Academic journal article Journal of Criminal Law and Criminology

Hearts on Their Sleeves: Symbolic Displays of Emotion by Spectators in Criminal Trials

Academic journal article Journal of Criminal Law and Criminology

Hearts on Their Sleeves: Symbolic Displays of Emotion by Spectators in Criminal Trials

Article excerpt


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.


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. …

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