Appellate Court of Illinois Finds a Defendant Can Display His Hand Tattoos to the Jury While Pleading the Fifth

Assume that (1) the only evidence linking a defendant to an attempted murder consists of eyewitness identifications by the victim and his girlfriend; (2) neither eyewitness states that the attempted murder had tattoos; (3) the defendant has tattoos across the width of both hands; and (4) the defendant “pleads the Fifth” and chooses not to testify at trial. Should the defendant be allowed to show his hand tattoos to the jurors? That was the question of first impression addressed by the Appellate Court of Illinois in its recent opinion in People v. Gonzalez, 2018 WL 4699054 (Ill.App.1st Dist. 2018).

In Gonzalez, the facts were as stated above. According to the victim,

The [assailant] lifted up his shirt with his left hand, pulled a gun out of his waistband with his right hand, cocked it back with his left hand, and pointed it at the victim’s abdomen. Before the [assailant] fired, the victim placed his hands over his abdomen and was shot in his right hand three times. When the shooting started, the victim was six or seven feet away from the gun.

There is no indication that the assailant was wearing gloves, and, as noted, neither the victim nor his girlfriend said that the assailant had tattoos on his hands. When the defendant asked to show his hand tattoos to the jury at trial, however, the judge found that he could not do such a display and plead the Fifth.

After he was convicted, the defendant appealed, and the Appellate Court of Illinois granted him a new trial, concluding that

Courts of other jurisdictions which have dealt directly with the issue of a defendant’s request to display some physical characteristics without testifying have allowed such displays on the basis of due process. These courts have held that to permit the State the right to require a defendant to display some physical characteristic without allowing a defendant the same right to display a physical characteristic would violate that defendant’s right to due process. See State v. Martin, 519 So.2d 87, 90-93 (1988)  (since defendant could have been compelled by the State to demonstrate any tattoos he had on his body, without violating his privilege against self-incrimination, as display would not be testimonial, defendant was entitled to show his tattoos or lack of them at trial where such display was material, without any cross-examination as to tattoo’s origin); U.S. v. Bay, 762 F.2d 1314, 1315-17 (1984) (holding that it was error to refuse bank robbery defendant, who did not take the stand, to exhibit to the jury the tattoos on the backs of his hands, where on cross-examination, the teller at the bank testified that she did not remember anything unusual about defendant’s hands except that he had long fingers; the hand display would be relevant to other robbery counts where other tellers saw defendant do things with his hands and handed him money and, when asked what they remembered about the perpetrator’s appearance, specifically including his hands, they did not mention any tattoos on the perpetrator’s hands). Based upon all of the above, we find that a defendant’s right to display a physical characteristic should not be conditioned upon a defendant’s relinquishment of his Fifth Amendment right not to testify.

I agree with the court’s conclusion. The Fifth Amendment only covers communicative/testimonial acts, i.e., acts that force a defendant to disclose the contents of his mind. This is why a defendant can’t plead the Fifth when he is asked to appear in a lineup, complete a handwriting exemplar, etc. This same reasoning explains why a defendant can display his hand tattoos to a jury without exposing himself to cross-examination.

-CM