CHAPTER 4.II. Sample Motions

• Jurisdiction: United States

II. Sample Motions

A. Motion to Exclude Gruesome Photographs

NO.__________

__________

v.

__________

IN THE DISTRICT COURT

__________ JUDICIAL COURT

__________ COUNTY, TEXAS

Motion to Exclude Gruesome Photographs

Comes now___, Plaintiff in this cause, and file this, his Motion to Exclude Gruesome Photographs, and in support thereof, Plaintiff would show the Court the following:

1. FACTUAL BACKGROUND

This is a personal injury action arising out of an automobile versus pedestrian accident that occurred on January 15, 2019. At the time of the incident, the Plaintiff incurred certain injuries to his left knee and kneecap. Discovery in this action revealed that a bystander by the name of Peter Snapshot took fourteen photographs of the accident scene and eight photographs of Plaintiff's injured knee shortly after the incident occurred.

The subject of this motion relates to three close-up photographs taken of the Plaintiff's injured knee by Mr. Snapshot. Copies of the three photographs are attached hereto as Exhibits "A," "B," and "C" respectively. The Defendant does not object to any other photographs identified by Plaintiff in his list of proposed exhibits, including several other shots of Plaintiff's knee taken at the scene and several post-operation photographs. Note too, that for purposes of this motion, Defendant does not challenge the authenticity of the three disputed photographs but reserves the right to raise this objection at trial.

The Defendant seeks to preclude each of the three photographs, based upon the clearly prejudicial and cumulative nature of this evidence.

2. THIS COURT MAY PRECLUDE PREJUDICIAL OR CUMULATIVE EVIDENCE PURSUANT TO TEXAS RULE OF EVIDENCE 403

Texas Rule of Evidence 403 states: "[a]lthough 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, or needless presentation of cumulative evidence." Brookshire Bros., Ltd. v. Aldridge, 438 S.W.3d 9, 26 (Tex. 2014) (evidence that raises a risk of prejudice and confusion of the jury should be excluded); Farmers Texas County Mutual Insurance Co. v. Pagan, 453 S.W.3d 454, (Tex. App.—Houston [14th Dist.] 2014, no pet.) (evidence should have been excluded where its probative value was outweighed by danger of confusion of issues and misleading jury).

3. GRUESOME PHOTOGRAPHS MAY BE EXCLUDED UNDER A RULE 403 BALANCING

A number of courts have held that gruesome photographs may be excluded where offered for no other purpose but to inflame the emotions of the jury. See Erazo v. State, 144 S.W.3d 487 (Tex. Crim. App. 2004); Thrift v. State, 134 S.W.3d 475, 477 (Tex. App.—Waco 2004), aff'd, 176 S.W.3d 221 (Tex. Crim. App. 2005) (trial court abused discretion in indecency with child case by admitting photographs of other naked and aroused teenagers found at defendant's house where evidence unduly prejudicial and inflammatory); Tidrow v. State, 916 S.W.2d 623 (Tex. App.—Fort Worth 1996, no pet.) (photograph should be excluded if so horrifying or appalling that juror of normal sensitivity would necessarily encounter difficulty rationally deciding critical issues after viewing it).

In the present case, the three disputed photographs show various angles of extreme close-ups of Plaintiff's injured knee. All three photographs are extremely graphic and add nothing of relevance to Plaintiff's case that could not, and presumably will not, be presented by Plaintiff's medical witnesses and other nonobjectionable photographs of Plaintiff's knee.

The only logical purpose for the introduction of this evidence is to inflame the jury's passions in favor of the Plaintiff and against the Defendant. Avoiding such a result is the very purpose underlying the above-described decisions. As such, the Defendant respectfully requests that the evidence be excluded.

4. THE PHOTOGRAPHS SHOULD BE EXCLUDED AS CUMULATIVE OF OTHER EVIDENCE

Cumulative photographs may be excluded where the proponent cannot show how the photographs differ from other evidence. Jones v. State, 111 S.W.3d 600 (Tex. App.—Dallas 2003, pet. ref'd) (gruesome, prejudicial, and cumulative photographs should not have been admitted at sentencing phase); Huckaby v. A.G. Perry & Sons, Inc., 20 S.W.3d 194 (Tex. App.—Texarkana 2000, pet. denied) (exclusion of fifteen...