Teachers' Manual to Green, Nesson & Murray, Problems, Cases and Materials on Evidence, 3rd Edition.

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D. Prejudice and Probative Value (50)

Problem - A Picture is Worth a Thousand Words (51)

This problem is also the subject matter of an Evidence Film - People v. Lopinson. Use of the film is highly recommended. The following discussion assumes that you and your students have seen the film that presents this problem. This is a particularly useful film because the class discussion is then aided by the impact that seeing the gory photos had on the students.

The points:

(1) Prejudice is not just something that turns the stomach; it is a legal concept with legal content. The question to be answered when evidence is challenged as "prejudicial" is: Will it affect the ability of the factfinder to follow the judge's instructions on the law?

(2) Emotion has an appropriate role in the trial of a case as long as it propels the jury towards the issues in a case rather than to issues not properly considered by the jury.

Answer and Analysis:

The pictures of the bodies of Joseph Molito and Judith Lopinson are truly obscene. But are they prejudicial? Does seeing the pictures render the viewer less able to decide whether Jack Lopinson hired the gunman or does it simply impress upon the viewer the fact that this is not a television drama: real people really were killed? Our experience is that students' overwhelming reaction is to think that the admission of the photos is prejudicial, but when pressed, to admit that they would not be swayed; their fear is a paternalistic one, that others will be swayed.

Further discussion:

Why did the judge leave it up to the prosecutor to decide whether or not to accept the defendant's stipulation? A defendant in a civil case can limit the issues in controversy (this is the effect of a stipulation) by admitting allegations of the complaint. An example of this principle is Fuentes v. Tucker. 31 Cal. 2d 1, 187 P.2d 752 (1947), in which the court held that it was error to allow the plaintiff to introduce evidence of the defendant's intoxication and the circumstances of an accident when liability was clearly conceded. The basis for the court's holding was that when an issue is entirely removed by the pleadings, evidence on it is not merely cumulative, "it is completely irrelevant and there is no room for the exercise of discretion." 187 P.2d at 756. This rule cannot be automatically applied even in a civil case, however. In Krouse v. Graham, 19 Cal. 3d 59, 137 Cal. Rptr. 863, 562 P.2d 1022 (1977), the plaintiff sued for injuries received in a rear-end automobile accident. Defendant admitted liability. Plaintiff called an eyewitness who described how the accident happened and also offered a photograph of the accident scene, properly authenticated by the eyewitness. Defendant's objection on ground of irrelevancy (because the issue of liability was not disputed) was overruled, notwithstanding the F es rule. The theory of admission was that the photograph was independently relevant on the issue of the seriousness of plaintiffs injuries. It tended to show the force, degree and nature of the injury-causing impact and thus was admissible on the disputed issue of damages.

The Krouse case may be used to point out the doctrine of limited admissibility and the use of limiting instructions (FRE 105). It may also be used to point out that Rule 401 does not limit the relevant issue to facts in dispute, as does Cal. Evid. Code 210, for example. As the Advisory Committee Notes to rule 401 point out, however, exclusion of evidence under Rule 403 may be based on grounds that the evidence is cumulative.

In contrast, a criminal defendant is given the option of only a few very inarticulate responses to his indictment: guilty (which admits everything); not guilty (which denies everything); and not guilty by reason of insanity. The forced inarticulateness of the "not guilty" plea typically leaves the prosecution at liberty to prove each element of the charged offenses, the manner of proof being largely left up to the prosecutor's choice. The reason for this is to allow the prosecutor to present the prosecution's side of the case with moral and emotional force. An extreme example of this is People v. Morrison, 67 Cal. App. 3d 425, 136 Cal. Rptr. 650 (1977), in which defendant was charged with being a felon in possession of a firearm. The information alleged a forgery as the prior felony. Defendant offered to stipulate to the forgery conviction and moved to preclude the prosecution from proving it before the jury as part of its case in chief. Despite Cal. Evid. Code 210, the court held that defendant could not preclude the prosecution from introducing evidence of the conviction before the jury notwithstanding his offer to stipulate to the forgery conviction. (It is possible that Morrison would come out differently under FRE 403, especially given the Advisory Committee's Note indicating that the judge may consider the availability of other proof in making a Rule 403 determination.)

On the other hand, see Old Chief v. United States, 117 S. Ct. 644 (1997) (54), where the United States Supreme Court held that under certain circumstances the prosecution may not decline a stipulation in lieu of evidence with high prejudicial impact.

