Lock picking

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A traditional set of pin/tumbler lock picks. The two tools on the left are torsion (tension) wrenches. The picks from left to right are: hook pick, half diamond (steep angles), snake rake, half diamond (shallow angles), S-rake pick, double round pick and long double ended pick.

A deadbolt lock that has been picked, showing that the plug has been turned without the key.

CYL2, device used by former Czechoslovakian State Security StB for lock picking and creating duplicates of common pin tumbler locks

Lock picking is the art of unlocking a lock by analyzing and manipulating the components of the lock device without the original key. In addition, ideal lock picking should not damage the lock itself, allowing it to berekeyed for later use, which is especially important with antique locks that would be impossible to replace if destructive entry methods were used. Although lock picking can be associated with criminal intent, it is an essential skill for a locksmith, and is often pursued by law abiding citizens as a useful skill to learn or simply a hobby. The move towards combination locks for high security items such as safes was intended to remove the weakest part of the lock: its keyhole.

In normal situations it is almost always easier to gain access by some means other than lock picking. Most common locks can be quickly and easily opened using a drill, bolt cutters, padlock shim, a bump key, or a hydraulic jack. The hasp, door, or fixture they are attached to can be cut, broken, unscrewed or otherwise removed, windows can be broken, etc. Therefore a lock that offers high resistance to picking does not necessarily make unauthorized access more difficult, but will make surreptitious unauthorized access more difficult. Locks are often used in combination with alarms to provide layered security.

Some people enjoy picking locks recreationally, which may be referred to as locksport. Lock pick kits can be purchased openly via the Internet. Many different selections are present. Nine-piece sets and a 32-piece set equipped with a pick gun (an automated bump key) for example differ in value and price greatly. However, many lock pickers state that for most simple locks, a basic set of five picks (or even a single pick) is enough; therefore it is unnecessary to carry around a wide variety of professional lock picks. Lock picks can also be improvised from common items, or machined at home with relative ease, which is also the case withwarded locks.

The process of picking pin/tumbler and wafer locks is concerned with causing the two sets of pins (upper or driver pins and bottom pins) to separate such that the cylinder will turn. The point at which the pins properly separate when the lock is unlocked is called the shear line. This type represents the vast majority of American and European domestic locks, the UK being an exception where lever locks are generally a requirement for home insurance. A different tool set (such as the Hobbs pick) is required for more complex locks which are not easily fabricated.

Contents   [hide]  1 Tools 1.1 Torsion Wrench 1.2 Half-diamond pick 1.3 Hook pick 1.4 Ball pick 1.5 Rake picks 1.6 Slagel pick 1.7 Decoder pick 1.8 Bump keys 1.9 Warded pick 2 Pick guns 3 Anti-picking methods 4 Legal status 4.1 United States 4.2 Japan 4.3 Canada 4.4 European Union and Switzerland 4.4.1 Netherlands 4.4.2 Poland 4.4.3 Hungary 4.4.4 United Kingdom 4.5 New Zealand 4.6 Australia 5 In popular culture 6 See also 7 References 8 External links

[edit]Tools

[edit]Torsion Wrench

A traditional pickset. From left to right: torsion wrench, "twist-flex" torsion wrench, offset diamond pick, ball pick, half-diamond pick, short hook, medium hook, saw (or "L") rake, snake (or "C") rake.

A lock pick made of an umbrella hinge. Used in a car robbery in Helsinki.

The torsion wrench, often incorrectly called a tension wrench, is used to apply torque to the plug of a lock in order to hold any picked pins in place. Once all pins are picked, the torsion wrench is then used to turn the plug and open the lock. It is typically shaped like a letter "L", although the vertical part of the letter is elongated in comparison to the horizontal part.

Some torsion wrenches, called feather touch wrenches, are coiled into a spring at the bend in the "L", which helps the user apply constant torque. Some users^[who?], however, maintain that such wrenches reduce torque control and the feedback available to the user.

Other torsion tools, especially those for use with cars, resemble a pair of tweezers and allow the user to apply torque to both the top and the bottom of the lock. These would commonly be used with double sided wafer locks.

Also, high tech torsion tools exist which sit over the lock face allowing the user to see a display of the amount of torque applied. This aids with the process of feeling when a pin has set since the tension level will drop suddenly then spike again as the next pin sets.

The torsion tool is just as important as other tools in the set, but is often neglected and is rarely represented in fiction. It is not possible to pick a pin/tumbler or wafer lock without a torsion tool, even with the use of a pick gun.

[edit]Half-diamond pick

Perhaps the most basic and common pick, this versatile pick is included in all kits and is mainly used for picking individual pins, but can also be used for raking and for wafer and disk locks. The half diamond is usually 0.1 to 0.5 inches long. Each of the ends of the triangular half diamond of this pick can be either steep or shallow in angle, depending on the need for picking without affecting neighboring pins, or raking as appropriate. A normal set would comprise around three half diamond picks and a double

[edit]Hook pick

The hook pick is similar to the half diamond pick, but has a hook shaped tip rather than a half diamond shape. The hook pick is sometimes referred to as a feeler or finger and is not used for raking. This is the most basic lock picking tool and is all that a professional will usually need if the lock is to be picked in the traditional sense rather than opened by raking or using a pick gun. A variety of different sized and shaped hooks will be available in a normal set.

[edit]Ball pick

The ball pick is similar to the half-diamond pick, except the end of the pick has a Half or full circle shape. This pick is commonly used to open wafer locks.

[edit]Rake picks

These picks, such as the common snake rake, are designed to rake pins by rapidly sliding the pick past all the pins, repeatedly, in order to bounce the pins until they reach the shear line. This method requires much less skill than picking pins individually, and generally works well on cheaper locks.

