Are tattoos that a defendant chooses to get while he's in jail awaiting trial unfairly prejudicial to him? Check out this article, where the judge ruled that the State had to pay for a cosmetologist to cover up the defendant's post-arrest tattoos with makeup every day before trial lest they prejudice jurors. (The tattoos apparently include a swastika, barbed wire, and an "obscene word".)

Since the State had nothing to do with the defendant's choice of tatoos, why? Obviously a wrong decision.

I am pretty certain that the judge knows that his ruling has virtually no chance of having a negative effect on appeal.

And, more to the point; this goes in the, "defense gets just about anything that it wants in a death case that will not clearly sink the State's case" file.

I think you're definitely right about that, John.

I am curious, though, why the State has to pay to hide the tattoos. Shouldn't the defense be doing that? It's not like the State did anything to make him get them. I know it all comes out of the same funds in the end, since I'm sure he's got appointed attorneys, but it's the principle of the thing.

Why do tattoos pre and post arrest make any difference? Seems to me if they're prejudicial, it would not be defined by when they were created. Maybe the pre arrest ones were unicorns and hearts.

I would imagine that the fact that they were post-offense matters for the purposes of identification. A pre-offense tattoo would be useful for eyewitness identification of the perpetrator. A post-offense tattoo wouldn't be relevant in that sense. In that way I think you could get around this issue by calling an inmate as a character witness who met the defendant only after the tattoos were applied. Then you could argue the witness needed them for identifications. ("Gee, that looks like Larry, but I don't see his swastika tattoos on him today...")

I think when considering whether something is "unfairly prejudicial" judges and lay people often get too hung up on the "prejudicial" part without considering whether it's *unfairly* prejudicial. Of COURSE it's prejudicial, that's why we want the jury to see it! However, it's not unfairly so, and I would argue that the defendant had waived any right to that argument by dint of voluntarily getting them. I think you could also argue forfeiture by wrongdoing... Now, if he could show that he was held down by a cellmate and forcibly tattooed, that's another story.

By analogy- I had a protective order hearing where the petitioner was a 23 year old, 5'0", 105 pound woman. The respondent was 6'5", 280. Did I ask them both to stand up at the same time? You bet I did. Was that prejudicial? Of course, that's why I did it! But it wasn't *unfair*. What was unfair was this guy deciding to take a swing at his ex-girlfriend. It went a long way to showing that the punch that connected with her jaw wasn't a mistake, as he said it was.