THE NERD DEFENSE 767
misleading character evidence and further instructs the jury on
how to properly consider such a tactic. This change-of-
appearance instruction should be given when: (1) a defendant
dons unnecessary eyeglasses to trial and (2) identification of the
defendant is not specifically at issue. The proposed modification,
adapted from the instructions given in Carr^213 and Harris,^214
reads as follows:
During trial, the defendant changed his or her appearance
by wearing eyeglasses that he or she does not need. This
particular alteration in appearance after the commission
of a crime and in preparation for trial does not create a
presumption of guilt. It is entirely possible that an
innocent person would resort to both lawful and unlawful
means to avoid prosecution. The wearing of unnecessary
eyeglasses at trial is lawful.
In this case, the defendant’s wearing of eyeglasses
constituted a falsification of a vision deficiency. You may
consider this falsification an attempt by the defendant to
gain favorable judgment based upon the positive social
stereotypes associated with the wearing of eyeglasses,
which can include truthfulness, intelligence, and
nonaggressive demeanor.
When you consider the evidence presented in this case,
you may take into account the defendant’s choice to
appear at trial wearing eyeglasses that he or she does not
need. You are not required to do so.A defendant’s use of unnecessary eyeglasses at trial silently and
unofficially introduces character evidence.^215 Consequently, when
(^213) See United States v. Carr, 373 F.3d 1350, 1353 (D.C. Cir. 2004).
(^214) See Trial Transcript at 87–88, United States v. Harris, No. CF1-
18801-07 (D.C. Super. Ct. 2008), reprinted in Appellant’s Limited
Appendix, Harris, No. 08-CF-1405.
(^215) See Brown, supra note 9, at 3 (using a case with “purposefully
ambiguous evidence” to examine the effect of eyeglasses on juror perceptions
of defendants and finding both a direct link between eyeglasses and
perception of increased intelligence and a correlation between increased
intelligence and fewer guilty verdicts). Everything about a defendant’s
appearance has an “impact in the courtroom.” SMITH & MALANDRO, supra
note 2, § 1.26, at 54.