People v. Rogers

T. G-. Kavanagh, J.

{concurring). I concur in the result reached by my colleagues because the photographs before us were not so gruesome as to be inflammatory. However, in my view, for probative value- of demonstrative, evidence to outweigh preju*217dicial effect more is required than a mere showing of materiality and relevancy. A trial court, to avoid even the risk of unfairness, should demand that a photograph he admitted only after the people establish either that no alternative methods of proof are available or that an issue is so highly controverted as to be incapable of proof through alternative means. In the present case, victim’s identity, proximity of fingerprints and motive were capable of proof through other methods which should have first been exhausted before admission of the photos was considered. Having failed to require exhaustion of alternative proofs prior to admitting the photographs, the trial court abused its discretion. However, these pictures were not so prejudicial that their admission warrants reversal.