Since around 40% of U.S. adults between the ages of 26-40 have at least one tattoo, it probably shouldn't surprise you to learn that tattoos are starting to inspire more notice in the courtroom as well. If you're accused of a crime, there's a strong possibility that the prosecution will want to use your visible tattoos as evidence against you. Here's what you should know.
Can you cover up your tattoos in court?
Most defense attorneys want their clients to cover up visible tattoos as much as possible, even if that means long sleeves and buttoned collars in the middle of a summer session in a stuffy courtroom. Even though body art is becoming more common, visible tattoos still convey a sense of rebelliousness or disregard for authority that could prejudice a jury member or judge against you.
However, the courts don't always allow tattoos to be covered up. Whether or not your tattoos will end up being displayed to the jury can depend on a number of factors.
Did your tattoo lead to your arrest?
In a number of cases, distinctive tattoos have lead to the arrest of criminal suspects. An eyewitness who was there at the scene or the crime may be called into court to identify you. If part of that identification relies on the recognition of specific tattoos that you have on your face, neck, arms or elsewhere, you may be required to reveal them in court—at least long enough for the witness to testify.
Is the tattoo evidence of the crime itself?
Tattoos can also be used as evidence of a crime. For example, a man accused of a racially motivated hate-crime was heavily tattooed with swastikas and other racially-charged depictions that prosecutors alleged showed his motivation for the crime. His attorney unsuccessfully argued that forcing the defendant to show the tattoos in court was akin to making him testify against himself, a violation of his Fifth Amendment right against self-incrimination. The court ruled that the tattoos were physical descriptors, not statements, so they weren't protected.
In another case, the chest tattoo of a gang member was used as evidence of his participation in a robbery and homicide of a liquor store in 2004. The gang member had memorialized the event in a rather elaborate tattoo that even showed details of the crime.
Can your defense attorney do anything?
Your defense attorney may be able to keep your tattoo out of court if it isn't part of how you were identified by witnesses and isn't clearly connected to the crime of which you are accused. For example, in a 2015 case, defense attorneys were able to successfully argue that the bullet hole tattooed on a defendant's neck was not clearly related to the crime he was accused of committing. Prosecutors claimed it amounted to an admission that he shot a woman in the neck. His defense claimed that it was a tribute to his dead father, who died from a gunshot wound to the neck. The ambiguity of the design made it unclear, so the judge permitted it to be hidden from the jury's view.
Similarly, your attorney may argue that there's no relevance between your tattoo and your alleged crime. For example, teardrop tattoos have many meanings. While many of them are associated with prisons and crimes, someone could arguably have them simply as a way of showing sadness or grief related to a personal tragedy. If your attorney makes a successful argument, you'll be able to cover up the tattoos in court with a little makeup.
For more information on what to do about tattoos if you're about to go to court, talk to an attorney such as Michael B. McCord today.