Hearts on their sleeves: symbolic displays of emotion by spectators in criminal trials.

• Author: Lind, Meghan E.
• Position: Symposium on Redefining International Criminal Law

1. INTRODUCTION

   The pursuit of justice within the American legal system hinges on impartiality, fairness, and evenhandedness. (1) These idealistic concepts are especially imperative in the sphere of criminal law, where the life of the criminally accused may be literally or fundamentally at stake. (2) The Supreme Court captured the deep-seated necessity for fairness in criminal trials in Gideon v. Wainwright: "From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law." (3) As the Supreme Court explains, the crucial notion of fairness in the courtroom is grounded in formal laws. (4) The Sixth Amendment to the United States Constitution guarantees criminally-accused defendants the right to a speedy and public trial by an impartial jury. (5) Additionally, the Federal Rules of Evidence aim to ensure fairness and justice in courtroom proceedings. (6)

   Despite its optimistic laws and goals, the American criminal justice system is inevitably imperfect because it depends on humans--who are inherently flawed. (7) As a result, it is not implausible for a guilty criminal to be acquitted, nor is it unimaginable for an innocent defendant to be mistakenly put behind bars. (8) Jurors are especially susceptible to external factors, such as compassion, sympathy, and empathy, which can greatly influence their verdicts. (9) Indeed, these peripheral factors can influence the decision of the jury "as much as, if not more than, the factual merits of a case." (10) Judges and attorneys, then, have a crucial responsibility to guarantee fair trials by protecting the jury from immaterial influences. (11)

   Nevertheless, outside factors can still influence a jury. (12) Trial spectators within the courtroom, especially those who sit in plain view of jurors and in close proximity to the jury's box, can intentionally or unintentionally affect the jury. (13) Justice Holmes once observed that "[a]ny judge who has sat with juries knows that, in spite of forms, they are extremely likely to be impregnated by the environing atmosphere." (14) In recent years, trial spectators have threatened to "impregnate" the minds of jurors by wearing expressive clothing to court. (15) Specifically, it is a growing trend for spectators to publicly express their emotion by wearing buttons depicting the victim, armbands, and color-coded ribbons to trial. (16)

   This Comment examines how symbolic clothing affects a criminal defendant's constitutional rights. It balances free speech and victims' rights considerations against concerns of prejudicial influence. This Comment concludes by proposing a comprehensive ban on expressive clothing in all courtrooms.

   After a brief background, Part III(A) concentrates on the compelling justifications for an outright ban: Section One analyzes the issue from a psychological perspective; Section Two details the inherent prejudice in symbolic items in the courtroom; Section Three shows how a defendant's presumption of innocence is undercut by public displays of emotion; Section Four focuses on the Sixth Amendment; and Section Five addresses due process issues. Part III(B) of this Comment analyzes the arguments that expressive clothing does not impede upon the judicial process: Section One addresses the rights of victims; Section Two tackles unavoidable emotion within the courtroom; Section Three discusses First Amendment concerns; and Section Four deals with the practical issues of a ban on expressive clothing.

2. BACKGROUND

   Over the past twenty years, appellate courts across the country have reexamined criminal convictions because spectators wore symbolic displays of emotion during the trial. (17) These cases involve a wide variety of expressive apparel, ranging from ribbons to colored armbands to corsages to matching uniforms to t-shirts. (18) Each court handled the situation differently. Some held that expressive clothing infringes on a defendant's right to a fair trial because it erodes the defendant's right to be presumed innocent and creates an unacceptable risk that the courtroom showing of support will unduly influence the jury. (19) Other courts held that any prejudice presented by a spectator's display can be cured by appropriate instructions from the judge to the jury. (20)

   The United States Supreme Court has addressed whether courtroom conditions infringe upon a defendant's right to a fair trial in two cases: Estelle v. Williams (21) and Holbrook v. Flynn. (22) In Estelle, the defendant was compelled to wear identifiable prison garb to his jury trial. (23) The defendant specifically asked to wear his civilian clothes during his trial, but his request was denied. (24) Ultimately, he wore prison-issued clothing and was convicted of murder. (25) The Court determined that when a defendant is compelled to wear a prison uniform to trial, "the constant reminder of the accused's condition implicit in such distinctive, identifiable attire may affect a juror's judgment." (26) The opinion explained that when a courtroom situation is challenged as prejudicial, the court must determine whether "an unacceptable risk is presented of impermissible factors coming into play." (27)