In the Lopinson case, Sprague, the prosecutor, has worked out a very careful technique for using the slides, putting on the record the screen size, the lighting conditions, and the length of time the jurors are exposed to the slides. All of this is designed to insulate his showing of the slides from attack on appeal. In fact, the question of the admissibility of the photos in Lopinson was not considered substantial enough by Lopinson's appellate counsel even to be included as an issue on appeal. See Lopinson v. Commonwealth, 427 Pa. 284, 234 A.2d 552 (1967), cert. denied, 411 U.S. 986 (1973).

What foundation was laid for the introduction of the photographs? In the film, the lawyers and judge do a pretty minimal job of it. Dr. Aronson testifies that the pictures are a fair and accurate representation of the condition of Dante's as he saw it on the night of the crime and that the pictures would aid him in his testimony. These two bases for allowing the jury to see the pictures can be highlighted by asking students whether photos of the scene taken by an unmanned security camera could have been used, and if so, what foundation would have been required.

This film is also very useful as a point of departure for discussing how a record is made, how an offer of proof is made, how an objection is made, what occurs at a side-bar conference, how a judge announces his ruling on evidence, and the formality of cleansing instructions.

Some additional questions based on the abortion/manslaughter case, Commonwealth v Edelin, 371 Mass. 497, 359 N.E.2d 4, (1976):

In one of the celebrated cases of the 70's Dr. Kenneth Edelin was prosecuted for manslaughter for performing an abortion. The case arose shortly after Roe v. Wade in which the Supreme Court declared virtually all existing abortion statutes unconstitutional. That decision allowed states to pass constitutional antiabortion laws restricting abortions in the second and third trimesters of pregnancy. In the time after Roe v. Wade and before the states got around to passing such laws, there was apparently no law against abortions. Newman Flanagan, a Boston prosecutor, had the idea of applying the standard manslaughter law to abortion. His theory was that manslaughter is the unjustified killing of another human being, and a fetus is a human being.

The main legal issue in the Edelin case thus became: when does the product of conception become a human being for purposes of the application of the manslaughter law? The trial judge decided that the moment occurs at the instant at which a fetus first breathes outside its mother. Flanagan was embarrassed by this ruling because most of his evidence against Dr. Edelin indicated that the fetus died during the abortion procedure while still in the womb of the mother. There was, however, just enough evidence that the fetus had breathed outside the mother to get the case to jury. (See Problems VIII-8 (834) and the Evidence film, "Edelin, 11th Day").

With this background, consider the following issue of "prejudice." The prosecution wanted to introduce a photograph of the fetus. The photo was an 8" x 10" glossy black and white picture taken by the medical examiner. The fetus was in no way grotesque. The photo showed the fetus to be well formed and well developed. The photo could not, of course, show whether the fetus had breathed outside its mother, but the prosecution did not offer it on that issue. Rather, the prosecution wanted to use the photo to show the jury that indeed there was a fetus, and to identify the fetus as the victim of Dr. Edelin's purported manslaughter. Dr. Edelin did not contest these facts, only the legal conclusions the prosecutor sought to draw from them. The defense objected to the introduction of the photo on grounds of prejudice. Should it have been admitted or excluded?

This problem contrasts nicely with Lopinson. In Lopinson the photos are gruesome but not necessarily prejudicial (though some will certainly argue on this). The argument that the Lopinson photos are not prejudicial is that "prejudice" does not mean disgusting, but rather having some clear tendency to lead jurors away from their duty to weigh the facts in light of the judge's charge on the law. In Lopinson, the photos (at least arguably) had no such tendency. In Edelin, by contrast, the judge's charge will assert that the jurors must determine that the fetus breathed outside its mother as a predicate to being a human being. As hard as that concept is to swallow, it is made much harder by a photo to which the natural reaction is, "That is a little baby." The photo, in other words, will have a tendency to lead the jurors to ignore the judge's instructions about what it takes to be a human being and to substitute their own judgment that the photo showed a baby human being, whether it breathed outside its mother or not.

The following is an example of a closing argument which can be used to show to students the proposition that the function of the concept of prejudice is not to eliminate the effects of emotion but rather to sort illegitimate from legitimate uses of emotion. This is taken from Appleman, Successful Jury Trials 449-451 (1952), but is modified to update the various elements of damage and to ameliorate the sexism in the original. It can be read to students in class by the teacher.

I come before you on behalf of a little child -- one whom the law says cannot be charged with wrongdoing. She cannot know what we do here today; at her age, she cannot realize its significance. Yet in your hands, this day, rests her entire future. She will never have another day in court, another opportunity to appear before a different jury.

