EvidenceProf Blog

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

Monday, May 13, 2019

Eighth Circuit Finds No Problem With the Admissions of Photos/Video of a Defendant's Unrelated Arrest Weeks Before the Crime Charged

Assume that a defendant is charged with robbery and related crimes.

The store’s surveillance video captured the incident. The man was wearing a black ski mask and sunglasses, so his face was hidden. The robber also donned a black jacket with red and white trim, a red hooded sweatshirt, red shoes with one white shoelace and one red shoelace, and latex gloves.

Assume that the defendant had been arrested a few weeks before the robbery for an unrelated charge and was "wearing a jacket and shoes that matched the jacket and shoes worn by the person that committed the robbery." Should the prosecution be able to introduce video/photos of the defendant at jail from his prior arrest? That was the question addressed by the Eighth Circuit in its recent opinion in United States v. Conner, 2019 WL 2039858 (8th Cir. 2019).

In Conner, the facts were as stated above. Before admitting the photo/video evidence, the judge instructed the jury:

The following video recording and photographic evidence, in that you will see Mr. Conner during an interaction with the Wagner Police Department that took place in November of 2016. You may use this evidence to help you decide whether Mr. Conner is the person who committed the offense as alleged in the Indictment. You should not conclude that Mr. Conner is more or less likely to have committed the charged offenses in this case due to a prior interaction with the Wagner Police Department.

In upholding the admission of this evidence on appeal, the Eighth Circuit first found that it was 

was relevant to show that Conner donned a jacket and shoes on November 17 that matched the jacket and shoes worn by the robber on December 7. The evidence thus tended to make it more probable that Conner committed the robbery than if there was no evidence that he had previously worn the attire.

The Eighth Circuit next found that this evidence wasn't impermissible character evidence under Federal Rule of Evidence 404(b) because

[t]he evidence of Conner’s attire on November 17 was not evidence of a prior crime or wrong offered to show that he committed a “signature” crime on December 7. It was simply relevant circumstantial evidence that he committed the robbery because he was known to wear clothing like that worn by the robber.

Finally, the Eighth Circuit found that the probative value of the evidence wasn't substantially outweighed by the danger of unfair prejudice because

[t]he limiting instruction was properly designed to avoid any unfair prejudice from this evidence, telling jurors that they should not conclude that Conner was more likely to have committed the charged offenses due to his previous interaction with the police.

I don't necessarily disagree with any of these three evidentiary rulings, but the admission of this evidence still seems...odd. By giving the limiting instruction, the judge acknowledged that the jurors could very well have used the video/photo evidence to draw adverse inferences about the defendant's character. So...why didn't the court simply limit the prosecution to photo evidence...and require the prosecution to crop the photo(s)? 

If the key point is simply what the defendant was wearing and not where he was (jail), all the jurors needed to see was a cropped photo of the defendant's attire. This would seem to have been a far superior approach even if the one taken by the trial court technically complied with the rules of evidence.



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Why not simply admit the clothes into evidence assuming he still had them?

Posted by: Robert | May 14, 2019 10:28:25 AM

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