EvidenceProf Blog

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

Monday, June 22, 2015

Is Tennessee's Victims Rights Photo Bill Fair to Defendants?

According to an article in The Greenville Sun,

Postmortem images of murder victims are one of the tools prosecutors use to help obtain a conviction at trial.

But legislation that becomes law on July 1 in Tennessee will allow juries to see victims as they appeared alive.

The "Victim Rights Photo Bill" has strong supporters among the state's district attorneys, and detractors among criminal defense lawyers who defend murder suspects.

The bill, as enacted, "provides that in a prosecution for any criminal homicide, an appropriate photograph of the victim while still alive will be admissible evidence when offered by the district attorney to show the general appearance and condition of the victim while alive."

I'm not sure how I feel about this legislation. According to Dan E. Armstrong, district attorney general of the 3rd Judicial District,

"The benefit to the prosecution is to remind the jury when they see brutal and gruesome photos of a dead body that we are talking about a human being who had value," he said. "The families of victims of homicide want the jury to see the one they loved as they lived, and many families report that it helps bring a sense of closure to know that that the jury saw their loved one in life, not just in death."

On the other hand, trial lawyer Louis Ricker, has countered that "[t]he bill can be detrimental to clients." Specifically, the showing of live photos of the victim could inflame the passions of the jury and prompt them to feel that justice needs to be done for the loss of life despite guilt not being proven beyond a reasonable doubt.

What's clear is that the new legislation will cause changes in many Tennessee courtrooms. Currently, "appellate court decisions have caused some judges to be hesitant in admitting life photos for fear of reversal on appeal."

As I said before, I'm uncertain how I feel. This is the classic conflict between defendants' rights and victims' rights. I plan to look at some of the appellate court decisions on the issue before deciding where I stand.



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I'm not conflicted. It's a bad idea. While showing those photos would make sense during sentencing, they offer nothing of value during the trial.

Posted by: Bacchys | Jun 23, 2015 3:06:22 AM

The appearance of the victim before the crime was committed bears no relevance to whether or not the accused committed the crime - so it doesn't make much sense to allow such images into the trial phase. I'm not even convinced they should be admitted during sentencing, as this should also be independent of how the victim looks. There's nothing to stop an image of the victim being brought up once proceedings have been completed in remembrance of the victim. There is a real risk of bias in including such images - e.g., research into the effects of the attractiveness/gender/race of the accused shows that these characteristics affect how likely they are to get found guilty and also the severity of sentence. So not only does it risk 'inflaming the passions of the jury' (perhaps leading to a blanket increase in the conviction rate - perhaps even where evidence is weaker, leading to more miscarriages of justice), biases in a specific direction might occur, including during sentencing, see: http://onlinelibrary.wiley.com/doi/10.1111/j.1559-1816.1994.tb01552.x/abstract - which may prevent justice being done for the victim.

Posted by: Cupcake | Jun 23, 2015 10:18:17 AM

You're just wrong when you frame this as an issue of victim's rights. Here is what the article says, "and many families report that it helps bring a sense of closure to know that that the jury saw their loved one in life, not just in death". That is a benefit to the victim's family, not the victim. I don't see how the victim's family has any right that should adhere at the trial when in theory were are dealing with an ALLEGED victim and an ALLEGED criminal.

This is just another case where the prosecutors want the jury to assume what they should need to prove.

Posted by: Daniel | Jun 23, 2015 1:05:16 PM

@Daniel Here in Texas the family members of a homicide are legally considered "victims". The Crime Victims' Bill of Rights considers the family the victim. This is mainly to make sure that the victim's family is provided resources. Such as, Crime Victims Compensation, Victim Services, Counseling, etc.While agreeing or not agreeing with you on the picture issue I do believe that the family members of someone who has been murdered are the victims. They suffered a tremendous loss and have been victimized by another person.

Posted by: Melissa | Jun 25, 2015 6:29:58 AM

Bad idea. The criminal justice system is about the defendant and whether the government will punish that defendant The civil justice system is about victims. Though we blurred this line years ago, those who defend criminal cases must push back and constantly remind courts that the concept of "victims' rights" is a feel-good term for increasing prejudice against defendants in criminal cases.

Posted by: Joe Heinzmann | Jun 25, 2015 6:32:37 AM

Admitting evidence concerning the victims’ lives, separate from the crime, is problematic for a number of reasons. In addition to its highly questionable relevance at the trial stage, such evidence invites the jury, even more than they already do, to factor inherent prejudices into their decision. Research has now shown that, while there is not necessarily a substantial racial bias in convictions and sentencing based solely on the race of the perpetrator, there is a clear trend towards higher rates of convictions and greater penalties in cases involving white victims. Allowing prosecutors to focus on the identity of the victim, playing on the jury’s capacity to empathize with people viewed as similar to themselves, will likely exacerbate such systemic imbalances. Justice Stevens, dissenting from a decision allowing victim impact statements at capital sentencing, said the following: “The fact that each of us is unique is a proposition so obvious that it surely requires no evidentiary support. What is not obvious, however, is the way in which the character or reputation in one case may differ from that of other possible victims. Evidence offered to prove such differences can only be intended to identify some victims as more worthy of protection than others. Such proof risks decisions based on the same invidious motives as a prosecutor's decision to seek the death penalty if a victim is white, but to accept a plea bargain if the victim is black.” Payne v. Tennessee, 501 U.S. 808, 866 (1991) (STEVENS, J., dissenting).

In addition to tilting the scales against alleged victimizers of the photogenically sympathetic, the evidentiary rule at issue will likely have a negative effect on criminal defendants as a whole, simply because jurors tend unconsciously to view criminals (even alleged criminals) as inherently dissimilar from themselves. Generally speaking, juries need no assistance to empathize with a victim; the capacity to empathize with a defendant, on the other hand, is a rare quality indeed.

Posted by: Josh | Jun 25, 2015 7:44:22 AM

Separate from the question of the advisability of the law is the question of constitutionality. Generally speaking, issues of admissibility based on relevance are left to the states, so a facial constitutional challenge might prove difficult to mount. However, in capital punishment cases, the Eight Amendment has been held to require that a jury's discretion to impose the death sentence must be "suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action," and thus to impose certain limited relevance standards on state trial and sentencing procedures. Booth v. Maryland, 482 U.S. 496, 502 (1987), citing Gregg v. Georgia, 428 U.S. 153, 189 (1976). Thus, an as-applied challenge could potentially be made to the law in a capital case. It is also possible that the state constitution could be interpreted to limit the admission of irrelevant evidence such as that at issue. I suppose an Equal Protection argument could be developed on the basis that the photographs tend to have a discriminatory effect on alleged perpetrators of crimes against white victims, etc., or are used for a discriminatory purpose, but such claims face an uphill battle. See McCleskey v. Kemp, 481 U.S. 279 (1987) (statistical disparity in sentencing based on race of victim, and to a lesser extent perpetrator, does not render imposition of the death penalty unconstitutional).

Posted by: Josh | Jun 25, 2015 8:32:11 AM


Thanks for sharing that data. I'm actually a huge fan of victim's rights but in my mind that bill in Texas goes too far. In theory, everyone in society is a victim of a crime because everyone loses in some degree when a crime is committed. So the question then becomes where does one draw the line? Why should the family have any special say so? The family of the alleged defendant doesn't get a voice even though their reputations might be blackened by the allegations too.

I think that's a terrible and unjust law.

Posted by: Daniel | Jun 25, 2015 6:25:08 PM

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