All that little Betty knows is that a few short months ago she was running and playing with her playmates, happy and without a care. It is well she did -- she will never run again. This she cannot understand, for it was no fault of hers that brought this about. the law holds children of her age blameless for acts of their own. The law holds her guiltless of any neglect of the driver of the car in which she was riding. The defendant, under the law, was guilty of the most culpable negligence which caused this tragedy-- a violation of our state statutes. A moment's haste, a glance at a stop sign, a failure to stop, a lifetime of tragedy. But we are not here to blame the defendant for that which cannot be undone, nor to condemn him for his guilt. We are here to measure the extent of little Betty's damages.

All that this child knows is that she was in an automobile; something happened. She woke up in a hospital in pain, pain that has gradually become numbness or, as we know it, a paralysis. Perhaps she doesn't know it now, but you know and we all know that the child who ran once will never run again, she will hear the laughter of her playmates skipping rope, walking to school, going upon hikes with friends, playing games at birthday parties, but Betty -- she will be lying in bed wondering why -- why all her playmates have forgotten her, why all play has stopped for her.

Her playmates will grow larger, stronger, more confident -- pass through the wonderful transformation of adolescence. They will go to football games and dances, they will meet young men and fall in love, the most wonderful experience in mankind. They will know the experience of marriage, sometimes thrilling, sometimes excruciating, but vital, vibrant, alive. They will know the constant companionship of those in love, the thrill of parenthood and the joys that come from the first tooth, the first appearance in a school play. The love, the affection, the joys and griefs shared in common with someone you love. But Betty? While others grow strong, she will remain weak; useless legs will remain small and will wither from lack of use. The sturdy little legs she now possesses will become misshapen and bony.

Instead of loving companionship, she will know the care of hired nurses -- those who must look after her because she cannot control and never can control even her bladder and her bowels. Those who look after her because they are paid to do so, when her own grieving parents have gone.

Yes, except for that day of May the second, Betty might have pursued a career. As a school teacher, a nurse, a doctor or lawyer, she probably would have earned two thousand dollars a month. With her life expectancy of forty years after reaching adulthood, then, she would probably have earned in her lifetime between $800,000 and $1,200,000. Defense counsel will say: You can't measure a loss like this in money. No, we can't measure some things in money, at all. But if we take an average of her earnings -then she would have earned a million dollars for her well being, which earnings are now forever lost. Instead, there will be the constant expense of nursing care. You have heard the evidence as to current nursing rates, and these, over the next fifty years, can easily exceed another $500,000. Defense counsel in preliminary examination wisely talked at length about not permitting your sympathies to influence the size of the verdict, because he wanted you to forget that Betty's actual financial loss, combining lost earnings and nursing expense, will be more than $1,500,000.

But, ladies and gentlemen of the jury, is there to be no compensation beyond that for Betty's lost childhood, for the lost play, the joys and memories stored in the hearts of children? Is there to be no compensation to her for the anguish of an invalid's life, of useless limbs, of beauty turned to horror? For the lost love she will never know, the children she will never hold? For taking all the light from life and turning it into a place of darkness?

All that we can give Betty now is an opportunity to forget, to learn new things, perhaps to travel, with the aid of nurses, and to see new places, new things which may remove her thoughts from things of sadness. But such things are expensive, more than the mere $1,000 a month or so we figured for nursing care, and the $2,000 per month she would have earned for her own support. She must at least be given the opportunity to gain some of the happiness in life that this girl, who used to laugh, might have known. We cannot sentence her to life in a garret, nor to a life of brooding over that which might have been. We can, at least, upon this one day when she appears to receive Justice at our hands, make it possible to relieve the anxieties of financial care, to create a fund which will permit her to be taken from place to place, to learn new interests, so that her own lost children do not haunt her. To at least let our own feeling for her brighten the grim future of her life. We cannot make little Betty run again, or play, but we can do the best for her which the law gives us the power to do. And no one with any heart can do any less for an innocent child.

United States v. Yahweh Ben Yahweh 792 F. Supp. 104 (S.D. Fla. 1992)(51)

Lest any students doubt the admissibility of violent disgusting photographs after the Lopinson discussion, this case should put those doubts to rest.

Old Chief v. United States, 117 S. Ct. 644 (1997) (54)

In this case a majority of the United States Supreme Court held that in a prosecution for unlawful possession of a firearm by a felon, evidence of the precise nature of the crime by which the defendant became a felon was so unfairly prejudicial that it was error for the trial court to refuse to accept a stipulation of the defendant's status as a felon and then to admit the evidence of the prior crime. The decision discusses the countervailing policies in favor of permitting the prosecution enough proof to prove its case, on the one hand, and in favor of a criminal prosecution uninfluenced by possibly pungent evidence of a crime relevant only to establish the status of felony. The court gives emphasis to the fact that the statutory elements of the crime on trial, being a felon in possession of a firearm, did not specify beyond status as a person earlier convicted of a felony. Thus any information about the prior crime beyond the fact that it was a felony would be immaterial and gratuitous. Where the defendant has proferred the government the entire legitimate content of the proof of the prior conviction in the form of a stipulation, the government's desire to prove the legally immaterial nature of the felony just to make it more "real" is not sufficient to overcome the prejudice suffered by the defendant from being branded as a violent criminal.

