Arkansas Supreme Court; Jack Holt, Jr.; Darrell Hickman

“ The appellant argued that any probative value of the photographs was outweighed by the prejudice likely to result, and that at some point the photographs were merely cumulative and entered only to further incite passion against her.
The first question upon the proper introduction of photographs, as with all evidence, is whether they are relevant. " 'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." ”

“ The matters to be taken into consideration include the value of photographs as evidence, that is, their accuracy and clarity, and whether they were taken before the corpse was moved, if the position and location of the body when found is material; the inadequacy of testimonial evidence in relating the facts to the jury; and the need for the evidence to establish a prima facie case of guilt or to rebut the defendant's contentions. . . .
The more gruesome the photographs, the more difficult it is to establish that their probative value and relevance outweigh their prejudicial effect. ”

“ We have held on numerous occasions that a motion for change of venue is not supported by "credible persons" when the movants, affiants or witnesses are unable to show in their testimony that they have a general knowledge as to the state of mind of the inhabitants of the whole county or that they are cognizant of prejudice existing throughout the whole county. ”

“ The majority seems to feel that, because we have never found that the introduction of photographs constituted prejudicial error, we are committed to the philosophy that the trial court's exercise of discretion on such matters is not subject to review. ”

“ Among her points for reversal, the appellant contends that the trial court erred in admitting numerous graphic photographs of the victim taken at the scene and afterward, and entered to show the injuries inflicted by her accomplice in this crime. We agree and reverse for a new trial. The only other issue we deem necessary to address, in light of our holding, is the appellant's argument that the trial court erred in denying her motion for a change of venue because of pretrial publicity. ”

“ In the present case, an element of the state's proof was that the death was caused "under circumstances manifesting extreme indifference to the value of human life." It is not true, as appellant argues, that the fact that she did not administer the blows makes the photographs totally irrelevant, because she is liable for the conduct of her accomplice. ”

“ The fact that photographs are inflammatory is not alone sufficient reason to exclude them. Smith v. State, 282 Ark. 535, 669 S.W.2d 201 (1984) ; Walton v. State, 279 Ark. 193, 650 S.W.2d 231 (1983) . Inflammatory pictures are "admissible in the discretion of the trial judge, if they tend to shed light on any issue or are useful to enable a witness to better describe the objects portrayed or the jury to better understand the testimony, or to corroborate testimony." ”

“ Connor, 434 A.2d 509 (Me. 1981) (admission of photograph showing bullet wound and distorted face of victim was error, but was harmless in light of overwhelming evidence against defendant) .
Some states, in recognition of the potential for prejudice caused by inflammatory photographs, have adopted a rule that the photographs are not admissible unless they are "of such essential evidentiary value that their need clearly outweighs the likelihood of inflaming the minds and passions of the jurors." Commonwealth v. Liddick, 370 A.2d 729 (Pa. 1977) . ”

“ The record reflects that Berry chose the victim, conspired in the killing and was present at the murder scene at the time of the murder. We do not know if she used the crow bar. She may have helped. We do know that she could have stepped into stop the blows which were repeatedly struck to kill her great aunt. ”

“ Commonwealth v. Scaramuzzino, 455 Pa. 378, 317 A.2d 225 (1974) . In the presence of an offer to stipulate the facts shown in the photograph, the State's burden of justification is often difficult to sustain. ”