Fill and Sign the Motion Preclude Form

IN THE CIRCUIT COURT OF       COUNTY, MISSISSIPPI STATE OF MISSISSIPPI VS. CAUSE NUMBER             DEFENDANT MOTION TO PRECLUDE ADMISSION OF GRUESOME AND HIGHLY PREJUDICIAL COLOR PHOTOGRAPHS OF DECEASED COMES NOW,       , by counsel, and moves this Court pursuant to the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, and Article 3, §§ 5, 12, 13, 14, 15, 16, 18, 21, 22, 23, 24, 25, 26, 27, 28, 29, 31 & 32 of the Mississippi Constitution to preclude admission of the gruesome and highly prejudicial color photographs of the dead victim in this case, or to order their substitution with black and white pictures. In support of his motion,       states as follows: 1. In this trial, certainly the Court should not admit a picture of a victim taken before death. This needless injection of prejudicial sympathy for the victim has been routinely criti cized: We have disapproved of the use of "before" photographs of victims in previous cases . . . [and] indicted that such pictures lack relevancy in criminal cases: The jury should not have been concerned with what the child looked like prior to the offense committed against her, but instead it should have been concerned only with what had been done to the child, how it was done, when it was done, and who did it. Smith v. State , 650 P.2d 904, 909 (Okla. Cr. 1982) (quoting Hudman v. State , 89 Okl. Cr. 160, 205 P.2d 1175 (1949); Ritchie v. State , 632 P.2d 1244 (Okl. Cr. 1981)). 2. Likewise, the use of pictures taken after death, which are yet more prejudicial. The issue of gruesome photographs is one of the most troubling in capital cases today. Too often, appellate courts are asked to rubber stamp the admission of truly revolting pictures, even though "[i]t is unrealistic to believe, even after a limited view, that the horror engendered by these slides could ever be erased from the minds of the jurors. . . ." Commonwealth v. Garrison , 331 A.2d 186, 188 (Pa. 1975). Ultimate ly, the Courts lose their patience and, as in McNeal v. State , 551 So.2d 151 (Miss. 1989), are forced to reverse the conviction or sentence. 3. It should be remembered that photographs, by them selves, tell very little. Pictures are taken by pathologists in this State every day which were absolutely horrific, yet were the product of an automobile or motorcycle wreck, not murder. If the purpose of the photographs introduced in this case was to "illustrate the testimony of the pathologist . . . it is quite apparent that it sheds little light . . . ." Garrison , 331 A.2d at 188. 4. At one end of the "shock value" spectrum are photos which are introduced in the course of an autopsy. Because such pictures have such potential to confuse and inflame, even when the expert explains to the jury what he or she did during autopsy, "Courts have been almost universal in their condemnation of admitting photographs depicting the victim's body after it has been subject to autopsy procedures." State v. Clawson , 270 S.E.2d 659, 671 (W.Va. 1980) (citing cases); accord McCullough v. State , 255 Ga. 672, 341 S.E.2d 706 (1986); People v. Coleman , 116 Ill. App. 3d 28, 71 Ill.Dec. 819, 451 N.E.2d 973, 977 (1983); Brown v. State , 250 Ga. 862, 302 S.E.2d 347 (1983); Commonwealth v. Richmond , 358 N.E.2d 999, 1001 (Mass. 1976); State v. Childers , 217 Kan. 410, 536 P.2d 1349, 1354 (1975); People v. Burns , 241 P.2d 308, 318 (Cal. App. 1952); cf. Rosa v. State , 412 So.2d 891, 892 (Fla. DCA3 1982) (excluding photograph which "depicted the results of emergency procedures performed after the stabbing") (citing cases). 5. Even with pictures at the crime scene, or prior to an autopsy, it is nothing new for the Mississippi Supreme 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); accord McNeal v. State , 551 So.2d 151 (Miss. 1989). In State v. Beers , 8 Ariz.App. 534, 448 P.2d 104 (1969), 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 inflam - matory photographs); Commonwealth v. Liddick , 370 A.2d 729, 731 (Pa. 1977). This Court should similarly hold the pictures irrelevant in this case. See , e.g. , Stringer v. State , 491 So.2d 837, 840 (Miss. 1986) (gun introduced at trial irrelevant). 6. At a minimum, this Court must place the burden on the State to bear a heavy burden of proof prior to the admission of photo graphs. This showing must be made in limine , so that the defense can prepare for voir dire , and for the case to be presented to the jury. Again at a minimum, the prosecution must bear the burden of proving several factors. First, that the pictures are actually illustrative of the witnesses' testimony. See , e.g. , Commonwealth v. Rogers , 401 A.2d 329, 330 (Pa. 1979) ("But the officer did not need the photograph to . . . testify"); Garrison , 331 A.2d at 188 ("it is quite apparent that it sheds little light" on testimony). 7. Second, the prosecution must obviously show that the wounds depicted were actually caused by the crime. In general, pictures taken during or after autopsy should be excluded since they mostly show what the surgeon did, and for this reason "Courts have been almost universal in their condemnation of admitting photographs depicting the victim's body after it has been subject to autopsy procedures." State v. Clawson , 270 S.E.2d at 671 (citing cases). 8. Third, the prosecution must prove to the satisfaction of this Court that the jury could not be equally enlightened by a diagram, or black-and-white photographs, instead of pictures in vivid and inflammatory technicolor. While pictures in black and white may themselves be too gruesome for use on rare occasions, see Common wealth 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 (1977). 9. Fourth, of course, this Court must also determine whether the photographs are duplicative. President v. State , 602 P.2d 222, 226 (Okla. Ct. Crim. App. 1979). 10. Following such guidelines, this Court should rule that if the pictures are admitted       will be: denied a fair trial when the court allowed a gruesome, color photograph of the deceased's injuries to go to the jury. In this case, the photograph . . . could serve no purpose other than to inflame and prejudice the jury in the grossest manner. People v. Garlick , 46 Ill.App.3d 216, 4 Ill.Dec. 746, 360 N.E.2d 1121, 1126-27 (1977); accord Common wealth v. Scaramuzzino , 317 A.2d 225, 226 (Pa. 1974) ("photograph of a wound at the back of the ear with the hair pulled away" too prejudicial). WHEREFORE       moves that his motion be granted. Respectfully submitted, ** By:_________________________       CERTIFICATE OF SERVICE I, ___________________, attorney for _____________, do hereby certify that I have on this day delivered, by hand, a true and correct copy of the foregoing Motion to This the ____ day of ____________ 20___. _____________________________ ** **