United States District Court, D. Montana, Billings Division
ORDER COMPELLING DEFENDANT TO DISPLAY TATTOOS ON LEFT
ARM AND HANDS
P. WATTERS U.S. DISTRICT COURT JUDGE
Government moves the Court to compel the Defendant, Ryan
McGuire, to display tattoos on his left arm and hands to
witnesses and the jury for identification purposes. McGuire
Government charges McGuire with conspiracy to distribute
methamphetamine and distribution of methamphetamine. (Doc.
2.) A central element the Government must prove beyond a
reasonable doubt is McGuire's identification as a
participant in the alleged conspiracy and as one of the
individuals who distributed methamphetamine.
seeing McGuire the morning of trial, the Government alleged
he had substantially changed his appearance since the time of
his arrest. The Government therefore moves to compel McGuire
to display the tattoos on his left arm and hands to witnesses
and the jury for identification purposes. McGuire objects,
arguing unfair prejudice, unfair surprise, and a lack of
notice about the effect the display of his tattoos would have
on his Fifth Amendment rights.
underlying offense occurred in September 2016, over three
years ago. (Doc. 2.) Law enforcement arrested and booked
McGuire on January 13, 2019, in Carson City, Nevada. (Doc.
15.) On January 29, 2019, Judge Cavan arraigned McGuire and
released him on his own recognizance. (Doc. 27.) McGuire has
been under pretrial release supervision in Nevada since that
time. (Doc. 30.) When McGuire had his booking photograph
taken, he had a beard with a red hue, a buzz-cut hairstyle,
and he was not wearing glasses in one of the photographs.
(Government's Exhibit 23.) When McGuire had his
driver's license photograph taken in January 2018, his
hair was long and slicked back, he had a full beard, he was
not wearing glasses, and his hair and beard had a distinctly
red hue (Government's Exhibit 24). McGuire presently is
clean-shaven, his hair-length is somewhere between his
booking and driver's license photographs, his hair color
is dark-brown and no longer has a red hue, his hair is gelled
and combed to the side, and he is wearing glasses.
argues compelling him to display the tattoos on his left arm
and hands to witnesses and the jury is prejudicial. The Court
disagrees-the display of McGuire's tattoos is neither
unduly burdensome, prejudicial, nor violative of his Fifth
Amendment rights. So long as the Government lays the proper
foundation for the tattoos' relevance, the Court will
compel McGuire to display them.
objections to the compelled display of physical
characteristics lie on Fifth Amendment grounds and the right
against self-incrimination. However, the Fifth Amendment
protects from compelled disclosure only testimonial or
communicative evidence. Schmerber v. California, 384
U.S. 757, 760-65 (1966) (extraction of blood sample was
neither testimonial nor a communicative act implicating the
right against self-incrimination). The Fifth Amendment bars
only the compelled production of testimonial evidence, not
the compelled display of physical characteristics. See,
e.g., United States v. Dionisio, 410 U.S. 1 (1973)
("It has long been held that the compelled display of
identifiable physical characteristics infringes no interest
protected by the privilege against compulsory
self-incrimination."); Gilbert v. California,
388 U.S. 263, 266-67 (1967) (taking of handwriting or voice
samples not testimonial under the circumstances).
same rules apply to the publication or display of a
defendant's tattoos or other physical characteristics to
a jury. The question is, under the circumstances, whether a
defendant's display and publication of his tattoos is
testimonial in nature. United States v. Greer, 631
F.3d 608, 612 (2d Cir. 2011) (holding no Fifth Amendment
implication where a witness relied on a tattoo to identify a
defendant, however, the tattoo was testimonial where the
reliance was for the "content of what [was]
written"). "Federal courts ... have held that
photographing a defendant's tattoos for display to the
jury or requiring a defendant reveal his tattoos to a jury
does not run afoul of the Fifth Amendment." United
States v. Nixon, 2015 WL 4430176, *2 (E. D. Mich. July
20, 2015); see also United States v. Williams, 704
F.2d 315, 318-319 (6th Cir. 1983) (compelling a defendant to
produce live voice exemplars); United States v.
Murray, 523 F.2d 489, 492 (8th Cir. 1975) (requiring a
defendant to wear a wig before the jury).
United States v. Bay, 762 F.2d 1314 (9th Cir. 1984),
the defendant was the party who wished to display
his tattoos in order to raise doubts about a witness's
identification of him. The district court determined the
defendant could not display the tattoos without giving up his
Fifth Amendment rights. However, the Ninth Circuit reversed,
holding the tattoos were nontestimonial and did not raise
Fifth Amendment concerns. Id. at 1314-17. It
remanded the case for the district court to hear testimony
laying the foundation for displaying the tattoos.
Id. at 1317.
the Government wishes to have McGuire display his tattoos for
identification purposes. The Government states it is not
concerned with the content of the tattoos. See
Greer, 631 F.3d at 612. The Court finds McGuire's
appearance has changed considerably since his booking and
driver's license photographs were taken. Therefore,
McGuire's tattoos may be relevant to allow witnesses to
identify him. The display of his tattoos does not implicate
his Fifth Amendment rights. As long as the Government lays
the proper foundation for the tattoos, they will be admitted.
the display of McGuire's tattoos will not be unduly
burdensome. They are openly visible and are not, for example,
located on more intimate parts of his body. See United
States v. Toliver,387 Fed.Appx. 406, 418 (4th Cir.
2010) (holding tattoos on the defendant's face, neck,
hands, and forearms are ordinarily admissible, but ...