Power of a picture Victims' photos: Banning them in court would upset the balance of justice.

November 02, 1995

THE IMPENDING high court ruling in Maryland on allowing victims' photos in trials cries for balance -- a careful weighing of the need for verdicts based on reason, not emotion, versus the victim's right to an identity.

There is no question that some prosecutors have misused pictures of victims to inflame juries, to make their desire for retribution overtake their responsibility to consider the evidence. The Frederick County case now before the Court of Appeals is a good example. Prosecutors showed the father of an 11-year-old drunken driving victim pictures of his son in his Little League uniform, knowing he probably would break down on the stand and that jurors would be upset by this heart-wrenching image. They used the father's grief to help secure a conviction that should have been based on facts alone. As a result, that conviction was overturned by the state's second highest court.

While the Court of Appeals should uphold that decision, a blanket prohibition against using victims' photos in trials would be a mistake. In some cases such photos provide relevant information; for instance, juries might find it useful to compare what a beating victim looked like before and after the attack. The real controversy, however, involves pictures whose sole purpose lies in showing the jury what the victim looked like. Defense attorneys argue quite correctly that whether the victim was a cute Cub Scout or a bright-eyed honor student has nothing to do with whether the defendant did the crime. Technically, the identity of the victim should be a moot point.

And yet, fairness demands that victims not be dehumanized in the process of a trial. Why? Because jurors see the defendant in the flesh, a fact which tends to tip the scales in his favor. They see him largely as the defense wishes them to see him -- cleaned up, wearing a nice suit, putting on his best face. They hear his voice. Perhaps they watch him cry. The closer the jury gets to him, the better his chances -- especially if the victim is no more than a faceless statistic. A trial becomes more fair -- not less -- when the jury counterbalances the impact of the defendant's physical presence with a sense of who the victim was. A picture is an invaluable tool in that regard.

Questions about how such pictures should be used are best left to the discretion of judges. There is a big difference between exploiting a photo and presenting it as evidence that a real person suffered or lost his life.

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