The jurors in the present case were carefully and repeatedly instructed in stentorian tones that they were to have no communications with anyone outside of the courtroom, even loved ones at home, about the case. The instruction also forbade discussions among jurors outside the courtroom or jury deliberation room. These instructions were reemphasized when the jurors were permitted to separate overnight during their deliberations. There was no showing that any juror violated the Court's instructions, nor any suggestion of outside influences upon them. To have sequestered these jurors would have exacerbated the hardship of their jury service and we saw no need for it. We thus find the defendant's claim to be without foundation.
VI. The Manner of Presenting Evidence of Out-of-Court Photographic Identification
Defendant Ehly has objected to testimony of out-of-court photographic identifications by Herbert Matlack and Anne Matlack on the ground that we erred in admitting, over objection, the testimony of two F.B.I. agents that the photographs shown to them were in fact of Mr. Ehly. Ehly alleges that this testimony was hearsay because the photographs were not taken by the agents themselves and the statements by the two agents that these were Ehly's photographs were based on what the agents were told by others. Ehly claims further that the prosecution failed to establish the chain of custody of the photographs, thus presenting a clear possibility of multiple hearsay. We disagree.
Although the questioned practice has been followed regularly in this court for many years, the question is an interesting one, on which no precedent has been cited to us. The introduction by the Government in its case-in-chief of evidence of pretrial photographic identifications is a practice firmly countenanced by our Court of Appeals. In United States v. Hines, 470 F.2d 225, 228 (3d Cir. 1972), the Court recognized that reference to out-of-court identifications to buttress in-court identifications " 'has been a proper and strategically sound tactic for years, '" quoting from United States v. Clemons, 144 U.S. App. D.C. 235, 445 F.2d 711 (D.C. Cir.), cert. denied, 404 U.S. 956, 30 L. Ed. 2d 273, 92 S. Ct. 322 (1971). The Court also cited with approval the Supreme Court's recognition of the strong probative value of pretrial identifications, see Gilbert v. California, 388 U.S. 263, 272 n. 3, 18 L. Ed. 2d 1178, 87 S. Ct. 1951 (1967).
Defendant does not challenge the admissibility of the prior identification of his photographs as such,
but rather the hearsay element inherent in the process of proof. More specifically, Mr. Matlack and F.B.I. Agent Richard Schwein testified that on September 11, 1973, Mr. Matlack identified a photograph as that of a perpetrator of the crime, and to link up this testimony to a relevant issue in this case, namely the question whether the perpetrator of the crime was the defendant Douglas Ehly, we allowed Agent Schwein to testify that the photograph selected by Mr. Matlack was a photograph of Douglas Ehly. Similarly, both Anne Matlack and F.B.I. Agent Michael Boyle testified that at a photospread on July 25, 1973, she selected a photograph; we allowed Agent Boyle to testify that it was a photograph of Ehly. Ehly however disputes that Schwein and Boyle were competent to identify the photographs because (a) they had no personal knowledge that the photographs were Ehly's, and (b) the basis for their testimony was hearsay, that is, they were told that the photographs were Ehly's, either by other law enforcement officers or by the writing on the photographs which stated Ehly's name.
In the ordinary case, the only way the Government could have deterred the defendant from making a hearsay objection would have been to put on the stand either the police technician who made the photographs (who would have the necessary personal knowledge) or the custodian of the photographs (who could identify the photographs as business records, bringing them within the business record exception to the hearsay rule). Either method would clearly suggest to the jury that the defendant had been in trouble with the law, in violation of the principle of United States v. Stirone, 262 F.2d 571 (3d Cir. 1959), rev'd on other grounds, 361 U.S. 212, 4 L. Ed. 2d 252, 80 S. Ct. 270 (1960), that evidence of other offenses is generally inadmissible in a criminal prosecution. As a corollary of that principle, great pains must be taken to avoid making the jury aware that the photographs used for pretrial identifications are "mugshots."
We did so here.
