                            [J-2-2015][M.O. – Baer, J.]
                   IN THE SUPREME COURT OF PENNSYLVANIA
                               EASTERN DISTRICT


COMMONWEALTH OF PENNSYLVANIA,                 :   No. 692 CAP
                                              :
              Appellee                        :   Appeal from the Judgment of Sentence
                                              :   entered on 12/18/13 in the Court of
                                              :   Common Pleas, Criminal Division of
              v.                              :   York County at No. CP-67-0003547-
                                              :   2012
ARIC SHAYNE WOODARD,                          :
                                              :
              Appellant                       :   ARGUED: March 6, 2015




                                 DISSENTING OPINION


MR. CHIEF JUSTICE SAYLOR                                DECIDED: December 3, 2015


       I respectfully differ with the majority’s conclusions that the autopsy photographs

of the body of the child victim were not inflammatory, as well as with its approval of the

trial court’s decision to admit them. See Majority Opinion, slip op. at 18-19.

       Many jurisdictions, including Pennsylvania, have maintained a very liberal

approach to the admission of photographs of murder victims, affording trial courts wide

discretion and latitude.   See generally BARBARA E. BERGMAN, NANCY HOLLANDER &

THERESA M. DUNCAN, 3 W HARTON’S CRIMINAL EVIDENCE §16.7 (15th ed. 2014). To my

knowledge, however, there are no rational metrics available for the assessment; rather,

the analysis generally proceeds in the form of a series of rather abstract and conclusory

pronouncements. Cf. KENNETH W. GRAHAM, JR., 22A FED. PRAC. & PROC. EVID. §5215

(2d ed. 2015) (alluding to the phenomenon of “ipse dixit cases – those where the judges

tell us that evidence is or is not ‘prejudicial’ and expect us to accept it on nothing more
than the court’s say-so”). Such dispositions are vulnerable to the reasonable criticism

that they are grounded more upon “instinct and folk knowledge” than upon the

psychological impact of graphic photographs upon lay jurors.         Susan A. Bandes &

Jessica M. Salerno, Emotion, Proof and Prejudice: The Cognitive Science of Gruesome

Photos and Victim Impact Statements, 46 ARIZ. ST. L.J. 1003, 1021 (2014). They also

reflect another downside of according largely unbridled discretion to the trial courts, in

that decisions material to the outcomes of individual cases can be made on a widely

disparate basis.        See generally GRAHAM, 22A FED. PRAC. & PROC. EVID. §5212

(discussing long-acknowledged drawbacks associated with broad-scale allocations of

judicial discretion).

       I also note that emerging evidence, derived from psychological studies, suggests

that disturbing photographs of murder victims have a substantial effect on jurors in

terms of fostering anger, shallower mental processing, greater reliance on shortcuts and

stereotypes, and enhanced certainty even in the absence of any material probative

contribution of the photographic evidence in question. See Bandes & Salerno, Emotion,

Proof and Prejudice, 46 ARIZ. ST. L.J. at 1026-27, 1045-48 (citing, inter alia, D.A. Bright

& J. Goodman-Delahunty, Gruesome Evidence and Emotion: Anger, Blame, and Jury

Decision-Making, 30 LAW & HUM. BEHAV. 183 (2006), and Jennifer S. Lerner & Larissa Z.

Tiedens, Portrait of the Angry Decision Maker: How Appraisal Tendencies Shape

Anger’s Influence on Cognition, 19 BEHAV. DECISION MAKING 115, 122 (2006)). Critically,

there also is evidence that the emotional influence “probably operates outside of jurors’

conscious awareness,” id. at 1028, thus raising questions about the ameliorative effect

of limiting instructions issued by trial judges.      The studies suggest a significant

possibility that conventional judicial attitudes concerning the degree of impact of graphic

depictions of death upon decision-making by lay jurors may be misplaced.


                               [J-2-2015][M.O. – Baer, J.] - 2
        While       obviously   decisions   about   admissibility   may   depend   upon   the

individualized case circumstances, particularly in light of the uncertainties and emerging

evidence, I believe that appellate courts should impose some constraints upon the

introduction of graphic photographs into the courtroom. Accord State v. Collins, 986

S.W.2d 13, 21 (Tenn. Crim. App. 1998) (“There is an increasing concern that courts are

becoming too liberal in their admission of inflammatory autopsy photographs[.]”). See

generally Hon. Richard M. Markus, A Better Standard for Reviewing Discretion, 2004

UTAH L. REV. 1279, 1295 (2004) (positing that “[a]n appellate court that clarifies the

boundary of those circumstances [justifying the exercise of discretion] greatly assists

trial courts that must follow its lead”); David P. Leonard, Appellate Review of Evidentiary

Rulings, 70 N.C. L. REV. 1155, 1228-29 (1992) (criticizing the “extreme deference [that]

now defines the relationship of appellate to trial courts in the application of evidence

rules” and advocating a stronger role for the appellate courts in enforcing the values

undergirding such rules).          Moreover, the concern of the trial court presiding at

Appellant’s trial that restraints resulting in the exclusion of some pictures would “reward

a perpetrator” is misplaced, Order of Oct. 9, 2013, in Commonwealth v. Woodard, No.

