THE NERD DEFENSE 729
relevant at trial, wearing unnecessary eyeglasses to artificially
alter appearance will not officially put a defendant’s appearance
at issue.^16 Under the Federal Rules of Evidence, when a
defendant’s identification is not specifically at issue, the
prosecution is unable to counter this unofficial introduction of
character evidence.^17 Allowing a defendant to purposefully
falsify a vision defect by wearing nonprescriptive eyeglasses is
akin to allowing a defendant to appear in a wheelchair before the
jury when he or she is perfectly mobile.^18 Both actions fabricate
- (stating that “[c]haracter embraces qualities like honesty or dishonesty,
[and] being peaceful or prone to violence”).
(^16) Generally, only when a defendant’s identification is a relevant trial
issue may a prosecutor comment on the defendant’s change in appearance
from the time that the crime was committed to the time that the defendant
appears at trial. GARY MULDOON, HANDLING A CRIMINAL CASE IN NEW
YORK § 9:262 (2012–2013); see also People v. Sanders, 622 N.Y.S.2d 986,
987 (App. Div. 1995) (reasoning that the prosecutor’s comment on the
defendant’s change in hairstyle was not prejudicial, in part, because the
defendant’s identification was a factor in the trial).
(^17) A defendant must first introduce evidence of his or her pertinent
character traits at trial, and only when such evidence is officially admitted
may the prosecution offer evidence to rebut it. See FED. R. EVID.
404(a)(2)(A); see also FED. R. EVID. 405 (stating that proof of “character” at
trial through instances of specific conduct is limited to situations in which “a
person's character or character trait is an essential element of a charge,
claim, or defense” or is otherwise admissible). However, when a defendant’s
identity is contentious at trial, eyeglasses may serve as a disguise, thereby
hindering identification and thus making a defendant’s use of eyeglasses
admissible as evidence relevant to the case. See Steve D. Charman & Gary
L. Wells, Eyewitness Lineups: Is the Appearance-Change Instruction a Good
Idea?, 31 LAW & HUM. BEHAV. 3, 5 (2007), available at
http://www.psychology.iastate.edu/~glwells/wells_articles_pdf/charman&wel
ls_appearance_change.pdf (noting that disguises typically involve the addition
of items such as hats, eyeglasses, or masks, and observing the “strong
debilitating effect of disguise on accurate recognition rates”); District of
Columbia v. Carter, No. 2010 CF1 005677 (D.C. Super. Ct. 2012) (offering
an example of a prosecutor questioning a defendant’s sudden use of
eyeglasses at trial when the defendant’s identification is at issue).
(^18) See Jack Marshall, The Perplexing “Nerd Defense,” ETHICS ALARMS
(Feb. 21, 2011, 8:18 AM), http://ethicsalarms.com/2011/02/21/the-
perplexing-nerd-defense/#more-4880 (“Glasses convey information about
physical capabilities the same way coming into court on crutches or in a
wheelchair does.”).