• Generally, this Court has disapproved of the use of “mug shots” out of concern that jurors may infer criminal history from the photographs.
Ratcliffe v. State, 553 N.E.2d 1208, 1210 (Ind. 1990)(citing Beadin v. State, 533 N.E.2d 144, 146 (Ind. 1989))(“This Court has traditionally disapproved the use of ‘mug shots’ out of concern that jurors may infer a criminal history from the photographs.”)
See Lowery v. State, 640 N.E.2d 1031, 1039 (Ind. 1994), reh’g denied, cert. denied, 516 U.S. 992 (1995)(citing Ratcliffe v. State, 553 N.E.2d 1208, 1210 (Ind. 1990))(“Generally, we disdain the use of mug shots at trial for the very reason [the defendant] complains of here. A jury might infer that a defendant[,] who is well-known to the police, as a mug shot could demonstrate, has a criminal background.”)
Cf. Wheeler v. State, 749 N.E.2d 1111, 1114 (Ind. 2001)(“The typical objection to mug shots is to photographs taken in conjunction with a prior arrest. The usual objection is based on the danger that jurors may infer a criminal history from the pictures.”)
Admissibility: In general
• “Mug shots are not per se inadmissible.”
• [Mug shots] are admissible if (1) they are not unduly prejudicial and (2) they have substantial independent probative value.
See Alvarez v. State, 983 N.E.2d 626, 628 (Ind. Ct. App. 2013), trans. denied(citing Wisehart v. State, 693 N.E.2d 23, 47 (Ind. 1998), reh’g denied, cert denied, 526 U.S. 1040 (1999))(“[O]ur Indiana Supreme Court has held that mug shots are admissible if they are not (1) unduly prejudicial and (2) if they have substantial independent probative value.”)
See also Menifee v. State, 512 N.E.2d 142, 144 (Ind. 1987)(citing Head v. State, 443 N.E.2d 44, 58 (Ind. 1982))(“In order for a mug shot to be admissible, the State must show that the photograph is not unduly prejudicial and that it has substantial evidentiary value independent of other evidence.”)
Admissibility: Whether mug shots are unduly prejudicial
• When the State has made an effort to disguise the nature of the photographs by redacting criminal information and any other information which obviously identifies the photograph as a “mug shot,” the photograph is not unduly prejudicial.
See Andrews v. State, 536 N.E.2d 507, 509-10 (Ind. 1989)(citing Graves v. State, 496 N.E.2d 383, 386 (Ind. 1986), abrogated on other grounds by Fajardo v. State, 859 N.E.2d 1201, 1205 (Ind. 2007)) (“[Mug shots] are not unduly prejudicial if the State has made efforts to disguise the nature of the photographs. To do so, the State is required to make every effort to disguise the ‘mug shot’ by redacting any criminal information, law enforcement insignia, or other information which blatantly identifies the photograph with the criminal justice system.”)
See also Ratcliffe v. State, 553 N.E.2d 1208, 1210 (Ind. 1990)(citing Beadin v. State, 533 N.E.2d 144, 146 (Ind. 1989)) (“The State can also alleviate prejudice from a ‘mug shot’ by disguising the nature of the photograph.”)
• In this case, the State redacted all information which would have identified these photographs as “mug shots.” The photographs contained no name, identification number or other indication of prior arrest.
See Huffman v. State, 543 N.E.2d 360, 370 (Ind. 1989), reh’g denied, cert. denied, 497 U.S. 1011 (1990)(citing Dickson v. State, 520 N.E.2d 101, 105 (Ind. 1988))(“[P]hotographs which bear no name, identification number, or indication of prior arrests do not fall within the classic definition of ‘mug shots.’”)
• [The defendant] concedes that these photographs contained none of the potentially damning features of mug shots, like information about prior criminal charges or nameplates hung around the suspects' necks.
• In this case, the “mug shot” appears to be a Polaroid picture showing a head-on view of [the defendant] and marked only with handwritten notations below the picture; it is not the typical “mug shot” which shows the “well-known frontal and profile view of a person with prison numbers and legend thereon referring to arrests or convictions . . . .” Thus, there is nothing unduly prejudicial about the picture itself.
• Though the pictures do depict the traditional frontal and profile views common to mug shots, the State sought to minimize this effect. The identification information was covered with tape and the background of the photographs does not indicate that the individuals were incarcerated. The court properly admitted the photographs.
• [T]here is no prejudice when other evidence establishes that the photo was taken incident to defendant's arrest, thus negating the implication of a prior criminal record.
• In the case at bar, the “mug shot” did not disclose any prior criminal activity on the part of [the defendant]. It was, in fact, a picture taken at the time of his arrest on the instant charge and was placed in evidence by the State as part of its case that [the defendant] was not so intoxicated at the time as to render his statement inadmissible. A jury naturally would presume that [the defendant] was arrested on the instant charge. Thus there is no jeopardy in showing a photograph of [the defendant] taken at that time.
Cf. Dunsizer v. State, 523 N.E.2d 409, 411 (Ind. 1988)(“In the case at bar, the mug shot which was shown to the jury was the one taken of [the defendant] when he was arrested for the robbery in the instant case. The photograph was put in to demonstrate the appearance of [the defendant] at the time of his arrest. There was no possibility for the jury to conclude it established a prior crime.”)
• [The defendant] contends that the mug shots [of a co-defendant] would allow the jury to suspect that [the defendant] chose to associate with a “convicted felon,” thereby creating “an impermissible ‘guilty by association’ inference.” We disagree. At most the mug shot demonstrates that [the co-defendant], not the defendant, had been previously arrested. The arrest could have been for a misdemeanor, charges may never have been filed, or charges may have been resolved short of a conviction through dismissal or acquittal. . . . The danger of unfair prejudice was minimal, in that the mugshot was not of the defendant himself but merely of one of his codefendants and no mention of a prior arrest or conviction was made to the jury. The trial court did not abuse its discretion by admitting the mug shot of [the defendant’s] codefendant.
Admissibility: Whether mug shots have substantial independent probative value
• [W]hen the perpetrator's identification is at issue, the photographs have probative value.
Farris v. State, 818 N.E.2d 63, 71 (Ind. Ct. App. 2004), trans. denied(quoting Jenkins v. State, 677 N.E.2d 624, 626 (Ind. Ct. App. 1997))(“This court has previously stated that ‘when the perpetrator's identification is at issue, the photographs have probative value.’”)
• [W]e have held that where a defendant fails to appear at trial, the defendant's mug shot has substantial probative value for the purpose of proving identity.
Reference to mug shots
• A verbal reference to “mug shots” is generally proscribed as the use of the term may be prejudicial to a defendant.
• Use of the term “mug shot” is generally prohibited because it may be indicative of prior criminal history.
See Tucker v. State, 646 N.E.2d 972, 977 (Ind. Ct. App. 1995)(citing Fox v. State, 399 N.E.2d 827, 830 (Ind. Ct. App. 1980))(“[R]eferences to police mug shots by the State is improper and in some instances highly prejudicial because of the tendency to cause jurors to suspect that the defendant has a criminal history.”)
• However, the mere mention of “mug shots” is not reversible error per se.
• Reversal is not required if the reference is unintentional or the evidence of guilt is strong.
• [The defendant] argues that a police officer's testimony that the photos were taken from “our” files amounted to telling the jury that the photos were “mug shots.” However, this statement is not an unequivocal reference to “mug shots” such that it was likely to have a significant impact upon the jury. This reference to where the photographs were obtained is insufficient to warrant a mistrial.