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questions: (1) Can the change-of-appearance instruction be given
in a case in which a defendant’s identification is not specifically
at issue but the defendant wears nonprescriptive eyeglasses to
trial? and (2) How should a judge instruct the jury concerning a
defendant’s “significant” change of appearance when the
defendant’s identity is not specifically at issue?^190 This type of
defendant is not attempting to avoid identification;^191 rather, he
or she is attempting to misguide the jury with persistent and
subtle changes in appearance that are intimately linked with
society’s most deeply rooted stereotypes.^192 To avoid such
misguidance, a jury should be instructed in a manner that
balances a defendant’s right of expression against the jury’s right
to the truth.
B. Carefully Balancing a Defendant’s Constitutional Rights
Against Potential Jury ManipulationA defendant’s right to a fair trial is one of his or her
fundamental liberties, a right protected by the Due Process
Clause of the Fourteenth Amendment.^193 Due Process Clause
principles firmly hold that the State cannot force a defendant to
appear before a jury in a manner that suggests that the defendant
to permit the inference that the person on trial was the person who committed
the crime.”).
(^190) This question is unanswered by the court in Harris. Harris is the first
case focusing solely on a defendant’s use of unnecessary eyeglasses to signal
a “significant” change in appearance and thus justifying the resulting jury
instruction. Compare Harris, No. 08-CF-1405, at 5, with Carr, 373 F.3d at
1353 (looking at a combination of the defendant’s beard, weight, and glasses
to signal “profound alterations” in appearance and justifying the resulting
jury instruction).
(^191) A defendant who stipulates to identification is not attempting to avoid
being identified. Attempting to avoid identification through a significant
change in appearance would warrant the issuing of a change-of-appearance
instruction to the jury. See Harris, No. 08-CF-1405, at 4–5.
(^192) See Hellström & Tekle, supra note 20, at 695 (articulating that
judgments about intelligence and successfulness can be traced back to the
development of myopia caused by extensive schoolwork in childhood days).
(^193) U.S. CONST. amend. XIV; Estelle v. Williams, 425 U.S. 501, 503
(1976).