Page:BERRY V. STATE.pdf/8

Rh Finally, after issuing these warnings, the Washington court found reversible error where the state introduced four autopsy photographs of the victim's head to show the force of the blows administered by the defendant along with other autopsy photographs and a photograph of the victim's body on the waterbed where it was found. State v. Sargent, 40 Wash. App. 340, 698 P.2d 598 (1985). In that situation, the Washington court found the prejudicial effect outweighed any probative value the photographs could have.

In State v. Banks, 564 S.W.2d 947 (Tenn. 1978), the Tennessee Supreme Court discussed the factors to be considered by the trial judge when inherently prejudicial photographs are offered:

"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. 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. People v. Chavez, 50 Cal.2d 778, 329 P.2d 907 (1958); Poe v. Commonwealth, Ky. App., 301 S.W.2d 900 (1957). Failure of the defense to dispute the testimony that the photographs illustrate may have the same effect. People v. Falkner, 389 Mich. 682, 209 N.W.2d 193 (1973); State v. Bucanis, 26 N.J. 45, 138 A.2d 739 (1958)."

"In some cases, photographic evidence has been excluded because it does not add anything to the testimonial descriptions of the injuries. Archina v. People, 135 Colo. 8, 307 P.2d 1083 (en banc, 1957); Dyken v. State, Fla., 89 So.2d 866 (en banc, 1956); State v. Morgan, 211 La. 572,"