Federal Evidence Review

In distribution of cocaine base trial, admitting testimony by a "police officer[ ] indicating that [defendant] had previously crossed paths with law enforcement" and that he "showed the informant a color booking photograph of Johnson prior to conducting the controlled buys" with the defendant; reasoning by analogy that since the circuit previously found in another case that a "brief display of a mug shot to the jury is not reversible error under an abuse of discretion standard ... the brief mention of such a photograph [as occurred in Johnson's case] cannot be reversible under the plain error standard," in United States v. Johnson, 624 F.3d 815 (7th Cir. Oct. 26, 2010) (No. 09-3558)

Applying in evidence cases differing standards of review frequently requires that the court and counsel reason by analogy. The Third Circuit recently considered a case which provides a brief demonstration of how questions of applying differing standards can be resolved by argument by analogy. In the case, defendant Johnson was convicted of the "distribution of cocaine base" as a result of a controlled buy that he participated in. In his appeal of the sentence, the defendant contended, in part, that the trial judge erred under FRE 404(b) by allowing "the Government [to] elicit[ ] testimony from one of the police officers indicating that Johnson had prior contact with law enforcement." For instance, the officer testified that "he was familiar with Johnson from previous 'police-related' encounters" and that he had showed an informant "a color booking photograph of Johnson prior to conducting the controlled buys so that the informant could verify the identity of the target of the investigation." Johnson, 624 F.3d at 822.

The circuit construed the defendant as arguing that this testimony about "police-related encounters" involved the admissibility of Other Act evidence under FRE 404(b). From this point the Circuit considered a set of arguments by analogy. First, the circuit discounted the argument by the government that "the officer's testimony that he knew Johnson from previous 'police-related' conduct was not even necessarily prejudicial as Johnson's contact with the police might have been completely innocent." " This is true," admitted the circuit, but it found this interpretation "unlikely" as the jury would not normally "come to such a conclusion in the context of a criminal trial, especially in light of the officer's reference to Johnson's booking photograph." Johnson, 624 F.3d at 822.

The circuit examined two cases and analyzed them to the defendant's case. The circuit noted one case cited by the defendant, United States v. Owens, 424 F.3d 649, 656-57 (7th Cir. 2005) (admission of evidence that the defendant charged with bank robbery, had previously robbed the same bank branch years earlier). There the admission of a lineup photo taken in the aftermath of the earlier robbery showing the defendant and five other men seated, barefoot, and wearing identical prison jump suits.' But this case was distinguishable from the defendant's case. According to the circuit: " Unlike defendant Johnson's case, Owens involved more than a simple reference to a booking photograph, as the 'photo accompanied the jury into deliberations, where it 'festered as a constant reminder that [the defendant] had at least once before been a prisoner.' In the case the circuit employed an abuse of discretion standard and "we found that the error was not harmless given the relatively limited evidence of the defendant's guilt." Johnson, 624 F.3d at 823.

The circuit then made a direct contrast to another case:

Instead, this case is more analogous to United States v. Simmons, 581 F.3d 582 (7th Cir. 2009). In that case, the Government displayed a mug shot showing the top part of the defendant's bright orange jump suit to the jury during its closing argument. After the defendant objected, the district court ordered the prosecution to take down the photo and proceed. We reviewed the district court's decision for an abuse of discretion and held that because the court corrected the error immediately, the resulting harm was negligible. If the brief display of a mug shot to the jury is not reversible error under an abuse of discretion standard of review, then the brief mention of such a photograph cannot be reversible under the plain error standard.

Johnson, 624 F.3d at 823 (emphasis added) (citing United States v. Simmons, 581 F.3d 582, 588-89 (7th Cir. 2009)(noting that ruling was not dependent on the fact that the average juror may not have been able to tell that the photograph was a mug shot). In light of this reasoning, the circuit affirmed the defendant's conviction.