Dec200914
Tattoos as Evidence in Criminal Trials
01:51 PM
nazi tattoo.jpgToday's tattoo law post raises this question:

Should the state pay for a cosmetologist to cover the Neo-Nazi tattoos of a defendant in a murder trial where he faces the death penalty?

A Florida judge presiding over a Pasco County murder trial said Yes according to this Miami Herald article:  

"Judge Michael Andrews, acting on a request by Ditullio's lawyer, ruled that the tattoos are potentially offensive and could influence a jury's opinion in the state's death penalty case against the 23-year-old accused of donning a gas mask, breaking into a neighbor's home and stabbing two people, killing one of them."

The decision led to a flood of articles and editorials over whether the state should've picked up the $150/day tab for the tattoo cover-up. My guess was that the judge was being cautious in light of previous cases.

For example, in Dawson v Delaware, the US Supreme Court said the defendant's First and Fourteenth Amendment rights were violated when the prosecution admitted his Aryan Brotherhood tattoo into evidence -- the murder he committed wasn't racially motivated and so the hate group association and tattoo were not relevant.

However, this past June, in Wood v State, the Eleventh Court of Appeals in Texas ruled that the prosecution did not violate a defendant's First Amendment rights when commenting on his tattoos -- text on each eyelid that said "Lying Eyes." The court said that, unlike the Dawson case, the tattoos were not used to show gang affiliation but "to show his disregard for the truth and his moral character. A person's tattoos can reflect his character and demonstrate a motive for his crime." For interesting commentary on this case, read what Eugene Volokh has to say.

In NY, the state's highest court ruled in 2004 that Nazi tattoos could be used as evidence that a defendant committed a hate crime in The People v. Slavin. In that case, Slavin was tried for luring two Mexican laborers into an abandoned warehouse and killing them. During the trial, to show hate was a motivating factor, the prosecution offered jurors a slideshow of Slavin's tattoos including black swastikas, a white fist and a skinhead kicking a large-nosed man wearing a skullcap. Slavin appealed saying that this violated his Fifth Amendment rights against self-incrimination. The NY Court of Appeals disagreed saying:

"We conclude that defendant was not "compelled ... to be a witness against himself" within the meaning of the privilege. The tattoos were physical characteristics, not testimony forced from his mouth. However much the tattoos may have reflected defendant's inner thoughts, the People did not compel him to create them in the first place."

Back to this past week's case, the question is whether the judge played it too safe in light of the case law. Defendant Ditullio showed up in court with his Nazi tattoos covered and hair trimmed, as shown here. The jury could not reach a unanimous verdict and the judge declared a mistrial. The retrial is scheduled for March 22. Let's see if that jury will see the real Ditullio, tattoos and all.       


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EDITOR IN CHIEF:
Marisa Kakoulas
CONTRIBUTORS:
Miguel Collins
Craig Dershowitz
Brian Grosz
Sean Risley
Patrick Sullivan
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