Tattoos Can Be Testimonial Communications Under the Fifth Amendment

In United States v. Greer, 09-4362-cr, decided February 4, 2011, the Second Circuit held that evidence about a tattoo on Greer’s arm was “testimonial” because it was introduced at trial to show that Greer had a relationship with a person and not just for purposes of identification.

Greer was arrested after police found ammunition in a car they believed Greer had been driving. The car contained documents with Greer’s name on them but had been rented by someone named Tangela. At the time of his arrest, police noted that Greer had the name Tangela tattooed on his arm. At trial, the government had the arresting officer describe Greer’s appearance at the time of arrest – including what Greer’s tattoos said.

Because the government relied on the content of the tattoo to prove a fact, the evidence was “testimonial.” Further because the evidence linked the defendant to the automobile (and the ammunition that was inside of it), it was also incriminating. Thus, its introduction implicated Greer’s Fifth Amendment right against self incrimination.

However, because the tattoo was not compelled by the government, there was no Fifth Amendment violation.