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equipped to properly consider a defendant’s strategic change of
appearance.
If the prosecution is suspicious of a defendant’s sudden use
of eyeglasses at trial, the prosecution should be allowed to
inquire, in the absence of the jury, into the defendant’s need for
eyeglasses. If the defendant is unable or unwilling to offer proof
of his or her need for eyeglasses—for example, through a
prescription, evidence of prior use of eyeglasses, or an eye
exam—then the court should grant the prosecution’s request for
a modified change-of-appearance jury instruction. One likely
objection to this rule is that indigent defendants might be unable
to pay for an eye exam that is necessary to prove their need for
eyeglasses. As such, any rule requiring defendants to offer proof
of their need for eyeglasses needs to be accompanied by a rule
requiring the state to pay for any necessary eye exams. Another
objection to this rule might be that defendants should not be
required to assist in their own prosecution. However, wearing
unnecessary eyeglasses is a defendant’s choice and such a
strategic accessory serves to mislead the jury. Making an
eyeglasses inquiry the norm might lead defense attorneys and
defendants to think twice before employing the nerd defense—
and therefore lessen the ability of defendants to hinder the truth-
seeking process by purposefully eliciting deep-seated biases in
jurors.
CONCLUSION
The Supreme Court has long recognized that the right to an
impartial jury, afforded by the Sixth Amendment,^226 is
fundamental to a fair trial.^227 The right to an impartial jury
includes the right to exclude potentially biased jurors.^228 While
(^226) See U.S. CONST. amend. VI (providing that “[i]n all criminal
prosecutions, the accused shall enjoy the right to a speedy and public trial, by
an impartial jury”).
(^227) See, e.g., Taylor v. Louisiana, 419 U.S. 522, 525 (1975) (stating that
the Sixth Amendment guarantees an impartial jury trial).
(^228) See Turner v. Murray, 476 U.S. 28, 36 (1986) (holding that “by
refusing to question prospective jurors on racial prejudice, the trial judge
failed to adequately protect petitioner’s constitutional right to an impartial