Cases such as Old Chief should not be read far beyond their specific facts. Certainly one cannot state that Old Chief has seriously altered the law as set forth in cases such as U.S. v. Grassi, 602 F.2d 1192 (5th Cir. 1979) which was contained in the Second Edition, but has been omitted in this one. Ordinarily, when it comes to proving the elements of the crime, the prosecution will be given much leeway.

Problem - Photos of the Decedent (68)

(Evansville School Cor. v Price, 208 N.E.2d 689 (Ind. 1965))

The point:

Evidence does not have to be gruesome or disgusting to be prejudicial.

Answer and Analysis:

It is hard to see how the photograph is relevant to the issue of liability, but what about damages? Could the photograph be relevant to the boy's possible earning capacity had he not been killed? It does show the approximate age of the boy, but the problem with admitting the photograph on the issue of damages is that it is a picture of an embalmed boy, not one of a live boy. An objection based on changed circumstances should be sustained. The court in fact held that it was error to admit this photograph since the only thing it could be relevant to was the fact of death, which was admitted by the pleadings. What about a photograph of the boy while he was alive, or testimony of a witness about the kind of boy the deceased was? Such evidence would probably be admissible on the issue of damages. But the only purpose for which a photo of the embalmed boy could be offered would be to elicit sympathy for the plaintiff and to encourage a verdict on this basis, which is impermissible.

Further discussion:

Professor Chadboum had a list of particularly gruesome objects which parties wanted to show the jury. He used to like to ask students whether they would allow any of the items to be shown to the jury, and he would proceed through the list in ascending order of revulsion. His list, with some additions of our own, follows:

1. a pickled kneecap, used by a surgeon to demonstrate the nature of plaintiffs injury and why it was removed (held admissible even though Xray pictures and testimony could describe the same facts);

2. an eye in a jar (held inadmissible because its loss in an auto accident was conceded; proof in species adds nothing over concession);

3. a photograph of bums (held admissible even though somewhat cumulative of testimony);

4. a photograph of a bloody, slit throat (held admissible even though there was testimony describing the appearance of the wound);

5. three fingers, a tooth, bloodstained car seat covers and a picture of the body with maggots crawling over it (held not to amount to reversible error in People v. Cavanaugh, 44 Cal. 2d 252, 282 P.2d 53 (1955), over the vigorous dissent of Chief Justice Traynor);

6. a sample of powerfully odorous necrotic tissue, admissible in a negligence suit against a doctor for making a cast so tight that the plaintiff developed gangrene, to show the stench that plaintiff smelled resulting from the gangrene.

A particularly gruesome problem which Professor Chadbourn delighted in giving in class is what we call:

Don't Lose Your Head Over the Corpus Delecti

Charge: murder in the first degree, alleged to have been committed on or about May 3, 1963. The prosecution offers the following evidence: White testifies that on May 1, 1963, he saw the defendant and Clayborn Showers together in Showers' Chevrolet in Montecello, Iowa. Wills testified that on May 1, 1963, the defendant and Showers traded Showers' Chevrolet for a used Ford at his car lot outside of Montecello, Iowa. Weise testifies that on May 3, 1963, he saw the defendant driving a used Ford that matches the description of the Ford purchased from Wills and that the defendant was the sole occupant of the car. T he Montecello Sheriff testifies that on May 4, 1963, the nude body of a male was found in a wooded area outside of Montecello, but that the body was unidentifiable because the head had been severed.

At the defendant's trial in 1966, he pleads the alibi of the alleged deceased, i.e., that the supposed deceased is still alive. The defense offers Wilcox, who testified that Showers was at his house in Davenport, Iowa in 1964. The defense also offers Weatherspoon, who testifies that he saw Showers on a battlefield in Vietnam in 1965, although he knew Showers by another name.

In rebuttal, the prosecution offers into evidence a severed human head preserved in alcohol, the testimony of a medical doctor that the head is that of a deceased person found in May, 1963 near Montecello, Iowa, and the testimony of two additional witnesses that they were friends of Showers and that they recognize the preserved head to be that of Showers.

Is the prosecution's rebuttal evidence relevant? Is it admissible? What factors should the court consider in making this judgment?

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