By Doug Chartier, LAW WEEK COLORADO
In a recent review of a reckless manslaughter conviction, the Colorado Court of Appeals rejected a district court’s admission of in-life photographs depicting the victim, saying that the photos, as presented by the prosecution, cast an unfair prejudice against the defendant. The judgment brings to light, once again, a common yet sometimes controversial criminal court practice.
In the Jan. 8 judgment of People v. McClelland, for which Judge Daniel Taubman wrote the opinion, the appellate court reversed the reckless manslaughter conviction after reviewing the contention that the trial court erred in not giving the jury a self-defense law instruction on the reckless manslaughter charge. However, the opinion also dealt heavily with the defendant’s contention that the “the trial court abused its discretion when it admitted three ‘in life’ photographs of (the victim), depicting him participating in family events.”
The appellate court instructed the district court, when it retries the case, to “reconsider whether to allow ‘in life’ photographs … and if so, how many, and whether to limit the prosecution’s comments about them so as to avoid the risk of unfair prejudice.”
Probative vs. prejudicial
Colorado does not have a per se rule regarding the appropriate use of in-life photos in homicide cases. Their admissibility in court is determined on a case-by-case — and photo-by-photo — basis weighing their probative value against the risk of unfair prejudice. Using these criteria, the judge will often limit the number and type of photos the prosecution can use.