Federal Evidence Review

In civil rights suit against town police officers who arrested the plaintiff for cruelty to animals, no error in admitting photo of the dog allegedly abused because it was not unfairly prejudicial under FRE 403 in light of the trial judge's jury instruction that sympathy not be a basis for the verdict and that the photo was pertinent to their determination of whether a reasonable police officer would have probable cause to believe the plaintiff committed a crime, in Grossmith v. Noonan, 607 F.3d 277 (1st Cir. June 9, 2010) (No. 09-1900)

One recurring area of dispute under FRE 403 (involving the exclusion of relevant evidence that is unduly prejudicial) involves weighing the probative value of a graphic photographic evidence against its unfair prejudice. A photograph can be the equivalent of "waiving a bloody shirt" and may engender strong emotional feelings in the fact-finder, in some circumstances distracting them from their duty to consider the evidence. See United States v. Fields, 483 F.3d 313, 354–56 (5th Cir. 2007) (In murder prosecution admitting over thirty photos of the alleged victim's body, some showing it “in an advanced stage of decomposition” and “subject to animal predation”; although the photos were “shocking,” they were admitted because of their “nontrivial” probative value in rebutting defense arguments about why so "little physical evidence was found” as it had been “carried away by animals"). While the case of the graphic photograph may make the balance of probative value and unfair prejudice easier to assess, what of photographs that draw upon a juror's deep emotions. This is often found in animal pictures. The First Circuit recently explained that a trial court's admission of animal photos was not an error when accompanied by a limiting instruction from the court as to the proper purpose of the photograph.

In the case, plaintiff Grossmith brought a civil rights complaint against two city police officers who had arrested him for shooting his neighbor's pet dog, a Siberian husky named Kato. The plaintiff alleged he was falsely arrested and maliciously prosecuted by the officers. They filed criminal charges against the plaintiff after arresting him for cruelty to animals and unlawfully killing an animal. The plaintiff was acquitted by the trial court on these criminal charges. He then filed a civil rights complaint against the officers. But he lost at trial when the jury rejected his civil rights claims. He appealed, contending that the trial judge erred in admitting "a photograph of Kato, taken within the last year before the shooting." The plaintiff claimed the photo violated FRE 403 because its probative value was "substantially outweighed by its prejudicial effect, and it distracted the jury from the main issues." Grossmith, 607 F.3d at 279.

The circuit affirmed the trial court's admission of the photo of Kato. As explained by the circuit, the photographs were probative because:

"Grossmith asserted that the defendant [officers]s did not have probable cause to arrest him because he had shot Kato to protect himself, his dog, and his livestock. He testified to the events surrounding the shooting itself and characterized the dog as 'vicious,' 'bloodthirsty,' and looking like a wolf or a coyote. Grossmith also admitted on cross-examination that he had previously said Kato was 'malnourished, flea-bitten, unkempt and that his owner should be prosecuted for animal cruelty.' Grossmith further introduced other witnesses who testified to Kato's appearance, including a neighbor who compared Kato's appearance to that of a wolf or coyote and described an incident in which he drove Kato off his property because the witness was concerned for his children's safety."

Grossman, 607 F.3d at 280.

Because of the plaintiff's allegation about the dog, the photo of Kato :

"was useful to the jury in evaluating the credibility of Grossmith's testimony and that of others. The district court did not abuse its discretion in finding that both parties had made Kato's appearance relevant to the case and admitting the photograph. The image was inconsistent with much of Grossmith's description of the dog, but was consistent with one of the defendant police officer's descriptions. The photograph thus was useful to the jury in evaluating the credibility of Grossmith and other witnesses."

Grossman, 607 F.3d at 280.

Despite the emotional appeal of pet photographs, the trial judge could properly conclude its admission was not unfairly prejudicial under FRE 403. In the circuit's view, this balance was further moved away from a unfair prejudice finding by the court providing a limiting instruction to the jury on its use of the photograph. "[T]he district judge properly and repeatedly instructed the jury that sympathy could not be a basis for the verdict and, further, that the question before them was not whether Grossmith had committed a crime by shooting Kato, but rather whether a reasonable officer would have had probable cause to believe that Grossmith had committed a crime." Grossman, 607 F.3d at 280.

"Cute pictures of animals can ... evoke a wide range of emotions," notes one web site (ChangeYourLifeHacks) that deals with such photographs. "Showing images of animals ... can portray different characteristics; for example, an image of a tiger could show aggressiveness, or laziness, depending on the pose." Although the Grossman court did not describe the nature of the photos of the deceased pet Kato in any detail, the case does provide an example of exercise of special care in using animal or pet photos to ensure that the photo is appropriately used by the jury.