In essence, therefore, the defendant, by his argument, was trying to exclude the two pretrial identifications altogether by catching the Government in a pincers between the hearsay rule and the mugshot rule. We do not agree with such a result, either in general or under the facts of this case where the defendant sought to invoke the hearsay rule after having himself shown to the jury the mugshot identified by Anne Matlack to take advantage of Mrs. Matlack's misidentification and Mr. Matlack's prior failure to identify at the July 25 photospread session.
Our overriding concern in conducting a trial is seeing that the jury is presented with all available evidence that is probative but not unduly prejudicial. The hearsay rule goes to the probative value of evidence; the mugshot rule to prejudice. We have already explained (see note 18) how the prejudice was minimized by the manner in which the photographs were referred to and the cautionary instruction to the jury.
We shall next see that the probative value was strong despite the partial hearsay nature of the identification of the photographs as being the defendant's.
In the first place, the agents' testimony was not, as defendant asserts, based entirely on hearsay. At the time of the trial, Agents Schwein and Boyle of course were familiar with Ehly. They therefore were competent to express the opinion
that the photographs were Ehly's, independent of the source of, or identifying marks on, the photographs. Similarly, since the jury saw one of the photographs, it could judge for itself whose picture it was, having had ample opportunity to observe the defendant in person during the trial.
In an additional effort to ensure the trustworthiness of the testimony in question, the Government showed, out of the presence of the jury, that the photographs were in fact law enforcement agencies' photographs bearing the defendant's name. While this is of course hearsay, we believe that the focus of the hearsay rule and its exceptions is the trustworthiness, the reliability of the out-of-court declaration. Thus we were more interested in the truth or falsity of the declaration that these were Ehly's pictures than in the mechanical application of a rule of evidence. All the other indications that the pictures were Ehly's were certainly sufficient to bring the declaration within the Supreme Court's proposed catchall hearsay exception, see proposed Federal Rules of Evidence, rule 803(24): "A statement not specifically covered by any of the foregoing exceptions but having comparable circumstantial guarantees of trustworthiness" is not excluded by the hearsay rule.
However, we do not rest our decision upon the proposed rule. The Third Circuit has itself, in Hines, indicated its own disinclination, in the context of the mugshot rule, to adopt " 'a mechanical jurisprudence, with evidence admitted if it can be fit within a recognized exception.' or excluded if it cannot be regardless of its prejudicial nature or probative value." 470 F.2d at 228, quoting from C. Wright, Federal Practice and Procedure § 410, at 132 (1969). The Court in that case preferred a balancing technique, where the degree of prejudice is measured against the probative value of the offered evidence. To hold to the contrary and to apply a mechanical hearsay doctrine would totally emasculate the principles of Clemons and Gilbert, as reiterated in Hines, and virtually immunize a defendant from the effect of pretrial photospread identifications.
This case was an even stronger one for letting the evidence in than Hines, because we were not dealing with prejudicial effects at all, but rather only with a hearsay challenge to the probative value of the evidence. The agents were available for cross-examination as to the accuracy of their statements that the photographs were photographs of Ehly. Such cross examination could have been heard as on voir dire, out of the hearing of the jury. This fact further saps the strength of the hearsay objection. Moreover we also note that the defendant does not claim that the photographs selected by Anne and Herbert Matlack were not his photographs.
Rather, the nature of his objection is a purely technical one, going to the technical admissibility of certain evidence of essentially uncontested accuracy.
Accordingly, weighing the strong probative value of the pretrial identification as recognized in Hines, and the importance of the identification issue, which was the only issue in the case, and the substantial trustworthiness of the identity of the photographs' subject, we admitted the evidence despite its partial basis in hearsay. Upon careful consideration, we reaffirm that ruling.
Finding merit in none of the defendant's contentions, we will deny his motion for arrest of judgment or a new trial.
AND NOW, this 26th day of June 1974, it is ORDERED that the motion of defendant DOUGLAS EMIL EHLY for arrest of judgment or, in the alternative, a new trial, is DENIED.