THE NERD DEFENSE 769
Rule of Evidence 608(b) precludes the prosecution’s use of
extrinsic evidence for the sole purpose of attacking the
defendant’s truthfulness.^223 Subject to the court’s discretion, on
cross-examination a prosecutor may inquire into the defendant’s
use of unnecessary eyeglasses if the court deems such
information to be “probative of the [defendant’s] character for
truthfulness or untruthfulness.”^224 Nonetheless, this evidence may
still be excluded under Federal Rule of Evidence 403 due to its
potential for prejudice.^225 Therefore, the modified change-of-
appearance instruction is necessary to adequately inform jurors
of the defendant’s purposeful attempt to misguide the jury and to
ensure that jurors are properly instructed as to how to consider
the defendant’s actions. This Note’s proposed instruction
functions as a safeguard against potential jury manipulation
because it provides the prosecution with a means of countering a
defendant’s strategic use of eyeglasses as a prop to elicit juror
biases. It ensures that jurors are made aware of and know how
to consider such information, while at the same time it informs
jurors that the nerd defense does not correlate to a defendant’s
consciousness of guilt.
B. Making an Eyeglasses Inquiry the “Norm” at TrialProsecution teams and law students should be exposed to the
tactics employed by defense teams. It is important for current
and future prosecutors to learn how and under what
circumstances to request a change-of-appearance instruction and
to learn how to ask questions about a defendant’s misleading
utilization of eyeglasses. This will ensure that a jury is better
(^223) See FED. R. EVID. 608 advisory committee’s notes (stating that Rule
608(b) “has been amended to clarify that the absolute prohibition on extrinsic
evidence applies only when the sole reason for proffering that evidence is to
attack or support the witness’ character for truthfulness”); see also United
States v. Fusco, 748 F.2d 996, 998 (5th Cir. 1984) (noting that the principles
“embodied in Federal Rule of Evidence 608... limit the use of evidence
designed to show that the witness has done things, unrelated to the suit being
tried, that make him more or less believable per se”).
(^224) FED. R. EVID. 608(b).
(^225) FED. R. EVID. 403.