THE NERD DEFENSE 761
The D.C. Court of Appeals premised its justification for
upholding the lower court’s change-of-appearance instruction on
two factors: (1) a defendant’s identification must be at issue and
(2) a defendant must have “significant[ly]” changed his or her
appearance before trial.^187 The fundamental problem with this
opinion is that it does not define the scope of “identification”
matters for purposes of issuing a change-of-appearance
instruction.^188 Does the defendant’s identification need to be
specifically at issue, as it was in Harris, for the court to
properly issue a change-of-appearance instruction? Or can the
holding in Harris be interpreted to encompass all situations in
which a witness is asked to identify the defendant simply as a
procedural requirement—even when no genuine issue of
identification is present?^189 Harris leaves unanswered two critical
holding that even if the change-of-appearance instruction was in error, it was
harmless under Kotteakos v. United States, 328 U.S. 750, 764–65 (1946));
Zoe Tillman, Appeals Court Rules Glasses Instruction Not Prejudicial in
Murder Trial, BLT: BLOG OF LEGAL TIMES (Oct. 24, 2012, 1:33 PM),
http://legaltimes.typepad.com/blt/2012/10/appeals-court-rules-glasses-
instruction-not-prejudicial-in-murder-trial.html.
(^187) Harris, No. 08-CF-1405, at 5–6 (focusing on identification by
relying heavily on United States v. Carr, 373 F.3d 1350, 1353 (D.C. Cir.
2004), which reasoned that a defendant’s change in appearance should have
been coupled with “anticipa[tion] that witnesses would be called at trial to
identify him”).
(^188) Harris, No. 08-CF-1405, at 5 (noting that the trial court recognized
that a change in the defendant’s appearance must be significant to warrant a
change-of-appearance instruction). The trial court touched on the scope of the
change-of-appearance instruction when the trial judge stated, “I’m not sure if
[wearing glasses] is [an] attempt to change his appearance so he couldn’t be
identified. It’s not like he changed his appearance before a lineup or before
some photographic identification. He’s wearing glasses now.” Brief of
Appellant, supra note 173, at 5. Still, the trial court issued the instruction
and the appeals court affirmed the instruction without any further
clarification. Harris, No. 08-CF-1405, at 6.
(^189) When the defense stipulates to a defendant’s identification, there is no
genuine issue as to identification. Compare United States v. Alexander, 48
F.3d 1477, 1490 (9th Cir. 1995) (“Identification of the defendant as the
person who committed the charged crime is always an essential element
which the government must establish beyond a reasonable doubt.”), with
United States v. Darrell, 629 F.2d 1089, 1091 (5th Cir. 1980) (“[A] witness
need not physically point out a defendant so long as the evidence is sufficient