People v. Falkner

Williams, J.

(concurring). The Chief Justice has well and comprehensively analyzed the proper rule re examination or cross-examination of any witness regarding prior arrests or charges against such witness which did not result in conviction. I concur completely with his reasoning and result in this the major part of the case, and with the overall result as well.

On the less significant and ad hoc issue of admission of death photographs, I tend to agree with the Chief Justice to the extent I believe that there was some evidentiary redundancy, certainly all the photographs were not necessary. On the other hand, I feel that the prosecutor should be given reasonable latitude within the rules to prove his case. It is true that in this case the circumstances of death were reasonably well proven by oral evidence. However, the prosecutor is under the burden of proving his case beyond a reasonable doubt. If there is any lingering uncertainty that he may not have legitimately made his most persuasive case to the jury, it seems to me the people are entitled to the benefit of the prosecutor’s best judgment, which is, of course, subject to the instant review of the trial judge.

Obviously, the decisions of the trial judge are subject to appellate review. Here where the trial judge’s decision is so necessarily a subjective one and the prosecutor’s judgment likewise circumscribed more by subjective good taste than hard and fast objective standards, and since what evidence is required to make a case may appear very different from hindsight than in the course of the *697trial, I am reluctant in most cases of the admissibility of photographs to upset, after the fact, the judgments of the prosecutor and trial judge on the firing line. As a consequence, I would respectfully disagree to the extent indicated, and I am unable to concur in finding reversible error with respect to the introduction of the photographs.

T. E. Brennan and M. S. Coleman, JJ., concurred with Williams, J.