Friday, January 28, 2011

Untattoo You

What happens when you cross the Avon Lady with a Neo-Nazi murder defendant?

Guest essay by Sam Sommers*

Several colleagues and students 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?

Sam Sommers is an award-winning social psychology professor at Tufts University who has served as an expert witness on bias.

*This essay originally appeared on Dr. Sommers' Psychology Today blog, The Science of Small Talk. Reposted with the written permission of Sam Sommers.

Previous guest essay by Sam Sommers: On police, profiling, and Henry Gates (July 28, 2009)

10 comments:

  1. First of all a tattoo is the source of a person's personality, traits and ideals embedded on his or her body surface. Some tattoos are a source of identification, for e.g., military tattoos. Covering up the tattoo only portrays the person under judicial investigation as either a liar or have something to hide. I would say that covering a tattoo up is a bad idea, it does not matter what your opinion is. At least then you show that you have nothing to hide...so what if one is bigot, at least you do not hide and it does not mean that being a bigot you get a conviction for one believes. The underlying motive is always the truth - either good or bad, let the media and public form their perceptions but lying and hiding will only persevere the consequences.

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  2. It's a tricky one. I really don't know what I think. On the one hand, it's ridiculous that the court should pay for this, but on the other hand, it's vital that poor people have exactly the same legal rights as rich ones. Which of course is never going to happen so long as we have private lawyers, the best ones charging the most; but everything we can do to approximate that has to be a good thing.

    it reminds me of this spot-on Onion piece.

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  3. I think it's an excellent idea to hide the physical appearance in some way. Slick sociopaths have often been able to work a jury,etc. in their favor. And I know of a man whose appearance works against him because he's phobic about dentists, overweight, has bad acne and thinks in a confused way because of his mental illness.
    He was falsely accused years ago of sexually abusing a child. The child, as it turns out, was lying..(she later recanted and gave a strong deposition...two older women encouraged her to lie and she was a very smart,wilful and street-smart child so it appealed to her for her purpose, which was to get this man away from her older sister who she was extremely close to.
    So, the man looked very guilty, the child very innocent and in truth it was the opposite. Children are protected in court ...but in this case, the child was the guilty party. The innocent victim was the man who looked guilty. And he is still on the sex offender registry, still has a felony (the only thing ever on his record).... people often are strongly swayed by appearance more than is good. In fact, many take pride in thinking they can tell who's bad, who's good by this...and you cannot often do that at all.

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  4. Probative but inflammatory. I would order that the state pay to cover the tattoos.

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  5. Wish someone would post an intelligent response here, because it's most interesting, and I confess I can't work out which side appears is in the right!

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  6. Oh, there seem to have been responses that I didn't see - didn't mean to imply anything about these comments, I just didn't see ANY comments when I posted - odd!

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  7. Hi Cavall de Quer,

    Sorry 'bout that. My fault. I typically moderate posts, and I wasn't around. I've changed the settings and I'll see how this works.

    Not sure there's one right answer to this one, but I found the issue intriguing -- as are many that Dr. Sommers blogs about.

    Karen

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  8. We write about tattoos more than we ever imagined we would at The Jury Room blog. As with many forms of bias, it isn't so much about how things should be--but how they are as you enter the courtroom.

    See what Doug thought about this issue (with a link to the NYT piece) at our blog: http://keenetrial.com/blog/2010/12/06/tattoos-when-should-you-clean-up-your-witness/

    As fans of both Sam and Karen, we were glad to see this piece addressing the questions of tattoos or not/tattoos.

    Rita

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  9. Hi Rita,

    Thanks for posting the link to Doug's commentary. I found his comment on the specific case particularly interesting:

    "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."

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  10. For more commentary on this post, visit "Gather":

    http://www.gather.com/viewArticle.action?articleId=281474979026290

    A shortened url to the page is:

    http://bit.ly/hjoGRn

    ReplyDelete

 
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