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Mugshots are not automatically admissible in evidence

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Bill of Rights. (From the public domain.)

Mugshots are not automatically admissible in evidence at criminal trials, as they can substantially interfere with the Constitutional presumption of innocence. Jabari Bishop v. U.S., ___ A.2d ___ (D.C., Nov. 25, 2009).

Bishop confirms: “While recognizing ‘the competing interests involved in the admission of mug shots,’ we have ‘adopted rigid criteria for their admissibility,’ Letsinger v. United States, 402 A.2d 411, 414 (D.C. 1979), through a three prong conjunctive test. For admission of ‘mug shot type’  photographs at trial: 1. The government must have a demonstrable need to introduce the photographs; and 2. The photographs themselves, if shown to the jury, must not imply that the defendant has a prior criminal record; and 3. The manner of introduction at trial must be such that it does not draw particular attention to the source or implications of the photographs. (Kirk) Williams v. United States, 382 A.2d 1, 5 (D.C. 1978) (citing criteria set forth in United States v. Harrington, 490 F.2d 487, 494 (2d Cir. 1973)). We apply the three prong test to the facts of this case, and conclude it was not met.” Bishop.

Bishop overturned Mr. Bishop’s conviction, finding that the above balancing test was thrown out of balance by the judge’s instruction to the jury that plainly said that Mr. Bishop’s police photo was included in the photo array.

Bishop received a lengthy sentence before winning on appeal. This appellate reversal is without prejudice to the prosecution’s proceeding with a retrial against him. Jon Katz.