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The Champion

April 2016 , Page 22 

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Using Science to Challenge Gruesome Evidence

By Jules Epstein and Suzanne Mannes

Defense lawyers consistently seek to exclude gruesome evidence, recognizing that in most cases it has little probative value but has the potential to overwhelm and inflame. Yet such legal challenges all too often fail, as judges find precedent supporting their discretionary judgments or simply eyeball the evidence and conclude it to be noninflammatory. It is time for science to be deployed to inform Rule 403 determinations of “unfair prejudice.”

When confronted with “gruesome” evidence, often autopsy photos or images of severe injuries, judges must assess whether there is a risk of unfair prejudice or misleading the jury and then, if the risk is present, judges “may” exclude the proof.1 Yet there is no court-dictated workable metric for assessing when either risk is present beyond boilerplate terminology, such as whether the “[e]vidence . . . makes a conviction more likely because it provokes an emotional response in the jury or otherwise tends to affect adversely the j

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