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Hamilton v. Oppen12/4/2002
rant exclusion under Rule 403. Virtually all evidence is prejudicial to one party or another. To justify exclusion under Rule 403, the prejudice must be unfair." 2 Jack B. Weinstein and Margaret A. Berger, Weinstein's Federal Evidence § 403.04 , p. 403-33 (2002) (footnotes omitted). Evidence that is unfairly prejudicial is evidence that is designed to elicit a response from jurors that is not justified by the evidence. Id. at § 403.04 . Under Rule 403, evidence may be excluded if its probative value is "substantially outweighed by the danger of unfair prejudice."
The trial court's reason for excluding all the photographs of Hamilton's injuries was: "It is my opinion that the photographs do not depict pain and suffering. They depict blood and gore which is highly prejudicial to the defendant in this case." The trial court never explained how these photographs created "unfair prejudice." It presumed a photograph depicting "blood and gore" was "unfairly" prejudicial. As the majority states at 22: "Even gruesome pictures are admissible for a proper proof purpose." (citation omitted). Gruesome photographic evidence of injuries is not, per se, inadmissible. " f photographs are otherwise admissible for a proper purpose, they are not rendered inadmissible merely because they bring vividly to the jurors the details of a gruesome or shocking accident . . . even though they may tend to arouse the passion or prejudice of the jurors." 29A Am. Jur. 2d Evidence § 963 (1994).
The test for determining whether a photograph may be shown to the jury is whether the photograph's probative value is substantially outweighed by the danger of unfair prejudice. Considering the probative value of the photographs and the philosophy behind Rule 403, the trial court could have limited the evidence to one or two photographs. Furthermore, the trial court could use other safeguards including the standard jury instruction admonishing " our decision must not be influenced by sympathy or emotion." N.D.J.I. Civ. No. C-85.15 (1999).
The average juror today has been exposed to a great deal of "blood and gore" through television, the media, and movies. The conclusion that the probative value of one or two photographs of the injuries sustained by Hamilton was "substantially outweighed by the danger of unfair prejudice" is not supported by reason. Pain is suffered from the time of the injury . The photographs in this case, taken in the hospital, were clearly probative of the seriousness of Hamilton's injuries, and the pain, emotion, fear, and mental anguish suffered by him at the time the injuries were sustained. I am of the opinion the trial court abused its discretion when it excluded all of the photographs of the injuries sustained by Hamilton. However, because the jury returned a verdict determining Hamilton was more than 49 percent at fault for his injuries, the jury never reached the issue of damages. Because there is no ground for granting a new trial on liability, the trial court's error is harmless error in this case.
Mary Muehlen Maring
VandeWalle, Chief Justice, concurring in the result.
The juror affidavits raise some doubt in my mind as to the possibility of a quotient verdict, but I agree the affidavits are not conclusive on the issue. Rule 59(b)(2), N.D.R.Civ.P., allows the use of juror affidavits to show an improper quotient verdict. This rule distinguishes the procedure from that recommended in Praus v. Mack, 2001 ND 80, 57 n.2, 626 N.W.2d 239 and Andrews v. O'Hearn, 387 N.W.2d 716, 734 n.26 (N.D. 1986), in which the court suggested that when juror misconduct is discovered, investigation should cease and the matter should be presented to the court to av
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