A criminal defendant convicted of murder did not have his First Amendment rights violated when his no-snitching tattoo was introduced into evidence during his trial, a Texas state appeals court has ruled. Instead, the Texas Court of Appeals for the Eleventh District reasoned in Martin v. State that tattoos, however expressive they may be, can be used to establish the elements of a crime or motive without violating free-expression rights.
The case involved Richard Joseph Martin, a member of the Rolling 60s Crips gang, who shot fellow gang member D’Quay Harris. Martin believed that Harris and another member of the gang, Ervin Terry, had robbed him and his stepdaughter. Martin shot Harris multiple times. Initially, Harris was paralyzed but later died after a urinary tract infection developed into sepsis.
During Martin’s murder trial, the prosecutor introduced into evidence Martin’s tattoo, which featured a bent stop sign at Seminole Street and a rat with its mouth taped shut hanging from the stop sign. The shooting of D’Quay Harris took place at the intersection of Seminole Street.
Prosecutors asserted that Martin’s tattoo was highly relevant and a memorial of the shooting. On appeal, Martin argued that the introduction of the tattoo was highly prejudicial, violated his Fifth Amendment protections against self-incrimination and his First Amendment right to freedom of speech.
The appeals court reasoned that the tattoo was highly relevant evidence “because its details depicted many of the circumstances of the shooting.” In fact, the appeals court viewed the tattoo as a “confession.” The court reasoned that this relevancy outweighed any possible prejudicial impact of the tattoo.
Regarding the self-incrimination claim, the appeals court wrote that the tattoo is a personal characteristic, akin to the color of one’s hair or eyes. As such, the court wrote this does not trigger the freedom against self-incrimination.
Then, the appeals court addressed Martin’s free-expression claim. Martin had contended that the tattoo represented his cultural beliefs and opinions about a “no-snitch culture.” The appeals court recognized that tattoos can constitute protected speech but reasoned that the First Amendment does not prohibit the evidentiary use of speech to establish the elements of a crime or motive. “Such evidence may be admissible if it is shown to be relevant to the issues involved in the case,” the appeals court wrote. The court reasoned that because the tattoo was so relevant to the actual crime, its introduction did not violate the First Amendment.
The decision comports with many others in the area. While courts increasingly recognize that tattoos are a form of pure speech, courts allow them to be introduced into evidence in criminal trials, particularly when they appear to be connected to the actual crimes committed.
David L. Hudson Jr., a visiting associate professor of Legal Practice at Belmont University College of Law, is a First Amendment attorney and author who has written, co-written, or co-edited more than 40 books, including “The First Amendment: Freedom of Speech” (Thomson Reuters, 2012) and “Documents Decoded: Freedom of Speech” (ABC-CLIO, 2017).