12 COMES NOW DEFENDANT, and moves the Court for a hearing to determine

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1 6/30/ 8:53:08 AM 16CR IN THE CIRCUIT COURT OF THE STATE OF OREGON 5 FOR THE COUNTY OF LANE 6 STATE OF OREGON, 7 Plaintiff, 8 vs. 9 JEREMY KENT MILUTIN, No. 16CR57594 MOTION TO EXCLUDE OR LIMIT PHOTOGRAPHS AND/OR OTHER GRAPHIC EVIDENCE (ORAL ARGUMENT REQUESTED) 10 Defendant COMES NOW DEFENDANT, and moves the Court for a hearing to determine 13 which photographic and/or video evidence and physical evidence the prosecution will be 14 allowed to introduce at trial, and an Order excluding particularly graphic photographs, 15 videos, or physical pieces of evidence. 16 FACTS Defendant is charged with offenses including Murder and Abuse of a Corpse in the Second Degree. The alleged victim's body in this case was found outdoors after some time exposed to the elements as well as wildlife and/or insects. The body was also subjected to an autopsy and pathological examination. These events were documented with pictures as well as video. The defense has received photographs, the content of which is graphic and somewhat disturbing by its very nature. There are items seized as evidence by the State which are also somewhat graphic and/or disturbing. These include items that have bloodstains or are soaked in blood. The State has furnished photograps of these items as well. It is expected the State could offer these photographs, as well as those mentioned above, in addition to the objects that are PAGE I - METROPOLrrAN PI BLIC DEFENDER 400 E. MAIN STREET, SUITE 0 HILLSBORO, OREGON FAX

2 1 actually bloodtstained. To do so would violate defendant's constitutional rights. 2 LAW AND ARGUMENT 3 Admission of bruta! or graphic physical, photographic, or video evidence in this 4 case would violate the Federal Constitution (Amendments V, VI, VIII, and XIV) as 5 well as the Oregon Constitution (Article I, Section 11). 6 The impartial jury guarantee found in Amendment VI of the US Constitution, as 7 well as in Article I, Section 11 of the Oregion Constitution protect a defendant from 8 inflammatory graphic evidence. In State v Amini, the Oregon Supreme Court explained a 9 defendant's right to a fair trial and an impartial and unbiased jury: 10 The state asks us to hold that the guarantee of trial by an impartial jury under Article 1 section 11, controls only the composition of the jury panel at the time that it is ^ ^ impaneled. Once a jury is selected, the state contends, the constitutional guarantee J 2 of trial by an impartial juryhas no further effect. We disagree. It is true that the task of selcting an imparital jurytakes place before the jury is sworn. Nonetheless, this 13 court has recognized that it is possible that a juror, who had been impartial at the poutset, might be subjected to improper influencesor might act during trial in a mannerthat would compromise his or her impartiality. If that were to occur, an. ^ accused would be deprived of the guarantee of trial by an impartila jury under Article I, section W. State v Amini, 331 Or 384, 392 (00). 16 Studies indicate that graphic images from murder scenes have profoundly prejudicial effects on juries. "Mock juror studies reveal that, holding all other evidence constant, the presentation of gruesome photograps of a murder victim (versus no photographs) generally results in more guilty verdicts and greater punitiveness." Salerno, J, & Bottoms, B, Emotional Evidence and Jurors' Judgments: the Promise of Neurposcience for Informing Psychology and Law, Behav. Sci. Law 27: , 277 (09). In one study mock jurors in a murder case were given verbal descriptions of the murder scene, neutral photographs of the murder scene, or gruesome photographs of the murder scene and were asked to render judgments. The results showed that mock jurors who had been shown gruesome photographs of the murder scene believed the prosectuion's evidence waqs stronger (though all three groups were given the same PAGE 2 - METROPOLITAN Pl'BLIC DEFENDER 400 E. MAIN STREET, SUITE 0 HILLSBORO, OREGON FAX

