St. Mary's Law Journal


David L. Wiley


This Comment considers physical appearance discrimination by jurors in criminal trials. It proposes remedial measures to eliminate discrimination and effectuate the underlying purposes of jury trials. Part II of this Comment examines the psychological process of corporeal attribution and discusses the underlying philosophic dichotomy of image and substance. It surveys the role modern American culture plays in discrimination in the American criminal law system and discusses parallel relationships between race, sex, and physical appearance discrimination. Part IV explores constitutional ramifications of fostering and promoting physical appearance discrimination in criminal trials. Finally, Part V presents remedies designed to ensure criminal defendants are judged based on their alleged actions rather than physical appearance.

Recent research in social psychology confirms jurors are not impartial, they make substantive value judgments based on physical appearance. Although these “gut reactions” to appearance are not wholly inaccurate, they are too arbitrarily conceived to serve as a basis for imprisoning and executing defendants. Juries discriminating based on physical appearance is repugnant to several specific constitutional guarantees and indefensible as a means of enforcing the law. The founding premise of the United States Constitution’s Bill of Rights is to ensure liberty against capricious seizure. Nowhere is the realization of this principle more desperately needed than in the context of society’s decision to imprison or execute another human being. Therefore, our judicial system must reform to prosecute persons based on what they did, rather than what they look like. The judicial system can accomplish this reformation by excluding any evidence of the defendant’s physical appearance from the courtroom, or through the use of proxy defendants. Regardless of the method, the law should act swiftly to ensure defendants are neither imprisoned nor executed based on their physical appearance.


St. Mary's University School of Law