stating that “there is no per se rule against use of ‘mugshots’ as a method of identification. The use of any photograph during an identification procedure is analyzed under facts and circumstances of each particular use.”
How later courts described this case
- stating that “there is no per se rule against use of ‘mugshots’ as a method of identification. The use of any photograph during an identification procedure is analyzed under facts and circumstances of each particular use.”
- concurring opinion filed by Hutchinson, J.; Larsen, J. concurred in the result; Flaherty, J. filed a dissenting opinion in which Nix, C.J. and Zappala, J., joined
- may be error where mug shots were actually given to jury
Written by the judges who cited it.
The opinion
HUTCHINSON, Justice,
concurring.
I join the opinion announcing the judgment of the Court in its determination that the identification procedure used by the police was proper.
I concur in the result only, however, in regard to the jury’s viewing the array of police file photographs. On the facts of this case, I am persuaded that use of the photographs as evidence, including showing them to the jury, was not reversible error. Indeed, at trial, defense counsel alluded to the photographs in her closing argument and suggested that they be sent out with the jury. 1 N.T. November 22, 1982 (Partial Transcript), at 25.
I do not equate the use of police file photographs as demonstrative evidence with the fact that arrest and indictment are not evidence of guilt or with the accused person’s right to remain silent. These latter are fundamental aspects of our system of justice. The prosecution has no such fundamental right to the introduction and admission of police photographs into evidence. Nor would I equate the prejudice inherent in improperly presented photographs with the lesser prejudice which may be inherent in the testimony of an expert or other witness whose profession may give an appearance of greater credibility to the witness’s testimony.
I agree that police file photographs are necessary for the detection of crime. A determination of whether use of *164 these photographs is prejudicial must be based upon an analysis of the individual case. Commonwealth v. Allen, 448 Pa. 177 , 292 A.2d 373 (1972). I do not agree that an instruction to the jury is sufficient in all cases to cure any possible prejudice.
The opinion announcing the judgment of the Court does not explicitly disapprove Allen , wherein this Court held:
[A]fter the reference to a photograph the controlling question is whether or not a juror could reasonably infer from the facts presented that the accused had engaged in prior criminal activity.
... Once it is determined that a jury could reasonably conclude from the photographic reference prior criminal activity on the part of the defendant prejudicial error has been committed.
448 Pa. at 181-82 , 292 A.2d at 375 . It appears, to me, however, that Mr. Justice McDermott implies that an instruction to the jury, when requested by defense counsel, is always sufficient to ensure that the jury will not make any impermissible inferences. .
I believe we must examine the facts and circumstances of the given case to determine whether a defendant has been so prejudiced by the use of police file photographs that a mistrial is necessary. A per se rule on this problem is not appropriate.
. The photographs were not sent out with the jury.