For the Defense - Volume 1, Issue 3 - 2016 - 42

party tell its story in the manner it prefers" to "do you really need that to tell a rich story and make your case?" And where it truly is needed, care should be taken in jury selection to assess which prospective jurors might be overwhelmed by such proof, and in trial presentation to minimize exposure. The need for this shift in approach is not a mere academic conjecture. It is substantial enough that in the Woodard case involving 13 autopsy photos, Pennsylvania's chief justice wrote a dissent in which he called for greater judicial scrutiny and more exclusion of gruesome evidence. Surveying some of the scientific research, Chief Justice Thomas Saylor wrote that "appellate courts should impose some constraints upon the introduction of graphic photographs into the courtroom. ..." He went on to say that the medical examiner's detailed verbal depiction of the injuries was more than sufficient. He concluded: [C]olor photographs of a nude, battered, open-eyed, deceased child on a slab, encompassing full body portraits and facial close-ups, should be regarded as inflammatory (or likely to evoke strong emotional reactions, including generating anger). Such graphic, visceral portrayals of a dead child, in my view, create an unacceptable risk of influencing jurors to reach conclusions based on factors other than a strict application of the law to the facts.30 Chief Justice Saylor's dissent is both an invitation to and a modest blueprint for a new litigation strategy. And there are strong responses to the likely prosecution (or judicial) rejoinder that trials will become sterile recounting of fact, or that juries will leave the courtroom asking, "Why wasn't there more proof?" Plenty of emotion will remain in the drama of the courtroom, and skilled litigators have or can hone the art of keeping a trial interesting and bringing a rich, textured, and comprehensible story to jurors. But this can be done without gruesome evidence, and should be achieved with a better metric than "I know it when I see it." © 2015, Jules Epstein and Suzanne Mannes. All rights reserved. 42 For The Defense | Vol. 1, Issue 3 © 2016, National Association of Criminal Defense Lawyers. Reprinted with permission. Notes See, e.g., FED. R. EVID. 403 ("The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice [or] misleading the jury. 2. United States v. Watson, 766 F.3d 1219,1242,2014 U.S. App. LEXIS 17539, *59 (10th Cir.2014) (internal quotation and citation omitted). 3. Jacobellis v. Ohio, 378 U.S. 184, 197, 84 S. Ct. 1676,1683 (1964), Stewart, J" concurring ("I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it[.]"). 4. Aurora theater shooting trial: By the numbers, NBC News 3:27 p.m. MDT July 15, 2015, http:// www.9news.com/story/news/local/aurora-theater-trial/2015/07/15/auroratheater-shooting-numbers-stats/30206423/ (last visited 11/20/15). 5. http://www.thedenverchannel.com/news/movie-theater-shooting/7-most-dramatic-moments-in-theatershooting-casevideos-from-the-trial-of-james-holmes (last visited 11/20/15). 6. Commonwealth v. Woodard, 2015 Pa. LEXIS 2786, *29 (Pa. Dec. 3, 2015). 7. Rubert-Torres ex rel. Cintron-Rupert v. Hospital San Pablo, Inc., 205 F.3d 472,478 (1 st Cir. 2000) (internal quotations and citation omitted). See generally Comment: Does Plaintiff Exclusion Have a Role to Play in Twenty-First Century Negligence Litigation? 23 BUFF. PUB. INTEREST L.J. 89 (2004/2005). 8. Commonwealth v. Parker, 2012 Pa. Dist. & Cnty. Dec. LEXIS 211, *26 (Pa. County Ct. 2012). 9. Stanley Schachter & Jerome E. Singer, Cognitive, Social, and Physiological Determinants of Emotional State, 69 PSYCHOL. REV. 379-399 (1962). According to this theory, the specific emotion that people experience (e.g., anger or excitement) when they detect physiological arousal (e.g., increased heart rate) depends on the cognitive label they attach to it (e.g., Did I just view pictures of a mutilated corpse or am I about to ride a roller coaster?). 10. Functional magnetic resonance imaging, or fMRI, is a neuro-imaging technique that, by measuring differences in blood flow to different brain regions, allows researchers to identify which parts of the brain are engaged during various activities. 11. Beatrice H. Capestany & Lasana T. Harris, Disgust and Biological Descriptions Bias Logical Reasoning During Legal Decision-Making, 9 SOCIAL NEUROSCIENCE 265277 (2014). 1. http://www.9news.com/story/news/local/aurora-theater-trial/2015/07/15/auroratheater-shooting-numbers-stats/30206423/ http://www.9news.com/story/news/local/aurora-theater-trial/2015/07/15/auroratheater-shooting-numbers-stats/30206423/ http://www.thedenverchannel.com/news/movie-theater-shooting/7-most-dramatic-moments-in-theater-shooting-case-videos-from-the-trial-of-james-holmes

Table of Contents for the Digital Edition of For the Defense - Volume 1, Issue 3 - 2016