Editor’s Note: This article was written prior to Aaron Hernandez’s acquittal on double murder charges.
Tattoos tell a variety of stories. Some solemn, some empowering, and some that are completely inexplicable. However, regardless of the stories ones’ tattoos tell, something that tattoos have in common are the permanence on the wearers’ skin, and the ability to distinguish a persons’ physical characteristics in comparison to others. An interesting question arises in the legal context as to whether or not these unique markings can be used as an admission of participation or guilt in the commission of a crime.
Judge Jeffrey Locke found himself faced with answering this question in the high–profile alleged double murder of Daniel de Abreu and Safiro Furtado, and alleged witness intimidation of Alexander Bradley by former New England Patriots tight end Aaron Hernandez. The chilling facts of the alleged crimes stem from an altercation that occurred inside a Boston nightclub in 2012. The picture the prosecution painted is that on July 16, 2012, Hernandez was in a Boston nightclub on the South End of the city when he was bumped into by Abreu and Furtado, his drink was spilled, and the men exchanged looks at one another. Two hours later, as Abreu and Furtado were sitting at a red light, Hernandez pulled up beside the pair in a Toyota 4Runner SUV and opened fire, shooting five times into their BMW with a .38–caliber revolver killing them both. Months later, in an effort to silence Bradley, who had witnessed the murders and purchased the gun that was allegedly used by Hernandez, Hernandez shot Bradley in the face and left him to die in an industrial parking lot in Florida. Bradley ultimately survived and gave testimony about both incidents as the prosecution’s key witness.
“…attainment of the two tattoos was either an implied admission of guilt in committing the crimes, or a conscious act of memorializing the events…”
The prosecution became interested in two particular tattoos that Hernandez allegedly obtained after both incidents occurred. One tattoo depicts a six–shot revolver with five bullets in the cylinder and one empty chamber. The words “God Forgives” are tattooed backwards so that they are legible when viewed in a mirror. The second tattoo of interest depicts a semi–automatic handgun with one spent shell casing, and smoke emerging from the casing. Prosecutors contended that in the spring of 2013, Hernandez went to a tattoo shop in Hermosa, California and had these two tattoos done by artist David Nelson, about eight months after the alleged events took place. Their argument for admitting testimony and evidence regarding the tattoos to the jury was that Hernandez’s attainment of the two tattoos was either an implied admission of guilt in committing the crimes, or a conscious act of memorializing the events because of his presence there.
Hernandez’s attorney, Jose Baez, adamantly opposed the introduction of such testimony as “rank speculation” that provided little to no value in proving the fact that Hernandez played some part in both crimes. Baez opposed Nelson being used as a witness because he believed that testimony regarding the acquisition of these tattoos would unfairly prejudice the jury against Hernandez in the upcoming trial. In determining whether or not this type of evidence was admissible, Judge Locke had to evaluate the rules of Massachusetts state court evidence. The rules establish that although some evidence may be relevant, it still may be excluded if there is the potential for unfair prejudice that substantially outweighs the probative value the evidence will have for the jury.
“It appears that courts see tattoos as a physical feature that may be used to identify a defendant…”
What is interesting is that the usage of tattoos in trial proceedings is quite common across the country and has been used in Massachusetts state courts for quite some time. Cases such as United States v. Greer and Commonwealth v. Poggi provide analytical insight as to how the courts interpret tattoos in providing evidentiary value.
It appears that courts see tattoos as a physical feature that may be used to identify a defendant; however, these same tattoos can become testimonial in nature if they assert a communication in themselves that relate a factual assertion or disclose information. In Greer, the Second Circuit Court of Appeals addressed the evidentiary use of a tattoo in regards to whether or not the defendant’s right against self–incrimination was violated. Michael Greer had a tattoo that read “Tangela” which was being used to show he had a relationship with a person of that name. Greer had used the name Tangela Hudson to rent the vehicle that he was found in with a weapon and ammunition, as a convicted felon. The Second Circuit held that the testimonial nature of Greer’s tattoo was incriminating in nature; however, Greer failed to prove his Fifth Amendment rights were violated because to the communication had not been compelled by the government at the time of his arrest.
In Poggi, the Appeals Court of Massachusetts held that the prosecution’s objection to defendant Christopher Poggi’s proposed display of his tattoos to demonstrate he did not conform to witnesses’ description of an alleged robber, constituted reversible error in his trial. The Appeals Court reasoned that if Poggi’s display was testimonial in nature, then it was properly excluded, but if the display was demonstrative then it’s admissibility should have been considered. The court held that the display’s purpose was to reveal or examine some physical characteristic such as height, weight, or other physical feature, thus the display was demonstrative. The case came down to a question of identification and the court reasoned that the display of tattoos is something that is permitted routinely and is not viewed as testimonial, nor does it require an opportunity to cross–examine; therefore, Poggi should have been permitted to display his tattoos to refute the witnesses’ identification of him.
Judge Locke ruled that jurors could learn about the tattoos because of the “special meaning and significance” they potentially had to Hernandez. He also reasoned that “[t]he defendant’s conduct in ordering and obtaining these tattoos could be viewed as constituting an implied admission . . . or as evidence reflecting consciousness of guilt. As such, the probative value of the evidence is not outweighed by any risk of unfair prejudice . . . and therefore is admissible.” It does not appear whether or not Judge Locke analyzed the testimonial nature of Hernandez’s tattoos, which is something that may arise as an issue in future appellate matters if Hernandez is convicted.
“Ultimately, Judge Locke allowed Nelson’s testimony to be heard by jurors.”
Before Nelson’s testimony was heard by jurors, Baez requested to take Nelson on a voir dire examination to determine if his testimony should be admitted to assist the jury in their fact–finding duties. A voir dire examination is a series of questions asked outside the presence of the jury to determine the competence of an alleged expert witness ready to give testimony on a specific topic during the course of a trial. During the examination, Baez questioned answers that Nelson gave to a detective in 2014. In that interview, Nelson told detectives that he was unsure if he gave Hernandez the “God Forgives” tattoo. Baez also argued that Hernandez did not request a specific number of bullets, but just that one chamber be empty. Ultimately, Judge Locke allowed Nelson’s testimony to be heard by jurors.
As Nelson testified, he told jurors that Hernandez wanted “a front view of a pistol like it’s pointing at you” and “part of a revolver that holds bullets.” Hernandez also specified that he wanted “God Forgives” written backwards so that he could “view it in [a] mirror.” At the culmination of his testimony, Nelson established that he had worked on multiple pieces of artwork on Hernandez’s body that also included the shell casing with the wisp of smoke, the words “Blood. Sweat. Tears.” on Hernandez’s right hand, and another gun muzzle. The prosecution hammered home the fact that Nelson did not tattoo any part of Hernandez’s body without his consent and input as to what he wanted.
As Hernandez’s trial continues, it will be interesting to see how this testimony will affect the jury in deliberations and the final decision of Hernandez’s fate. If Hernandez is ultimately convicted of the charges against him, it is worth noting that he could potentially appeal the evidentiary ruling of the admissibility of his tattoos by arguing that theyare testimonial, and in violation of his right against self–incrimination pursuant to the Fifth Amendment. Hernandez is currently appealing his first murder conviction for the 2013 murder of Odin Lloyd for which he is serving a life sentence without the possibility of parole.