3 1 evidence absent the different photographs) and gruesome photographs "caused the jurors 2 to become angry towards the defendant, and in turn this anger led to an increase in guilty 3 verdicts and evidence sufficiency ratings." Id. Another study found jurors to be more 4 punitive after viewing a color photgraph than they were after viewing the same 5 photograph in black and white. "Because jurors in the two conditions were exposed to the 6 same information (except the color of the photograph) this suggests that the increased 7 punitiveness is prejudicial as opposed to probative." Id. at Connover v State, 933 P2d 904 (97), a case from Oklahoma, provides a useful 9 illustration of how graphic photographic and physical evidence is inadmissible. In 10 Connover, the court found that statements that the victim was "butchered like an animal" 11 and that defendant acted like a "murderous animal" to be imporper. The court stated such 12 graphic and inflammatory statements create an emotional response from the jury, making 13 it less likely that the jury's verdict would be a reasoned moral response to the question of 14 whether thedefendant deserved to die in violation of due process and the 8th Amendment. 15 If statements describing a grisley scene are improper, then actual photographs of the same 16 would not be admissible. In sum, graphic physical and photographic evidence has a profound and prejudicial impact on jurors. In a murder case, the admission of such evidence violates the 5th, 6th, 8th, and 14th Amendments to the US Constitution, as well as Article I, Section 11 of the Oregon Constitution. Brutal or graphic physical, photographic, or video evidence is inadmissible under OEC 401 and 403. OEC 401 provides: "Relevant evidence"means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." PAGE 3 - METROPOLITAN Pl'BLIC DEFENDER 400 V:. MAIN STREET, SUrPE 0 HILLSBORO, OREGON FAX

4 1 Certainly, the State has an interest in proving such things as how the victim died in this 2 case, where the body was found, what injuries were suffered, etc. However, that can all be 3 doen without the introduction of graphic photographs and evidence, or really any 4 photographs at all. Other photographs depict images which are entirely irrelevant in this 5 case - such as scene or autopsy photographs. Color photographs are also not relevalnt as 6 compared to black and white photographs of the same subject matter. A color photograph 7 does not show anything that is not also depicted in a black and white photograph. 8 OEC 403 provides: 9 "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the ^ ^ jury, or by considerations of undue delay or needless presentation of cumulative JI evidence." J ^ As noted above, much of the physical and photographic evidence could be irrelevant. On the other hand, as demonstrated by the studies cited above, graphic photographic or 15 physical evidence is massivel prejudicial. In terms of whether the State should be allowed 16 to introduce color or black and white photographs, the introduction of color photographs adds nothing to the case, but it does inject a level of emnotion and brutality nthat is extreemely prejudicial. CONCLUSION For the foregoing reasons, defendant requests: 1. A hearing to determine the admissibility of each and every photograph or item of evidence the State intends to introduce at this trial. 2. An Order excluding much, if not all, of the graphic photographic and physical evidence in this case. 3. An order rquiring the State to introduce photographs (rather than some items themselves) of some graphic physical items which the court fmds to be admissible. PAGE 4 - MKTROPOLn AN PUBLIC DEFKNDER 400 E. MAIN STRHET, SUITE 0 HIELSBORO, OREGON FAX

5 An Order precluding the State from introducing color photographs of the alleged victim's body, the crime scene, the place her body was located, and physical items associate dwith the State's murder theory DATED this ' day of Greg Scholl, OSB # Attorney for Defendant PAGE 5 - METROPOLII AN PUBLIC DEFENDER 400E. MAIN STREET. SUITE 0 HILLSBORO. OREGON FAX

6 1 2 3 CERTIFICATE OF SERVICE 4 I certify that on VA/l.d\J _, I or a representative of my 5 6 office served the within: MOTION on the attorney of record for plaintiff by electronically serving him a true copy thereof as required by UTCR METROPOLITAN PUBLIC DEFENDERS PAGE 6 - METROPOLITAN PUBLIC DEFENDER 400 E. MAIN STREET, SUITE 0 HILLSBORO. OREGON FAX