Last week jurors in the trial of Steven Hayes were released early after viewing photos of the crime scene. News accounts indicated that the pictures were so difficult to view that one juror even cried. Nothing is more difficult for the defense nor more impactful for the state than graphic photographic evidence of the results of a crime.
Defense lawyers will seek to exclude or at least limit the offer of such evidence. In most instances an attorney will ask the judge prior to the presentation of the pictures to disallow their admission. Connecticut has a procedure referred to as a Motion in Limine used to present such objections. The Motion is heard in advance of the actual display of the photos. The trial attorney will set forth the legal and factual bases for the objection. Experienced trial advocates will also accompany the Motion with a trial brief explaining their legal arguments.
The central objection made to graphic crime scene evidence is that it will inflame the passions of the jury. The trial judge is then required to balance the probative value of the offer against the potential prejudice it creates. “Probative value” is a legal term of art that describes the relevance and necessity of certain evidence. In the first instance, the judge must determine if the evidence is relevant to the charges on trial. Connecticut’s Code of Evidence defines “relevant evidence” as, “. . . evidence having any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence.”
All graphic evidence is, per se, prejudicial. It is intended to dramatically paint the scene. It often evokes strong emotions. In cases where the defendant’s guilt is readily established graphic crime photos will often seal the verdict for the state. Once the court determines the extent of any prejudice, it must then engage in a balancing test. It is not the mere fact that such evidence creates a prejudice against the defendant, but rather, whether the “probative value” out weighs the prejudice inherent in the offer of proof.
Judges will almost always admit crime scene photos. Prosecutors will seek the admission of multiple pictures and at some point a judge may determine that enough is enough and exclude the additional pictures as cumulative evidence.
One of the more difficult aspects of preparing to defend a homicide case is the how to deal with such damaging evidence. Several years ago we were retained to defend a capital murder case involving the alleged beating death of a thirteen month old child by the mother’s paramour. The autopsy pictures were extremely disturbing. Our client maintained his innocence and claimed that the child’s mother had been the one who injured the baby. The issue for us was whether the jurors would be so inflamed by the graphic photos that they would be unable to listen objectively to the defense once the photos were introduced.
To deal with this question we retained a jury consultant who arranged for a mock jury trial. We presented the case in summary fashion to our panel of “jurors” in particular displaying the pictures. The consultant acted as a facilitator and led a panel discussion among our “jurors.” We were surprised to learn that although the photos had some impact the jurors were prepared for grisly pictures once they learned that the case involved an allegation that a baby was beaten. The longer the pictures were displayed the more numbing they became and the jurors were able to get beyond the emotion of the viewing to a calm deliberation of the evidence that was presented.
Rich Meehan is a senior partner in the law firm of Meehan, Meehan & Gavin, LLP, Bridgeport, Conn. For more information on Rich or his firm go to www.meehanlaw.com or www.ctdentalmalpracticelawyer.com, or e-mail Rich at firstname.lastname@example.org