CP-67-CR-0003547-2012 (C.P. York), since, during criminal trials, courts are bound to

operate under the presumption of innocence relative to the defendant whose liberty or

life is at stake.

        Notably, in Commonwealth v. Walker, 625 Pa. 450, 92 A.3d 766 (2014), this

Court recently retreated from a bright-line evidentiary prohibition in view of emerging

social science in tension with that rule’s underpinnings. See id. at 471-95, 92 A.3d at

779-93. I maintain that greater introspection, on the part of appellate courts, along

these lines is warranted on a broader scale. Accord Commonwealth v. Alicia, 625 Pa.

429, 448, 92 A.3d 753, 765 (2014) (Saylor, J., dissenting) (“Walker, in my view, reflects


                                  [J-2-2015][M.O. – Baer, J.] - 3
an emerging reluctance to adhere reflexively to nineteenth-century conventions and

axioms, amidst growing evidence produced by social and behavioral scientists (among

others) that these may have been precipitous.”).

      In terms of the present case, I begin with the proposition that color photographs

of a nude, battered, open-eyed, deceased child on a slab, encompassing full body

portraits and facial close-ups, should be regarded as inflammatory (or likely to evoke

strong emotional reactions, including generating anger). Accord Collins, 986 S.W.2d at

21 (“[T]he inherent prejudice of admitting color photographs of a bruised, bloodied,

nude, infant victim is apparent.”).1 Such graphic, visceral portrayals of a dead child, in

my view, create an unacceptable risk of influencing jurors to reach conclusions based

on factors other than a strict application of the law to the facts. Furthermore, I fail to

appreciate why Dr. Land’s descriptions of the nature and extent of the injuries would not

have been sufficient absent the graphic facial close-up and full-body photographs.

Indeed, at trial, the pathologist meticulously depicted the injuries suffered by the child-

victim through his verbal testimony, before the autopsy photos were introduced. See


1
   While I recognize that there are decisions of this Court which suggest to the contrary,
from my point of view, the jurisprudence is inconsistent. Compare, e.g., Commonwealth
v. Wade, 480 Pa. 160, 172, 389 A.2d 560, 566 (1978) (rejecting a challenge to the
admission of photographs of a child-victim’s body), with Commonwealth v. Powell, 428
Pa. 275, 279 & n.1, 241 A.2d 119, 121 & n.1 (1968) (alluding to the “emotional impact”
that photographs of a deceased victim’s body “would undoubtedly have on the jury,” to a
degree that limiting instructions were insufficient to alleviate the prejudice). The
variance, I believe, is exacerbated by the wide discretion allocated to trial courts in the
first instance.

Although the Powell decision is distinguishable because there was little probative value
in the photographs in the circumstances presented, the Powell Court obviously
considered the disturbing photographs to be inherently inflammatory; whereas, the
Wade Court pronounced that a set of photographs of a child-victim’s body was “not
inflammatory” in the first instance.


                              [J-2-2015][M.O. – Baer, J.] - 4
N.T., Oct. 22, 2013, at 888-912.2 From my point of view, Dr. Land’s explanation during

the pre-trial proceedings -- that he believed it was “imperative that the jury has the

ability to see what I saw . . . so they can have a better understanding of the totality of

the injuries,” N.T., Oct. 4, 2013, at 33 -- represents little more than the sort of ipse dixit

that should be eschewed by trial and appellate courts. Again, I also regard the trial

court’s additional reward-the-perpetrator rationale as being inconsistent with the

presumption of innocence.

       For the above reasons, I would award a new trial and, accordingly, respectfully

note my dissent.




2
  The main body of Dr. Land’s direct testimony occurred before introduction of the
photographs. Throughout the subsequent publishing of the relevant photographs to the
jury, the pathologist briefly recapped his previous testimony. See id. at 920-26.


                               [J-2-2015][M.O. – Baer, J.] - 5
