LOUISIANA PUBLIC DEFENDER BOARD

 

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IN THE FIFTIETH JUDICIAL DISTRICT, PARISH OF PEINE DE MORT
STATE OF LOUISIANA
No. _____

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STATE OF LOUISIANA, Plaintiff
v.
JOHN CLIENT, Defendant

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MOTION TO SUPPRESS GRUESOME
GUILT PHASE PHOTOGRAPHS & EVIDENCE

COMES NOW, JOHN CLIENT, by counsel, and moves this Court pursuant to the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, and Article 1, Sections 2, 3, 5, 13, 14, 16 & 17 of the Louisiana Constitution to exclude all the gruesome pictures taken of the scene, of the victim, or of anything else related in any manner at all with this crime, as well as the prejudicial and inflammatory evidence, from the first phase of his trial. In support of his motion, Mr. Client states as follows:

1. The State can simply establish the cause of death through the testimony of the coroner and the investigating officers. In addition, Mr. Client is actively prepared to stipulate to the results, and save the Court, the Parish and the state a great deal of court time and money. As a result, the photographs have lost all probative value but retain their highly prejudicial nature which will arouse the jury's hostility toward Mr. Client. The prejudicial effect of the photographs will clearly outweigh their probative value and their admission will constitute reversible error.
2. It is nothing new for a court to hold that "the photograph of the deceased was not relevant and of no value to the jury, and should not have been admitted." Coleman v. State, 67 So. 2d 304, 305 (Miss. 1953) (citing cases). In State v. Beers, 8 Ariz.App. 534, 448 P.2d 104 (1968), the court reversed, finding the gruesome photographs to be irrelevant:
No reference except in identification was made to the photographs by any witness which made the photographs relevant to any of the issues in the case. [Only the] prosecutor made reference to the pictures and bruises in his closing argument. . . .

Id. at 108; accord Bunting v. Commonwealth, 208 Va. 309, 157 S.E.2d 204, 208 (1967) (photograph "which has no tendency to prove [relevant facts], but only serves to prejudice an accused . . . excluded on the ground of lack of relevancy"); cf. Commonwealth v. Chacko, 391 A.2d 999, 1001 (Pa. 1978) (invoking "essential evidentiary value" test for inflammatory photographs); Commonwealth v. Liddick, 370 A.2d 729, 731 (Pa. 1977).
3. Of course, under the law of Louisiana, the photographs must be excluded even if they do have some evidentiary value, in light of their highly prejudicial nature. Article 403 of our Code of Evidence provides that "evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice." La. Code Evid. Ann. art. 403 (West 1991). A photograph must be excluded if there is no showing that "[t]he probative value outweighs any prejudice." State v. Baldwin, 388 So. 2d 664, 675 (La. 1980); accord State v. Brogdon, 457 So. 2d 616, 623 (La. 1984); State v. Ford, 489 So. 2d 1250, 1260 (La. 1986) (trial court must ask whether "whatever prejudicial effect they might have . . . on the jury outweigh[s] their evidentiary value"); State v. Kirkpatrick, 443 So. 2d 546 (La. 1983) (trial court must find "that the probative value of the photographs outweighs the possible inflammatory effect").
4. In particular, this rule applies to the admissibility of photographs that depict gruesome scenes involving victims of violent crime. In interpreting this evidentiary rule, the Louisiana Supreme Court has stated that "in situations where the State has already made out its case and the photographs are merely cumulative in nature and are not 'substantially necessary to show material facts or conditions' the probability is high that the probative value of these pictures will be outweighed by their prejudicial effect." State v. Scott, 337 So. 2d 1087, 1089 (La. 1976).
5. Indeed, the rule is applied with even more force to pictures that show the body opened up, with the gory entrails evident for all to see. In State v. Eaton, 524 So. 2d 1194 (La. 1988), the Court held that it was error to introduce photographs that "showed the inner portions of the body after it had been cut open. . . ." Id. at 1202 n.3 (citing State v. Morris, 245 La. 175, 157 So. 2d 728 (1963)).
6. Given all of this detailed testimony, the photographs depicting the remnants of the victim's body and clothing will not be "substantially necessary to show material facts or conditions." State v. Scott, 337 So. 2d at 1089; see also State v. Morgan, 30 So. 2d 434, 436 (La. 1947) (holding that "if a gruesome photograph is not at all necessary or material evidence in a criminal prosecution it should be excluded if it may have a tendency to cause an undue influence upon the jury"). In Scott, the court held that black and white photographs portraying the victim of a shotgun blast lying on a bed, covered with blood and "protruding from his chest . . . a portion of an organ or muscle" were "gruesome and material to no disputed issue." Scott, 337 So. 2d at 1088.
7. It is legally significant that Mr. Client has also offered a stipulation as to the cause and manner of death, obviating the need for gruesome pictures. "A stipulation to the matter sought to be proved by the photographs necessarily bears upon a balancing of the probative value of the photographs against their prejudicial effect." State v. Lindsey, 404 So. 2d 466, 475 (La. 1981); State v. Prejean, 379 So. 2d 240, 245 (La. 1979) (trial court should "determine whether the proffered stipulation was so complete as to render the photographs wholly needless"); State v. Watson, 449 So. 2d 1321, 1326 (La. 1984) (in considering admissibility of photographs, "[a]n offered stipulation bears upon this balancing test").
8. As an alternative to exclusion, Mr. Client respectfully suggests at least substituting black and white copies for the technicolor versions. Clearly, the color versions are more likely to cause a juror to vomit and have nightmares than the black and white copies. However, the black and white copies are quite adequate to display the propositions that the prosecution seeks to show. While pictures in black and white may themselves be too gruesome for use on rare occasions, see Commonwealth v. Liddick, 370 A.2d 729, 731 (Pa. 1977), as a general matter this Court should "suggest the photograph be reproduced in black and white in order to reduce its potential for prejudice." State v. Polk, 164 N.J.Super. 457, 397 A.2d 330, 334 (N.J. Super A.D. 1977).
9. On prior occasions black and white pictures have been used, with the blessing of the Supreme Court. State v. Monroe, 397 So. 2d 1258, 1267 (La. 1981) (approving use of pictures against challenge that they were gruesome, noting that "[a]ll five photographs are in black and white"); State v. Myles, 389 So. 2d 12, 16 (La. 1979) (approving use of "a low-contrast black and white study made at the morgue," and noting that "[t]he court also refused to admit a color photograph of the same scene"; the court additionally approves the fact that "no blood can be seen, and the bruises to the head allegedly caused by the defendant's beating of the victim are not observable"). It stands to reason that such pictures are less likely to be "so gruesome as to overwhelm reason." State v. Brown, 414 So. 2d 689, 698 (La. 1982).
10. Mr. Client notes that the prosecution should also be admonished not to make a big deal of such pictures as are used in the case. The use of photographs can be made more prejudicial where the "state waved the photographs before the jury to arouse passion or prejudice." State v. Watson, 449 So. 2d 1321, 1326 (La. 1984).
11. Article 403 of the Code of Evidence also applies to the admissibility of gruesome physical evidence. The Court should not admit into evidence blood-stained or inflammatory remnants of the clothing that the victim wore at the time of death. The clothing lacks any probative value and will clearly inflame the jury.
WHEREFORE, Mr. Client moves that his motion be granted, and that this Court exclude all the gruesome photographs, and other inflammatory evidence, from the guilt phase of his trial.
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