Appendix E -8 Prosecution's Motion to Admit Gruesome Photographs in Sentencing Hearing

• Library: How to Try a Murder Case: Pretrial and Trial Guidelines for Prosecution and Defense (ABA) (2011 Ed.)

APPENDIX E-8 Prosecution's Motion to Admit Gruesome Photographs in Sentencing Hearing

This is an example of the State's motion to admit graphic photographs of portions of the victims' bodies in the penalty phase of the murder trial. This motion was used in State of Utah v. John Pin-der.¹Mr. Pinder blew up the two bodies of his victims using high explosives, leaving small body parts scattered over a large area of his ranch. The Pinder case became an episode on the A&E network's City Confidential. While this motion is state specific, the motion does cite cases from other jurisdictions.

Photographic Evidence Which Was Excluded or Not Offered in the Guilt Phase May Be Admissible in the Penalty Phase

In determining admissibility of the proffered photographs, it is important to note the distinction between the guilt and penalty phases of the trial. After determining guilt, in the penalty phase, "[w]hat is essential is that the [sentencing authority] have before it all possible relevant information about the individual defendant whose fate it must determine." State v. Wood, 648 P.2d 71 (Utah 1982) (quoting Jurek v. Texas, 428 U.S. 262, 276 (1976)). Consequently, relevant evidence includes that which makes clear, not defendant's guilt or non-guilt, but the "nature and circumstances of the crime" or "the defendant's character." Utah Code Ann. §76-3-207(2). However, these are precisely the categories of evidence that the Rules of Evidence exclude from the guilt phase, and therefore, should necessarily be admitted in the penalty phase.

It is the function of the bifurcated procedure to admit in the penalty phase evidence that is inadmissible in the guilt phase, including evidence which is not admissible during the guilt phase because it is potentially unfairly prejudicial. See Gregg v. Georgia, 428 U.S. 153, 190-91 (1976) ("Much of the information that is relevant to the sentencing decision may have no relevance to the question of guilt, or may even be extremely prejudicial to a fair determination of that question"); State v. Brown, 607 P.2d 261, 271 (Utah 1980) (State must use scrupulous care when offering evidence in the penalty phase that would not be admissible in the guilt phase); Shell v. State, 554 So. 2d 887, 902 (Miss. 1989) (five autopsy photographs excluded from guilt phase as unfairly prejudicial held admissible in penalty phase), cert. granted, reversed on other grounds, 498 U.S. 1 (1990). In Shell, the court stated "that a bifurcated trial was necessary...