When is a photograph more disturbing than useful, particularly in an emotionally-charged trial such as a homicide case (and, more particularly, in a homicide trial where the victim is a young child)? At once a seemingly narrow inquiry, how this question is answered resonates in all sorts of cases, particularly criminal and personal injury, where a photograph or video showing severe injuries is offered as evidence.
The Pennsylvania Supreme Court debated this in Commonwealth v. Woodard, 2015 Pa. LEXIS 2786 (decided December 3, 2015). The views of both the majority and dissent warrant discussion, as they frame the issue radically differently and in so doing invite further and science-informed litigation on this issue.
Woodard was accused of killing the two-year-old child of his one-time paramour when the child was left in his custody. The injuries were “blunt trauma,” i.e., injuries caused by blows from a fist or other hard object. “Following a hearing where expert medical testimony was presented, the trial court granted the Commonwealth’s motion and ruled that thirteen autopsy photos (twelve color and one black and white), from a much larger array of pictures, were admissible at trial.”
Because the defense claimed the death was accidental, the photographs met the minimal threshold for relevance. What matters here are the differing approaches the majority and dissent applied. Acknowledging that a trial judge must determine whether a photograph is inflammatory and, if it is, then assess the probativeness, the majority found – without defining what inflammatory means or what measure it applied – that the trial court acted within its discretion when it concluded that the images depicted were not inflammatory. As noted, the twelve challenged color photographs portrayed various parts of Jaques’s body and illustrated the nature and extent of his injuries, which would not have been readily detectable in a black and white photo. The single black and white photo depicted the internal injury of Jaques’s lacerated liver.
The language of the majority conflates the facts at issue that the photos illustrate – relevance – and whether they are inflammatory. And Pennsylvania law is not especially clear on what is inflammatory, describing it in essentially tautological language – “Inflammatory evidence may be defined as that evidence which tends to inflame the minds of the jurors.” Commonwealth v. Lark, 462 A.2d 1329, 1337 (Pa. Super. Ct. 1983).
The remainder of the majority opinion on this issue is also wanting. The Court held that even if inflammatory the photographs were “highly probative” on the disputed issue of how the child died, but engaged in no discussion of whether there were alternative [and less “inflammatory”] ways of proving the same point. And the majority opinion, when it expressly rejected the claim that the photographs were “cumulative” of the medical examiner’s verbal description of the injuries, addressed an issue not raised by the appellant, whose brief argued unfair prejudice and a lack of probativeness. “Cumulative” is the wrong argument – the real issue is whether there is an alternative method of substantiating the examiner’s testimony.
The dissent is that of one voice, Chief Justice Saylor, and is important not only for how he reframes the issue but because, especially with three new Justices joining the Court in January, it offers an essential framework for future litigation. Core to his analysis are the following points:
- “there are no rational metrics available for the assessment [of what is “inflammatory”]; rather, the analysis generally proceeds in the form of a series of rather abstract and conclusory pronouncements[;]”
- “emerging evidence, derived from psychological studies, suggests that disturbing photographs of murder victims have a substantial effect on jurors in terms of fostering anger, shallower mental processing, greater reliance on shortcuts and stereotypes, and enhanced certainty even in the absence of any material probative contribution of the photographic evidence in question[;]”
- “the emotional influence ‘probably operates outside of jurors’ conscious awareness,’ thus raising questions about the ameliorative effect of limiting instructions issued by trial judges[;]” and
- because the medical examiner was able to “meticulously” detail the injuries, the inflammatory photos were unnecessary.
The “psychological studies” are those found by the Chief Justice, as they were not cited by the parties. They were:
Bandes & Salerno, Emotion, Proof and Prejudice, 46 Ariz. St. L.J. at 1026-27, 1045-48 (citing, inter alia, D.A. Bright & J. Goodman-Delahunty, Gruesome Evidence and Emotion: Anger, Blame, and Jury Decision-Making, 30 Law & Hum. Behav. 183 (2006), and Jennifer S. Lerner & Larissa Z. Tiedens, Portrait of the Angry Decision Maker: How Appraisal Tendencies Shape Anger’s Influence on Cognition, 19 Behav. Decision Making 115, 122 (2006)
The power of photographs, and their utility in conveying information, cannot be doubted. There is substantial research confirming their value because of jurors’ retention of what they see. “Researchers have found that ‘juries remember 85 percent of what they see as opposed to only 15 percent of what they hear.’” Caldwell, Perrin and Frost, The Art and Architecture of Closing Argument, 76 Tul. L. Rev. 961, 1043 (2002). As another article explained, “the party that presents the most visual aids is thought to be more likely to get the verdict it seeks, making it especially rewarding for the State to produce more and more demonstrative evidence. Though justice may be blind, expert attorneys know that jurors are not.” NOTE & COMMENT: 50 SHADES OF PREJUDICIAL: REEXAMINING DEMONSTRATIVE EVIDENCE THROUGH STATE V. JONES, 45 U. Tol. L. Rev. 319, 327 (2014). And jurors (and justice) may be better served when they see what the expert saw and relied upon.
But learning is one phenomenon; being shocked into emotional decision-making is another. Woodard offers two views to the value and danger of photographic evidence; and to those who seek to limit use of such proof the dissent is both invitation and blueprint for importing science into the calculus of what is inflammatory, rather than leaving it to a regimen of boundless discretion.