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that juries do consider a defendant’s appearance at trial.^12 Lisa
Wayne, President of the National Association of Criminal
Defense Lawyers, stated, “the bottom line is we know people
judge a book by its cover,” a fact that implicates “the
fundamental fairness process.”^13 A defendant who intends to
mislead the jury with respect to his or her altered appearance—
for instance, by wearing nonprescriptive eyeglasses to trial—
circumvents character evidence rules^14 by unofficially
introducing into evidence positive character traits associated with
eyeglasses (e.g., intelligence, honesty, decreased propensity to
commit a violent crime).^15 Unless a defendant’s identification is
REVISION COMM’N, TENTATIVE RECOMMENDATION AND A STUDY RELATING
TO THE UNIFORM RULES OF EVIDENCE (ART. VI. EXTRINSIC POLICIES
AFFECTING ADMISSIBILITY) 615 (1964))).
(^12) See, e.g., Mark S. Brodin, Accuracy, Efficiency, and Accountability in
the Litigation Process—The Case for the Fact Verdict, 59 U. CIN. L. REV.
15, 48 n.137 (1990) (“[P]hysical appearance of the litigant... can influence
the verdict.”). See generally Brown, supra note 9 (discussing a study linking
juror perceptions of defendant appearance with the likelihood of guilty or not-
guilty verdicts); Annie Murphy Paul, Judging by Appearance, PSYCHOL.
TODAY (Nov. 1, 1997), http://www.psychologytoday.com/articles/200909/
judging-appearance (commenting that the influence of a defendant’s
appearance inside the courtroom is so great that an “entire industry has
emerged to advise lawyers, plaintiffs, and defendants on their aesthetic
choices”).
(^13) Jenny Montgomery, Dressing Defendants, IND. LAW. (May 23, 2012),
http://www.theindianalawyer.com/article/print?articleId=28848 (quoting Lisa
Wayne).
(^14) See FED. R. EVID. 404(a)(1) (stating that “[e]vidence of a person’s
character or character trait is not admissible to prove that on a particular
occasion the person acted in accordance with the character or trait”). A
defendant’s appearance serves as a “substitute for any real discussion of
character during a trial.” Josephine Ross, “He Looks Guilty”: Reforming
Good Character Evidence to Undercut the Presumption of Guilt, 65 U. PITT.
L. REV. 227, 231 n.10 (2004).
(^15) See SMITH & MALANDRO, supra note 2, § 1.21, at 42 (suggesting that
defendants should wear eyeglasses with wider lenses because people with a
“wide-eyed look or open-eyed look are considered to be more trustworthy,
more likable, and oftentimes more innocent”); Brown, supra note 9, at 3
(discussing a study finding that defendants who wear eyeglasses appear more
intelligent and less physically threatening); see also CHRISTOPHER B.
MUELLER & LAIRD C. KIRKPATRICK, 1 FEDERAL EVIDENCE § 4:23 (3d ed.