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25.15 Evidence That Suggests Defendant Was Previously Arrested Or Convicted

    25.15.1 Mugshots/Police Photos Of Defendant: Cautionary Instruction
    25.15.2 Improper To Include Alias In Referring To Defendant In Instructions
    25.15.3 Fingerprints On File
    25.15.4 Jury Not To Speculate About “Masked-Off” Portions Of Photos

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RATIONALE: If the jurors learn that the police had a "mugshot" or police photo of the defendant, they may assume that the defendant was previously arrested and draw prejudicial inferences against the defendant.

POINTS AND AUTHORITIES: Mug shot evidence tending to inform the jury of a defendant's commission of other, unrelated criminal acts should not be admitted. (See e.g., People v. Nelson (IL 2000) 737 NE2d 632, 637 [admission of mugshot evidence was reversible error]; see also People v. Arman (IL 1989)545 NE2d 658, 662.)

    See also FORECITE National™ 25.15.2 [Improper To Include Alias In Referring To Defendant In Instructions].

    See also FORECITE National™ 25.15.3 [Fingerprints On File].

    See also FORECITE National™ 25.15.4 [Jury Not To Speculate About "Masked-Off" Portions Of Photos].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.1; 7.3].

See Manual On Recurring Problems In Criminal Trials [2g. Identification Testimony: Mugshots Are Inadmissible].

See 8th Circuit Model Jury Instructions - Criminal 2.21.

See also 9th Circuit Model Jury Instructions - Criminal 2.11.

See also Federal Judicial Center, Pattern Criminal Jury Instruction 15.

    You will recall that one of the witnesses in this trial, ___________, testified that [e.g.: he viewed a photograph of the defendant which was shown to him by the police]. The police collect pictures of many people from many different sources and for many different purposes. The fact that the police had the defendant's picture does not mean that he committed this or any other crime.

[Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTION 15 [Defendant’s Photographs, "Mug Shots": No Inference To Be Drawn From Police Possession] (1988).]

    There has been testimony as to a photograph of the defendant in the possession of the police. Do not speculate about how or why the police had this photograph.  Pictures of people are available from many different sources and for many different purposes, including but not limited to, drivers’ license applications, passports, identification cards, various forms of government employment, private employment requiring state regulation, or from many other various sources totally unconnected with criminal activity.  [Therefore, you must not conclude or assume that the defendant was arrested or convicted on a prior occasion.]

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PRACTICE NOTE: Because it may suggest that the defendant was previously arrested or convicted for another offense or that the defendant was trying to avoid apprehension, it is improper to use the defendant's alias in the instructions. (See Wharton’s Criminal Procedure (West, 13th ed. 1989) 467, p. 29; see also People v. Romero (CO 1985) 694 P2d 1256, 1268.)

RESEARCH NOTE:

Annotation, Propriety And Effect, In Criminal Case, Use Of Alias Of Accused In Instructions To Jury, 87 ALR2d 1217.

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    See FORECITE National™ 32.2.3 [Fingerprints: No Speculation As To Why Defendant’s Fingerprints Were On File].

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    See FORECITE National™ 25.2.7 [Jury Not To Speculate About "Masked-Off" Portions Of Photos].