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Editor: Colin Miller
Univ. of South Carolina School of Law

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Saturday, November 24, 2007

That's Not A Knife Wound: Australian Studies Produce Fascinating Conclusions On "Gruesome" Evidence

Two mock trial studies in Australia have produced fascinating conclusions about the effect of "gruesome" evidence on jurors.  According to the studies, jurors presented with "gruesome evidence," such as descriptions or images of torture and mutilation, are up to five times more likely to convict a defendant than jurors not privy to such evidence.

David Bright, a USNW PhD student involved with the study noted that "the prejudicial influence of gruesome evidence on decision making occurs at an unconscious level.  Jurors appear to be unaware of the extent to which they are susceptible to prejudice as a result of exposure to this type of evidence."  The studies also concluded that safeguards, such as judicial directions that jurors should view such evidence in a calm and deliberate manner probably don't offer sufficient protection to defendants.

The studies call into question the way that Australian courts have treated this "gruesome evidence."  Currently, Australian judges are reluctant to exclude such material.  Specifically, Australian case law reflects an assumption that post-mortem photographs have little or no prejudicial impact on juries. 

These studies have provided empirical support for concerns about prejudicial evidence outlined by the Australian Law Reform Commission and the Government's Advisory Committee on the Federal Rules of Evidence that prejudicial evidence such as gruesome photographs can damage a defendant's case by provoking an irrational, emotional response, or giving evidence more weight than it warrants.

Of course, this study also calls into question the way that American courts treat "gruesome" evidence.  Under Federal Rule of Evidence 403 and most state counterparts, there is a liberal standard for admissibility, with relevant evidence being admissible unless its probative value is substantially outweighed by the danger of unfair prejudice, etc.  "Gruesome" evidence such as post-mortem photographs, typically passes the Rule 403 test.  See, e.g., State v. Fletcher, 609 S.E.2d 572, 591 (S.C. App. 2005).

I have always been of the view that jurors do not "need to be protected from themselves," see, e.g. State v. Bocharski, 22 P.3d 43, 57 (Ariz. 2001)(Martone, J., concurring), but these studies have caused me to questioned not only the validity of this viewpoint, but also its relevancy.  First, maybe jurors do need to be protected from themselves.  Second, and more importantly, however, maybe the relevant question is not whether jurors need to be protected from themselves, but whether defendants (and the law?) need to be protected from "gruesome" evidence.

-CM

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