THE NERD DEFENSE 727
identity was a key issue in the case.^8 However, the court of
appeals left open a critical question: can a court issue a change-
of-appearance instruction if a defendant wears nonprescriptive
eyeglasses to trial when the defendant’s identity is not
specifically at issue? This tactic is known as the “nerd
defense”—a persistent and unrealistic change in one’s
appearance aimed at persuading a jury of the defendant’s low
propensity to commit a crime.^9 The court in Harris highlighted
the importance of the “glasses issue” by observing that an
increasing number of defendants have appeared at trial wearing
nonprescriptive eyeglasses.^10
Evidence concerning a defendant’s appearance is rarely
admitted because it is often considered more prejudicial to the
defendant than it is probative.^11 However, it is well documented
the jury that “there is no evidence in the record that Mr. Harris needs glasses
to read or anything else” and found that Harris’ explanation for the use of
eyeglasses was mere “speculation”); see also Brief for Appellee, supra note
6, at 30 n.32.
(^8) While one witness heard “‘two muffled gunshots’ and ‘could see the
gun being held and... most of the [shooter’s] arm,’” the witness did not
see the shooter’s face. Another witness also heard the gunshots but did not
see the shooter. Harris, No. 08-CF-1405, at 2.
(^9) Keith L. Alexander, Trendy, Non-Prescription Eyewear Latest in
Criminal Defendant Strategic Attire, WASH. POST (Mar. 27, 2012),
http://www.washingtonpost.com/local/crime/trendy-non-prescription-eyewear-
latest-in-criminal-defendant-strategic-attire/2012/03/17/gIQA62xJeS_story.html
(quoting New York defense lawyer Harvey Slovis, who encourages “all his
clients [to] wear glasses” to make them “appear less intimidating”); see also
Michael J. Brown, Is Justice Blind or Just Visually Impaired? The Effects of
Eyeglasses on Mock Juror Decisions, JURY EXPERT, Mar. 2011, at 1, 3,
available at http://www.thejuryexpert.com/wp-content/uploads/2011/03/
TJEVol23Num2_Mar2011.pdf (finding that defendants who wear eyeglasses
appear to be more intelligent and less physically threatening).
(^10) Tillman, supra note 5 (noting that Chief Judge Eric Washington found
the eyeglasses issue particularly “compelling” because “a growing number of
defendants had been showing up for trial wearing glasses”).
(^11) See FED. R. EVID. 404 advisory committee’s notes (“Character
evidence is of slight probative value and may be very prejudicial. It tends to
distract the trier of fact from the main question of what actually happened on
the particular occasion. It subtly permits the trier of fact to reward the good
man and to punish the bad man because of their respective characters despite
what the evidence in the case shows actually happened.” (quoting CAL. LAW