The State’s effort to introduce photographs of a homicide victim into evidence often is met with defense objections. One objection sometimes asserted is that the photographs are inadmissible as substantive evidence and must be limited to illustrative purposes. This objection likely will be overruled. As a general rule, photographs may be offered as substantive evidence or for illustrative purposes. G.S. 8-97. When admitted for illustrative purposes only, a limiting instruction should be given. See N.C. Pattern Instruction – Criminal 104.50 (photographs, etc. as illustrative evidence). Although many appellate decisions addressing Rule 403 issues with respect to photographs of the victim contain language referencing the use of the photographs for only illustrative purposes, this language seems to refer to the old North Carolina rule limiting the use of photographic evidence to that purpose. With enactment of G.S. 8-97 in 1981, photographs now can be used as substantive or illustrative evidence and our courts have indicated that the statute applies with respect to photographs of a homicide victim. See State v. Rogers, 323 N.C. 658 (1989).
By far the most common response to the State’s attempt to admit photographs of homicide victims is a Rule 403 objection. As a general matter, photographs of a homicide victim are admissible even if “gory, gruesome, horrible or revolting, so long as an excessive number of photographs are not used solely to arouse the passions of the jury.” Rogers, 323 N.C. 658. The North Carolina appellate courts only rarely have held such photographs to be unfairly prejudicial. State v. Robinson, 327 N.C. 346 (1990). Relevant cases include: State v. Hennis, 323 N.C. 279 (1988) (abuse of discretion to admit 35 autopsy and crime scene photographs of murdered mother and children for illustrative purposes, even with a limiting instruction; photographs were displayed on a large screen accommodating two images three feet, ten inches by five feet, six inches, side by side; eight- by ten-inch glossy photographs, most in color, were distributed to jurors one at a time for an hour); State v. Mercer, 275 N.C. 108 (1969) (photographs of victim’s dead body in a funeral home, with projecting probes indicating entry and exit points of bullet; evidence was uncontradicted as to cause of death and showed that victim was lying on a bed when shot; photographs were “poignant and inflammatory”), overruled on other grounds, State v. Caddell, 287 N.C. 266 (1975); State v. Johnson, 298 N.C. 355 (1979) (prejudicial error in sentencing phase of capital trial to admit photographs of the murder victim’s body, two months after his death, in advanced stages of decomposition and after having been partially ravaged and dismembered by animals); and State v. Temple, 302 N.C. 1 (1981) (criticizing admission of photographs of victim’s exhumed body lying in a casket).
On the other hand, cases finding that no abuse of discretion occurred when photographs of the victim were admitted are legion. A small sampling includes: State v. Walters, 357 N.C. 68 (2003) (close-up of murder victim’s face, showing blood on her face and a fly on her eyelid); State v. Haselden, 357 N.C. 1 (2003) (one close-up of the murder victim’s head and two of her body; defendant’s stipulation as to cause of death did not preclude use of the photographs); State v. Early, __ N.C. App. __, 670 S.E.2d 594 (Jan. 6, 2009) (eight autopsy photographs, displayed by monitor, showing location of wounds and whether they were entrance or exit wounds illustrated the manner of the killing and had probative value as to the defendant’s claim of self-defense); State v. Bare, __ N.C. App. __, 669 S.E.2d 882 (Dec. 16, 2008) (photographs of the murder victim’s partially decomposed body including three of the victim’s trunk and lower body, depicting the remains of a fire, mummification and decay of flesh, branches placed over the body, and his pants and shoes; two of a skull and jawbone; four of other bones, all largely devoid of flesh; one of a partially decayed hand; two of the underbrush where the victim was found; photographs illustrated officer’s testimony regarding the condition of the body when it was discovered, including that body had been partially eaten by animals and was missing part of an arm, fingers, and a hand); State v. Snider, 168 N.C. App. 701 (2005) (three autopsy photographs to illustrate the testimony of the medical examiner who testified to location of knife and gunshot wounds and that gunshot wound was the cause of death; photographs were projected onto a screen in the courtroom); State v. Gladden, 168 N.C. App. 548 (2005) (ten autopsy photographs to illustrate the testimony of pathologist; seven were of the victim’s body wrapped in plastic, three were of the victim’s head, with one showing the face; number of photographs was not excessive).
As an aid to the trial judge, or for the litigants when arguing for or against admissibility of this type of evidence, the following factors are relevant to the Rule 403 analysis:
- What the photograph depicts
- The level of detail
- The size of the photograph
- Whether the photograph is in color or in black and white
- Whether the photograph is a slide or a print
- Where and how it is projected or presented
- The scope and clarity of the testimony it illustrates
- The relevance of the scene depicted
- The number of photographs
- Whether the photographs will inflame the passions of the jury
- Whether the photographs are unnecessarily duplicative of other evidence, including other photographs
Hennis, 323 N.C. 279.
