365 F.2d 509 (D.C. Cir. 1966), 19313, Barnes v. United States

Docket Nº:19313.
Citation:365 F.2d 509
Party Name:Robert E. BARNES, Appellant, v. UNITED STATES of America, Appellee.
Case Date:May 03, 1966
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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365 F.2d 509 (D.C. Cir. 1966)

Robert E. BARNES, Appellant,


UNITED STATES of America, Appellee.

No. 19313.

United States Court of Appeals, District of Columbia Circuit.

May 3, 1966

Argued April 22, 1966.

Mr. Boris Haskell, Washington, D.C. (appointed by this court), for appellant.

Mr. Robert S. Brady, Atty., Dept. of Justice, with whom Messrs. David G. Bress, U.S. Atty., Frank Q. Nebeker and Victor W. Caputy, Asst. U.S. Attys., were on the brief, for appellee. Miss Carol Garfiel, Asst. U.S. Atty., also entered an appearance for appellee.

Before PRETTYMAN, Senior Circuit Judge, and FAHY and LEVENTHAL, Circuit Judges.


The appeal is from a conviction of housebreaking, grand larceny and assault. Defendant did not testify; and the case did not present an occasion for introducing evidence of defendant's criminal record. Nevertheless the prosecution, over defense objection, was permitted to introduce in evidence a 'rogues gallery' or 'mug shot' photograph of defendant, conveying to the jury the information that defendant had a police record. This prejudice was not dissipated by some taping placed over some words or figures at the bottom of the photograph. Because the admission of this evidence was prejudicial error we reverse and remand the case for a new trial.

It is so ordered.

A fuller statement of the reasons for reversal will be filed at a later date.

PRETTYMAN, Senior Circuit Judge, dissents, and will file a dissenting opinion at a later date.

Opinions Filed May 27, 1966

LEVENTHAL, Circuit Judge:

This is an appeal from a conviction for housebreaking, grand larceny, and simple assault. The defense was alibi. Appellant did not testify.

Before the trial began, the judge asked about identification of the appellant from a line-up. The prosecutor replied, 'I have no line-up.' When the judge then asked about a witness' identification referred to in the arrest warrant, the prosecutor

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replied, 'I am not going into that.' The judge then expressed his view that a police picture of a defendant could be introduced into evidence, if the witness were coached in advance to avoid a statement that it was a police picture. This ensued:

THE PROSECUTOR: That has been my view.

THE COURT: And I would like somebody to give me a chance to try it out, so that the Court of Appeals can rule.

THE PROSECUTOR: I would like to try it.

DEFENSE COUNSEL: You are going to get it in this case.

THE COURT: If he does it.

And in due course the prosecution, pursuant to its indication before the trial began, introduced police photographs of the appellant and propelled prejudicial error into the trial.

Defense cross-examination of the Government witness who saw the crime and identified appellant in court focused on the identification. Thus, the witness was called upon to explain remarks in the court house the previous day that were open to the construction of reflecting some uncertainty: 'I think that is the man.' Defense counsel brought out that she had initially identified the appellant from photographs shown her by the police immediately after the crime. On redirect, the prosecutor showed the photographs to the witness, who confirmed her identification. The photographs were then introduced into evidence and shown to the jury, over defense objection.

The first photograph of appellant, Government Exhibit 2, is a full-length snapshot of an ordinary nature, and presents no problem. Government Exhibit 3, however, is a typical 'mug shot' from a police department 'rogues' gallery.' It consists of two close-up shots of appellant's face side by side, one full face and one a profile photograph. This exhibit was introduced into evidence and shown to the jury with a wide strip of adhesive tape covering the prison numbers on the bottom half of the photographs. Pieces of paper were placed over the back of both exhibits to cover written material. When Exhibit 2 was shown to the jury, the judge specifically told them that the paper covered up material irrelevant to the case. At the close of his instructions, the trial judge explained to the jury his reluctance to allow them to take the exhibits with them into the jury room because of the danger that one of them might inadvertently remove the covering and see the written material. We think the introduction of the mug shot was substantial and prejudicial error that requires reversal.

It is well-settled law that the criminal record of a defendant may not be introduced into evidence at trial unless the defendant takes the stand or otherwise places his character in issue. 1 A photograph which on its face reveals the existence of such a criminal record is likewise inadmissible when the defendant's character has not been placed in issue. 2

Some courts have held that such pictures may be introduced into evidence where the nature of the photograph is effectively kept from the jury's knowledge. Thus, in a recent Texas decision, 3 the court upheld the admission of a police picture of the defendant where 'all identification marks were removed, and, as far as the jury were able to determine, it might have been taken in a penny arcade.' No such reasoning can justify Government Exhibit 3 in this case. The double-shot picture, with front and profile shots alongside each other, is so familiar,

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from 'wanted' posters in the post office, motion pictures and television, that the inference that the person involved has a criminal record, or has at least been in trouble with the police, is natural, perhaps automatic. The rudimentary tape cover placed over the prison numbers on the photograph, and over the...

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