   In Holbrook v. Flynn, the front row of the spectators' section was filled with customary courtroom security plus four additional uniformed state troopers. (28) Defense counsel argued that the strong presence of the uniformed state troopers influenced the jury by implying that the defendants were of "bad character." (29) The Supreme Court disagreed and held that the jury could reasonably draw a wide range of inferences from the officers; therefore, the presence of the officers was not inherently prejudicial. (30) The Court distinguished the situation from that in Estelle by arguing that unlike forcing a defendant to wear prison garb, placing security guards in a courtroom serves a legitimate state purpose. (31)

   On October 11, 2006, the Supreme Court heard oral arguments on the constitutionality of one specific type of non-verbal expression at issue in this Comment: pictorial buttons. (32) In that case, family members of a murder victim wore buttons depicting a photograph of the victim to court. (33) The family sat in the front row of the gallery, and on each day of the trial at least three members of the family wore the buttons. (34) The buttons were several inches in diameter and, according to the defendant, "very noticeable." (35)

   On December 11, 2006, the Court issued an opinion noting that "the effect on a defendant's fair-trial rights of the spectator conduct to which [the defendant] objects is an open question in our jurisprudence." (36) The Supreme Court specifically acknowledged that separate courts have handled the issue in different ways. (37) Still, the Court chose not to rule on whether spectator buttons are unconstitutional. (38) The majority did not expressly comment on why it sidestepped the opportunity to make a rule, but Justice Kennedy's concurrence explained that a rule against buttons in the courtroom "should be explored in the court system, and then established in [the Supreme] Court." (39)

   This Comment picks up where the Supreme Court left off in Musladin and argues that the legal conception of symbolic speech within the courtroom should include all forms of non-verbal expression. The Comment looks at the overall effect of all types of symbolic spectator conduct including the aforementioned use of ribbons, armbands, and clothing, as well as other forms of expression that may be used in the future.

3. DISCUSSION

   There are five chief reasons to forbid expressive clothing and accessories in all courtrooms. Expressive items (i) psychologically affect juries; (ii) are inherently prejudicial; (40) (iii) undercut the presumption of innocence; (41) (iv) violate the Sixth Amendment; (42) and (v) infringe upon a defendant's right to due process. (43) This Comment will address each of these arguments and then respond to the four primary arguments that symbolic clothing should be permitted, namely: (i) victims have a special place in the courtroom; (44) (ii) other displays of emotion are permitted; (45) (iii) the First Amendment authorizes spectators to express themselves; and (iv) the practicality of regulating spectators' clothing makes an outright ban unworkable.

   1. COMPELLING JUSTIFICATIONS FOR AN OUTRIGHT BAN

1. A Psychological Perspective

   Symbolic clothing and accessories are inherently prejudicial and thus hinder the possibility of a fair trial. (46) The underlying principle that supports each of the following arguments for banning symbolic clothing is the reality that juries are psychologically susceptible to influences within the courtroom. (47) Sociological studies of jurors and juries confirm that they make decisions based on emotional factors. (48) For example, one applied research psychologist argues that "jurors reach their verdict decisions with their right brains, then endorse these decisions with their left brains (i.e., jurors utilize emotions to decide the case, then shuffle through the evidence to authenticate their emotional reactions on an intellectual basis)." (49) Since jurors rely on emotions in their decision-making process, it follows that they are especially receptive to emotional factors. The juxtaposition of courtroom displays of emotion with emotionally-influenced jurors creates a severe risk that verdicts will be rendered on sentiments rather than facts.

   In order to fully understand the extent to which emotions play a role in a jury's verdict, it is useful to examine the psychological basis for the idea. There are essentially three reasons that emotions, particularly sympathy, affect jurors' abilities to reach decisions. (50) First, sympathy informs jurors that someone else is "suffering significantly and undeservedly." (51)...