Dr. Bryan Edelman published an article in The Jury Expert: http://www.thejuryexpert.com/ titled “The impact of graphic injury photographs on liability verdicts and non-economic damage awards.” The issue of photographs and other exhibits often comes up when a defendant objects that the exhibits are” inflammatory and prejudicial.”
FRE 403 says: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or of cumulative evidence.”
Dr. Edelman’s study concluded that photographs of graphic injury have a significant effect on final verdict. He concluded research participants who saw the plaintiff’s injury photographs were significantly more likely to render plaintiff verdicts than participants who did not the photographs. The use of these photographs, offered ostensibly to assist in assessing damages, actually strengthen a somewhat weak plaintiff’s case according to the author. He concluded that his findings indicate that while injury photographs may be relevant for assessing damages, they also appear to spill over and contaminate questions on liability. He believed that the photos also significantly boosted the amount of non-economic damages awarded.
However, other research indicates that some photographs can be so gruesome that jurors become upset at the lawyer displays them. Dr. David Wright and James Goodman – Delahunty published in Psychiatry, Psychology and Law, volume 18 August 2011 entitled “Mock jury decision-making in a civil negligence trial: “The impact of gruesome evidence, injury severity and information processing route.”
They did a mock jury study involving 240 students using one of two visual evidence conditions either neutral or gruesome photographs plus one of two injury conditions, moderate severe and high injury severity. Their findings were:
1. mock jurors who read about a more severely injured plaintiff were more sympathetic towards the plaintiff compared with mock jurors who read about a less severely injured plaintiff
2. Mock jurors exposed to gruesome photographs rated the defendant as significantly more negligent compared with mock jurors exposed to neutral photographs.
The authors also concluded:
“The results of our research and of other researchers suggest that the prejudicial influence of gruesome evidence on decision making occurs at an unconscious level. Jurors appear to be unaware of the extent to which they are susceptible to prejudice as a result of exposure to this type of evidence.”
Experienced lawyers have found that trial lawyers who use graphics generally will be able to educate the jurors on the case facts and issues more easily and persuasively. Action creates interest and therefore animated graphics increase the jurors understanding and retention facts. The question is what exhibits and especially what photographs should be shown were not shown to the jury for the greatest benefit by the plaintiffs’ attorney?
Here are some personal general beliefs based upon experience. Graphic and gruesome injury photographs can offend jurors. They may react with anger as well as revulsion. They will directed at the lawyer who presented the offending material. Some people are far more sensitive to graphic evidence than others and it is sometimes hard to judge in this regard. The best way to find out is by showing them to non-lawyers for their reaction, particularly focus groups.
If photographs or exhibits have the potential to defend but are necessary in the plaintiff’s case there are ways to avoid a negative reaction from the jurors. These include making sure the jury is warmed in advance about the photos or exhibits as well as the necessity for introducing them into evidence. I have put photographs in a folder so that when I pass them around to the jury I tell them that if they do not want to look at they can simply pass the folder along. Exhibits can be covered. Large posters can have a cover sheet. If the exhibit or photo is potentially offensive it should be in the smallest reasonable size and not made large. Keep in mind that curiosity is a common human trait and this approach may enhance interest in the exhibit in a favorable way for which you will not be blamed.
I believe that it is important to carefully sort through the potential photographs, records of injury and injury exhibits only the best. Non-lawyers, not involved in your case, are the best group of people to help you make this selection. I also believe that in major injury and damage cases less is always more. One does not have to emphasize or exaggerate major injuries. In fact, the more left to the imagination of the jurors the better.
This also applies to your own client in my opinion. My severely injured clients would be in the court only for jury selection, perhaps opening statement and then not again in court until they testified. Not only that, but their testimony was always very brief. Their testimony was generally that they were trying hard to get better and doing the best they could in that regard. Somebody else, their family, their friends, or their doctor had the rule of describing the injuries.
In addition to the required skills of advocate the selection of exhibits plays a significantly important role. This is particularly true of liability and damage photographs as well as other she exhibits. This should not be handled casually but should be studied by focus groups as much as the case is studied generally.