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a defendant’s identity is only at issue as a procedural
requirement,^216 the prosecution is limited to informing the jury of
the defendant’s use of unnecessary eyewear through relevant
admitted evidence, such as photographs,^217 answers to juror
inquiries,^218 or evidence first introduced by the defendant.^219
However, these methods are insufficient because they are
unpredictable and leave jurors to consider evidence concerning
the defendant’s use of unnecessary eyeglasses but without proper
instruction as to how to consider such conduct.^220
Any inquiry into a defendant’s unnecessary use of eyeglasses
at trial will likely be aimed at attacking a defendant’s
truthfulness.^221 However, even if a defendant first introduces
evidence of his or her truthfulness by taking the stand,^222 Federal
(^216) For example, if the defense stipulates to the defendant’s identity
before trial.
(^217) If a photograph presented as evidence at trial depicts a defendant
without eyeglasses and the defendant subsequently wears eyeglasses at trial,
the jury may acknowledge the defendant’s change in appearance.
(^218) Certain states allow jurors to pose questions to defendants during trial.
During Jodi Arias’ capital murder trial, the jury posed two specific questions
concerning her eyeglasses: “What is your eye prescription?” and “If you are
so nearsighted then how could you drive?” Graham Winch, Arias Grilled
With Questions By Jurors, HLN LIVE BLOG (Mar. 6, 2013),
http://www.hlntv.com/article/2013/03/06/live-blog-what-will-jurors-ask-jodi-
arias.
(^219) See FED. R. EVID. 404(a)(2)(A).
(^220) See generally 3 CLIFFORD S. FISHMAN & ANNE T. MCKENNA, JONES
ON EVIDENCE § 16:26 (7th ed. 1997) (stating that twelve federal circuits
express a strong preference that when a jury is instructed on the issue of a
defendant's character, "the judge instruct the jury to consider evidence
relating to defendant's character together with the rest of the evidence in the
case").
(^221) “Character” embraces the quality of truthfulness, and although
“character” does not include having either “good eyesight or impaired
vision,” a defendant’s eyesight becomes linked to his or her truthfulness
when determining whether the defendant truly requires eyeglasses. MUELLER
& KIRKPATRICK, supra note 15, § 4:23.
(^222 2) MUELLER & KIRKPATRICK, supra note 15, § 4:43 (stating that
"[w]hen defendants [who take the stand] describe good behavior, patterns, an
honest, hardworking, nonviolent, or caring disposition, they open to
prosecutors the right to cross-examine on specific acts relevant to that
testimony").