Apr201424
Tattoos at Trial
10:34 PM
murder tattoo.jpg
A Kansas man who is charged with murder asked the court to either remove or cover up his large neck/throat tattoo -- a tattoo of the word MURDER in mirror image (it's art just for him!) in big shaky block letters. Ok, I'll let that sink in for a while.

This isn't a post on bad life choices, however. For me, especially as a lawyer, I'm interested in the issue of justice and what constitutes a "fair trial." According to the Great Bend Tribune, the attorney of Jeffrey Wade Chapman is asserting that there would be no fair trial if a jury were to see that tattoo (a tattoo that was done over a year before the crime he's accused of). The Tribune wrote:

According to the motion filed by defense attorney Kurt Kerns, Wichita, Chapman has asked the jail to allow a professional tattoo artist to remove and/or cover up the tattoo across his neck that is a mirror image of the word "murder" in capital letters. The motion notes it is a large tattoo that cannot be easily hidden with clothing.

"Mr. Chapman has secured a licensed tattoo artist from Hays who is willing to go to the jail," the motion states. "Mr. Chapman's tattoos are not relevant to any material facts and Mr. Chapman asks for the court to exclude any mention of his tattoos at trial and further to be allowed to cover them up in an appropriate manner. The fact that he has 'Murder' tattooed across his neck is irrelevant to the State's case and extremely prejudicial to Mr. Chapman if introduced at trial or observed by the jury."
The State replied that they don't allow tattooists to practice in jails [
Kansas Administrative Code 69-15-14 states, "tattoo artists shall not practice at any location other than a licensed facility," which meets specific hygiene standards set by the Kansas Board of Cosmetology.]

And so, today, 
an agreement was reached that Chapman would wear a turtleneck in court. Problem solved!

But the issue of having prejudicial tattoos on view in a criminal trial has been much more difficult to address when they are facial tattoos -- and there are A LOT of gang/criminal/racist facial tattoos out there.

As I wrote about back in 2009 in my Tattoos as Evidence in Criminal Trials post, a Florida judge granted a motion to have the state pay a cosmetologist
$150 a day to cover the Neo-Nazi facial tattoos of a man who was facing the death penalty for murder, stating "the tattoos are potentially offensive and could influence a jury's opinion." Naturally, the act of tax payer money going to a make-up artist to help a racist accused of murder didn't sit well with many people. The NY Times had interesting coverage of that case -- as well as a description of the cover-up process.

For more of discussion on tattoos as evidence, here's a list of cases from my 2009 post:

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, 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."
What do you think? Share your thoughts on the Needles & Sins FB group page under this post link.


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