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conformity with that trait or characteristic.”^81 Nevertheless, a
defendant’s physical appearance at trial, whether consciously or
unconsciously acknowledged, significantly influences perception
of the defendant’s character and can influence the outcome of a
case.^82
Behind the decision to refrain from giving jurors a proper
instruction about consideration of a defendant’s appearance at
trial lie two incorrect assumptions: (1) jurors are unbiased^83 and
(2) jurors consider only relevant evidence at trial.^84 However,
jurors tend to favor defendants whom they find more relatable,
regardless of the facts.^85 If jurors do, in fact, follow a court’s
(^81) Orenstein, supra note 80, at 668.
(^82) See Steven Fein et al., Hype and Suspicion: The Effects of Pretrial
Publicity, Race, and Suspicion on Jurors’ Verdicts, 53 J. SOC. ISSUES 487,
488–89 (1997) (observing that one factor contributing to “prejudicial effects
of nonevidentiary information” is a juror’s inability to block out an image or
thought of the defendant); Ross, supra note 14, at 227, 232 (“[T]he perceived
character of an accused affects the outcome of jury trials.. .”); see also
Steven Shepard, Note, Should the Criminal Defendant Be Assigned a Seat in
Court?, 115 YALE L.J. 2203, 2208 (2006) (“A defendant’s appearance
matters to the jury and can affect the outcome of a trial.”).
(^83) See HAZEL THORNTON, HUNG JURY: THE DIARY OF A MENENDEZ
JUROR 101–02 (1995); see also Brown, supra note 9, at 6 (quoting Tara
Trask, a jury consultant with seventeen years of experience in litigation
strategy, who observed that “jurors tend to assign credibility to those who fit
the stereotypes they have”).
(^84) THORNTON, supra note 83, at 101–02. Jurors operate as “detectives,
assimilating important visual information to add to evidence,” even when the
visual information is irrelevant to the facts of the case. SMITH & MALANDRO,
supra note 2, § 1.50, at 90.
(^85) E.H. SUTHERLAND & D.R. CRESSEY, PRINCIPLES OF CRIMINOLOGY
442 (7th ed. 1966) (“The main work of a trial lawyer is to make a jury like
his client, or, at least, to feel sympathy for him; facts regarding the crime are
relatively unimportant.”); see also Douglas Keene, Tattoos: When Should You
Clean Up Your Witness?, KEENE TRIAL CONSULTING (Dec. 6, 2010),
http://keenetrial.com/blog/2010/12/06/tattoos-when-should-you-clean-up-your-
witness/ (“The goal of the attorney presenting a witness is to help the jury
see the witness as ‘kind of like me’ or ‘someone I can trust.’ Appearance is a
part of that. If someone looks scary or unfamiliar, they are judged as less
trustworthy and less believable. The goal is to help them be more ‘relatable,’
regardless of the facts.”); Melanie Tannenbaum, Casey’s Case: What
Psychology Says About Anthony’s Acquittal, PSYSOCIETY (July 10, 2011),