# State v. Bickart

> Supreme Judicial Court of Maine · January 20, 2009 · 963 A.2d 183

URL: https://www.frixlaw.com/law-library/cases/4964124

## Case

- **Full name:** STATE of Maine v. Tina BICKART
- **Court:** Supreme Judicial Court of Maine
- **Decided:** January 20, 2009
- **Citations:** 963 A.2d 183; 2009 ME 7; 2009 Me. LEXIS 7
- **Precedential status:** Published
- **Opinion:** Dissent by Clifford
- **Judges:** Alexander, Clifford, Gorman, Levy, Mead, Saufley
- **Cited by:** 20 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4964124

## Opinion text

CLIFFORD, J.,
with whom MEAD, J., joins,
dissenting.
[¶ 48] I disagree with the Court’s conclusion that the graphic and lurid naked photographs of Tina Bickart offered by the State and admitted in evidence had substantial probative value. In my view, pursuant to M.R. Evid. 403, any probative value the photographs did have was substantially outweighed by the unfair prejudice to Bickart. Accordingly, I respectfully dissent.
[¶ 49] I agree that the fact the photographs were admitted to prove — that Bic-kart and her husband routinely took pictures of their sexual activity — was very relevant in the unique circumstances of this case, involving, as it did, sexual activity with a very young child and taking pictures of that activity. That Bickart and her husband took sexual photos of themselves, however, could easily have been established in a much less prejudicial way by any number of witnesses, and without the admission of the photographs themselves. Stephen Bickart could and did testify that he and his wife often took photos of their sexual activities. Other, more neutral witnesses also could have testified about the existence of these photos, including the number and the nature of them.
[¶ 50] It is the photographs themselves, of a naked Bickart in lurid sexual poses, that in my view are extremely prejudicial. This case is similar to that of State v. Thongsavanh, in which we reviewed the admission in evidence of a t-shirt bearing a particularly offensive and sacrilegious phrase worn by the defendant the night the crime was committed. 2004 *196 ME 126, ¶ 8 , 861 A.2d 39, 40 . The shirt was admitted ostensibly for the purpose of helping witnesses to place the defendant at certain locations during the night of the crime, and to show that the defendant handed over to police a different shirt than the offensive shirt when he was asked for the clothing he had worn on the night in question. Id. We noted that disclosure of the phrase on the t-shirt “presented an extremely high danger of unfair prejudice.” Id. ¶ 8, 861 A.2d at 42 . We thus vacated the conviction because the only legitimate and relevant purpose for which the State sought admission of the t-shirt could have been accomplished by the State without disclosure of the highly prejudicial statement on the t-shirt itself. Id. ¶¶ 9-10, 861 A.2d at 42 .
[¶ 51] Although Bickart’s habit or routine of taking photos of her sexual activities could have only been established by Stephen Bickart, the existence of the pictures, and their nature, could easily have been testified to by any number of neutral witnesses without the admission and distribution of the photos themselves to the jury. The State overreached in convincing the court to admit the actual photographs. The admission of the lurid photographs of a completely nude Bickart in sexual poses was unnecessary and highly prejudicial. Those photos stripped away her dignity as she sat before the jury, and compromised the presumption of innocence protection to which she was entitled. See id. ¶ 10, 861 A.2d at 42 (“When a jury begins a trial with a deep antipathy for the defendant, it is difficult to ensure a fair trial.”). When viewed in that context, the unfair prejudice to Bickart far exceeds any probative value the photos might have had, and presents a problem similar to that addressed in Thongsavanh. Pursuant to Rule 403, the photos should have been excluded, and because of the serious prejudice the admission of the photos created, that error cannot be said to be harmless.
[¶ 52] I would vacate the conviction.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4964124. Public record. Not legal advice.