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cautionary instructions to consider only relevant evidence,^86 then
why do courts,^87 jury consultants,^88 and defense teams^89 go to
such lengths to alter a defendant’s appearance at trial? Such
http://psysociety.wordpress.com/2011/07/10/casey-anthony/ (“Overall, jurors
are more likely to be lenient towards defendants that are similar to them in
some meaningful way. For example, jurors are less likely to convict
defendants if they are of the same gender or race, or if they come from a
similar socioeconomic background.”); John Schwartz, Extreme Makeover:
Criminal Court Edition, N.Y. TIMES (Dec. 5, 2010),
http://www.nytimes.com/2010/12/06/us/06tattoo.html (“‘It’s easier to give
someone who looks like you a fair shake,’ said [defense attorney] Bjorn E.
Brunvand.”).
(^86) CTJNY § 3:2 (2012) (describing to the jury what kind of evidence
may be considered during deliberations by stating that “[e]vidence consists of
the sworn testimony elicited both on direct examination and cross-
examination, and redirect and recross, if any, plus any concessions made
during the trial by counsel, and any exhibits received and marked in
evidence”); see also FED-JI § 12:03 (6th ed. 2013) (“The evidence in this
case consists of the sworn testimony of the witnesses—regardless of who may
have called them—all exhibits received in evidence—regardless of who may
have produced them—all facts which may have been agreed to or stipulated
and all facts and events which may have been judicially noticed.”); PATTERN
JURY INSTRUCTIONS, Fifth Circuit, Criminal Cases, § 1.01, 3–4 (2012)
(explaining to the jury what is not evidence, which includes “[s]tatements,
arguments, and questions by lawyers... [o]bjections to questions...
[t]estimony that the court has excluded... [and] [a]nything [the jurors] may
have seen, heard, or read outside the courtroom... .”).
(^87) See, e.g., Neil Nagraj, Court Pays $150 a Day to Cover Neo-Nazi
John Ditullio’s Tattoos During Murder Trial, N.Y. DAILY NEWS (Dec. 7,
2009), http://articles.nydailynews.com/2009-12-07/news/17940784_1_neo-
nazi-compound-tattoos-extreme-makeover (describing a Florida court’s order
that required the state to pay a cosmetologist $150 for each day of trial in an
effort to cover the defendant’s facial tattoos (barbwire and teardrops) and
neck tattoos (large swastikas and a vulgar phrase)).
(^88) Literature on trial practice devotes significant portions to how to alter
a defendant’s appearance in accordance with known juror perceptions and
stereotypes. See generally SMITH & MALANDRO, supra note 2, §§ 1.01–2.08.
(^89) See, e.g., Ivy Bigbee, Fashioning a Defense: Casey Anthony’s
Evolving Style, CRIM. REP. DAILY (Apr. 29, 2011), http://web.
archive.org/web/20120520050256/http://blogs.discovery.com/criminal_report/
2011/04/fashioning-a-defense-casey-anthonys-evolving-style.html (noting that,
due to her defense team, “Anthony’s courtroom appearances at hearings
ironically have spoken volumes, without her uttering a single word”).