not unduly suggestive).

In at least one case, an officer removed a tattoo from the suspect’s picture rather than adding it to the fillers’ photographs. State v. Preston, 40 So.3d 1052 (La. Ct. App. 5 Cir. 2010) (noting that “a computer technique removed the tattoo on the defendant’s face so that all photographs had no tattoo”). I don’t think that altering a suspect’s appearance is advisable, even if done with the best of intentions, because it tends to undermine the reliability of any resulting identification.

Use fillers without tattoos. In some instances, it may be permissible to have a lineup in which the suspect is the only one with a facial tattoo. This is particularly so if the suspect’s tattoos are not extremely prominent and were not part of the description of the suspect given by the eyewitness. See, e.g., Stewart v. State, 131 So. 2d 569 (Miss. 2014) (photographic lineup was not unduly suggestive; although the defendant was the only person in the lineup with facial tattoos and a victim testified at trial that the perpetrator’s tattoos were “what stuck out the most” about him, the tattoos were not extremely prominent and the victims had an ample opportunity to observe the perpetrator and were very confident in their identification of the defendant); United States v. Lang, 2007 WL 1725548 (5^th Cir. June 14, 2007) (unpublished) (rejecting the defendant’s argument that a “lineup . . . contained no other photographs of a man with a tattoo on his face [and was therefore] impermissibly suggestive”; police stations “are not theatrical casting offices” and a reasonable effort to find fillers is sufficient); Gonzalez v. Jacquez, 2011 WL 4550151 (C.D. Cal. May 19, 2011) (unpublished) (“The fact that Petitioner was the only person with a head tattoo does not suggest that the lineup was impermissibly suggestive. Rather, it shows only that Petitioner had a unique identifying characteristic. More importantly, however, nothing suggests that the other individuals in the live lineup did not resemble Petitioner’s general physical appearance.”).

If anyone has experience with this issue, please weigh in using the comments feature.

Category: Procedure, Uncategorized | Tags: facial tattoos, lineups, tattoos

Eyeglasses, Dress Clothes, and Tattoos

Posted on February 24, 2011 by Jeff Welty

According to this recent article in the ABA Journal, criminal defense lawyers “[i]ncreasingly . . . are asking their clients to wear glasses during jury trials,” believing that juries will be more likely to acquit bespectacled defendants, who they may view as less threatening. One prosecutor characterized the strategy as an “unspoken nerd defense.” The article links to this 2008 study, which concluded that the wearing of “[e]yeglasses had an indirect effect on verdict by increasing [jurors’] ratings of [the defendant’s] intelligence, which decreased guilty verdicts.” This got me wondering: if an indigent defendant can’t afford non-prescription eyeglasses – apparently available for as little as $8 on Amazon – is he entitled to the same at the state’s expense?

Maybe that seems like a frivolous question, and I admit to being a little tongue-in-cheek about it. But it is closely related to a some non-frivolous questions. For example, if an indigent defendant does not own dress clothes, must the state provide them? In Felts v. Estelle, 875 F.2d 785 (9^th Cir. 1989), the court held that “the state is under an affirmative duty to provide civilian clothing in a timely fashion and, if no such clothing is in its possession, to provide reasonable funds for the purchase of acceptable attire.” The decision isn’t quite on point, though, because it was grounded in a defendant’s right not to be forced to go to trial in prison garb – in that case, the police seized, then lost, all the clothing that the defendant owned, leaving him with no civilian clothing at all – and the court expressly made “no judgment about what constitutes suitable clothing.” In Johnson v. State, 2009 WL 3517992 (Ind. Ct. App. Oct. 8, 2009), the court noted with approval that the trial judge had approved a defense request to “purchase a suit, shirt, and tie from Goodwill,” apparently at state expense, but the appellate court decision didn’t focus on the existence or the extent of the right to dress clothing.

Another related issue is what to do with a defendant who is covered in offensive tattoos. The New York Times has this story about a murder defendant with, among other things, a “large swastika tattooed on his neck.” Some might argue that a person who chooses to get such a tattoo ought to bear the consequences of his choice, but the trial judge agreed to pay a cosmetologist $125 per day to cover the tattoos.

I’m not aware of any North Carolina law on these issues. I know that defense lawyers often pay out-of-pocket for dress clothes for clients; I did that myself, more than once. Perhaps such an expense would be reimbursable under, for example, section III.G of the Office of Indigent Defense Services’ fee and expense policy for non-capital trials. That section is a catchall provision for “other expenses,” beyond normal overhead, that may be reimbursed if necessary and reasonable. I don’t know whether IDS would approve, say, $25 for a Goodwill suit – if you work for IDS, or if you’re a defense lawyer who has requested reimbursement for court clothing, please post a comment. I doubt that IDS would approve $8 for non-prescription eyeglasses, but maybe if the “nerd defense” catches on . . . [Update: The powers that be at IDS have informed me that there is “no way” that IDS would pay for non-prescription glasses, but that clothing requests are considered on a case-by-case basis and sometimes approved if very modest.]

Category: Procedure, Uncategorized | Tags: dress clothes, eyeglasses, ids, nerd defense, suits, tattoos

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