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25.11 Inflammatory Evidence

    25.11.1 Cautionary Instructions: Inflammatory Photographs
    25.11.2 Testimony Relating To Race, Religion Or National Origin Of Defendant Is Improper

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 VOLUME 4- CHAPTER 25

    25.11.1    Cautionary Instructions: Inflammatory Photographs

RATIONALE: When inflammatory photographs are admitted into evidence, a cautionary instruction be necessary in light of the prejudice which may result from the jury’s reaction to the photographs’ unpleasant, shocking or emotionally-charged content.

POINTS AND AUTHORITIES: "Whenever (such photographs) are received in evidence, the jury should be instructed as to their purpose and cautioned not to permit the photographs to stir up their emotions to a defendant's prejudice." (Commonwealth v. Robinson (PA 1969) 249 A2d 536, 540; Commonwealth v. Wantzel (PA 1948) 61 A2d 309, 315; see also State v. Iverson (ND 1971) 187 NW2d 1, 38.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.1; 5.3].

PRACTICE NOTE: It may also be appropriate to prohibit the jurors from taking the photos into the jury deliberation room as an additional safeguard against undue prejudice. (See Commonwealth v. Cottam (PA 1994) 616 A2d 988, 1002.)

SAMPLE INSTRUCTION:

    This photograph was admitted into evidence for the purpose of [showing the nature of the wounds received by the deceased] [showing conditions at the scene of the alleged crime] [helping you understand the testimony of the witnesses who referred to it] [______________].  Do not allow the emotional impact of this evidence to prejudice your evaluation of the evidence. Your verdict must be based on a rational and fair consideration of all the evidence and not on passion or prejudice for or against the defendant, the prosecution, or anyone else connected with this case.

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    25.11.2    Testimony Relating To Race, Religion Or National Origin Of Defendant Is Improper

PRACTICE NOTE:  Appeals to racial, ethnic, or religious prejudice during the course of a trial violate a defendant's right to a fair trial. "[I]t is evident under clearly established federal law that this very kind of conduct by a prosecutor (to the extent that it involves either race or ethnicity) violates a criminal defendant's due process and equal protection rights." (Bains v. Cambra (9th Cir. 2000) 204 F3d 964, 974 [testimony about the Sikh religion and predisposition to violence when a family member has been dishonored]; see also McCleskey v. Kemp (1987) 481 US 279, 309 n.30 [noting that "[t]he Constitution prohibits racially biased prosecutorial arguments"].) However, this violation concerns not only prosecutorial arguments, but testimony educed at trial as well. (See United States v. Vue (8th Cir. 1994) 13 F3d 1206, 1212-13 [customs agent's testimony about the tendency of Hmong people to smuggle opium into the Twin Cities was reversible error]; United States v.Cruz (2d Cir. 1992) 981 F2d 659, 663-64 [references to the defendant as "the Dominican" and a DEA agent's testimony about a New York City neighborhood where drug transactions took place as having "a very high Hispanic population"]; United States v. Doe (D.C. Cir. 1990) 903 F2d 16, 20 [trial testimony and closing arguments about Jamaicans taking over Washington, D.C.'s crack cocaine market].)

    Specifically, in Vue, although the court believed that the evidence was sufficient to convict the Vues, it reversed their convictions because the impermissible generalizations about the Hmong people was error "of constitutional dimension, because the injection of ethnicity into the trial clearly invited the jury to put the Vues' racial and cultural background into the balance in determining their guilt. We view this as a serious trespass on the rights to due process and equal protection guaranteed to the Vues by the fifth amendment. Formal equality before the law is the bedrock of our legal system, and we are determined that that principle will not be undermined." (Vue, 13 F3d at 1213.)

    Similarly, U.S. v. Cabrera (9th Cir. 2000) 222 F3d 590 held that a detective’s repeated references to the defendants’ Cuban origin and generalizations about the Cuban community prejudiced the defendants in the eyes of the jury and was plain error: "The fairness and integrity of criminal trials are at stake if we allow police officers to make generalizations about racial and ethnic groups in order to obtain convictions."  (Cabrera, 222 F3d at 597.)