THE NERD DEFENSE 765
of-appearance instruction when the defendant’s identification is
specifically at issue.^204 Presumably, this is because eyeglasses
tend to cover a significant portion of the eye region and can
restructure the appearance of facial features,^205 making it difficult
to recognize a defendant who wears eyeglasses.^206 In Harris, the
appeals court agreed with the lower court that the “wearing of
glasses at trial [has] some probative value” which is not
outweighed by its prejudicial effect.^207 However, when a
defendant’s identification is not specifically at issue, the
prosecution cannot request a change-of-appearance instruction
because such an instruction is designed to address changes in
appearance related to potential misidentification.^208 This Note
proposes two possible solutions to this problem.
A. Modifying the Change-of-Appearance Instruction When
the Defendant’s Identification Is Not Specifically at
IssueA defendant’s use of nonprescriptive eyewear at trial
generally constitutes a specific attempt to intentionally misguide
the jury, and it works against the fundamental principles of a
judicial system that seeks the truth in all cases. Jury awareness
of this tactic will help to lessen the impact of intentional jury
manipulation. As currently utilized by courts, the change-of-
appearance instruction is particularly harsh because it can imply
a consciousness of guilt.^209 Although change-of-appearance
(^204) Harris v. United States, No. 08-CF-1405, at 5–6 (D.C. Cir. 2012).
(^205) SMITH & MALANDRO, supra note 2, § 1.21, at 42.
(^206) See Leder et al., supra note 24, at 216–18 (finding that “glasses
impede the immediate recognition of faces” because it takes longer to
recognize faces with full-rim glasses than it does to recognize faces either
without glasses or with rimless glasses).
(^207) Harris, No. 08-CF-1405, at 5.
(^208) United States v. Perkins, 937 F.2d 1397, 1403 (9th Cir. 1991); see
also MULDOON, supra note 16, § 9:262 (“The prosecutor may properly
comment on the defendant’s changed appearance at trial, as compared to the
time of the crime, where identification is a trial issue.”).
(^209) Inferences drawn about a defendant’s “consciousness of guilt”
reasonably “flow[] from any change of appearance” instruction that is given
to the jury. Perkins, 937 F.2d at 1403; People v. Slutts, 259 Cal. App. 2d