When the pins are excited they bounce all around the shear line and with the skilful application of a tension tool this is the easiest way to pick a lock. This is also how beginners start. Advanced rakes are available which are shaped to mimic various different pin height key positions and are considerably easier to use than traditional rakes. Such rakes are typically machined from a template of common key configurations. since not all permutations of pin heights for adjacent pins are possible given the process by which keys are manufactured.

[edit]Slagel pick

The rarely used Slagel pick is mainly used for opening electronic locks. It is often made with small magnetic regions. The Slagel pick is named after James Slagel, a leading security technician for IBM. The Slagel pick works by selectively pulling internal parts of the lock to the correct positions.^{[citation needed]}

[edit]Decoder pick

The decoder pick is a key which has been adapted such that the height of its notches can be changed, either by screwing them into the blade base or by adjusting them from the handle while the key is in the lock. This will allow not only access to the lock but also a template for cutting a replacement key.

[edit]Bump keys

The simplest way to open the majority of pin locks is to insert a key (or variety of keys) which have been cut so that each peak of the key is equal and has been cut down to the lowest groove of the key. This key is then struck sharply with a hammer whilst applying torque. The force of the blow is carried down the length of the key and (operating as does a Newton's Cradle) will force the top pins only to jump above the shear line leaving the bottom pins in place. Some modern high security locks include bumping protection such as false setting pins and impact absorbent foam.

[edit]Warded pick

The warded pick, also known as a skeleton key, is used for opening warded locks. It is generally made to conform to a generalized key shape relatively simpler than the actual key used to open the lock; this simpler shape allows for internal manipulations. The keys for warded locks only require the end section which is the one which actually open the locks. The other parts are there to distinguish between different variation of their locks. I.e if you have a chest of drawers with a warded lock you can make a skeleton key for that type of warded lock by filing away all but the last one or two teeth or bittings on both sides of the blade. Additionally, a series of grooves on either side of the key's blade limit the type of lock the key can slide into. As the key slides into the lock through the keyway, the wards align with the grooves in the key's profile to allow or deny entry into the lock cylinder.

[edit]Pick guns

Main article: Snap gun

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Often seen in movies and in the tool box of locksmiths, manual and electronic pick guns are a popular method used today for quick and easy ways of opening doors. The higher-end electric pick guns are usually made of aircraft aluminum and hard steel. The pick is operated by simply pressing a button that vibrates while the normal tension wrench is being used. A manual pick gun (or Snap gun) is used in a similar way but usually has a trigger that creates a movement which (like bump keys) operates on the same principle as Newton's cradle. It transfers sudden energy to the key pins which communicate this to the driver pins causing those pins only to jump, allowing the cylinder to turn freely for a brief moment, until the pin springs return the pins to their locking position. A pick gun is used in conjunction with a tension tool and the only skill required here is learning the timing.

Manual pick guns come in both up and down varieties and were patented in the 1920s making them a staple of the film noir and detective fiction generally.

[edit]Anti-picking methods

To prevent picking of locks, numerous methods have been employed throughout history, in addition to locks which must be reset using a master key if they have been tampered with e.g. the Chubb detector lock. There are many sophisticated methods to break most locking systems.^[1]

Today, anti-picking methods include the use of side wards which obstruct the key way and security pins. These are pins which are shaped like a spool, mushroom, or barrel with the effect that they feel as though they have set when in fact they have not. Overcoming these pins involves reverse picking: the process of first setting all pins above the shear line and gradually reducing tension.

[edit]Legal status

[edit]United States

In the United States, laws concerning possession of lock picks vary from state to state. Generally, possession and use of lock picks is considered equivalent to the possession of a crowbar or any other tool that may or may not be used in a burglary. Illegal possession of lock picks is generally prosecuted as a felony under the category of possession of burglary tools or similar statutes. In many states, simple possession is completely legal as their statutes require proof of intent.

In California, locksmiths must be licensed by the state.^[2] However possession by laymen may be legal in most states. This is the case because illegal possession must be coupled with felonious or malicious intent.^[3] This is also the case in Utah,^[4] Massachusetts, Maine, New Hampshire, Washington State, Washington D.C.,^{[citation needed]} New York, and Arizona.^[5]

[edit]Japan

Japan's law prohibits possession of any lock picking tools and carries a penalty of one year imprisonment or a 500,000 yen fine.^[6]

[edit]Canada

In Canada, possession of lock picking tools, with the exception of key duplication tools, is legal. Lock pick tools fit in the same category as crowbars or hammers, meaning they are legal to possess and use unless they are used to commit a crime or if it is shown there was "intention to commit a crime" in which case "Possession of tools with the intention of committing a crime" applies, which carries a maximum penalty of 10 years in prison.^[7] Some provinces require a license to carry lock picks.^[8] Unlike most laws in Canada, the onus is on the defendant to prove that they have a legal purpose to use the lock picks. The Government is not required to prove that the defendant has an unlawful or malicious intent.^[7]

[edit]European Union and Switzerland

Most countries of the European Union do not regulate the possession of lock picks. All responsibility concerning criminal or legal acts using the picks is taken by the user of the lock picks, while the owner of the lock picks may be involved in the jurisdiction or legal process as an accomplice or witness.

[edit]Netherlands

In the Netherlands, owning lock picks is legal, but using them on someone else's locks without permission is not. There is a lock picking championship, the Dutch Open (organised by TOOOL), which started in 2002 and features competitors from around the world. The competition is held during LockCon, an annual conference about locks.^[9][10]

[edit]Poland

In Poland according to Article 129/1 of the Criminal Code:

1. possessing, producing or obtaining a lock pick by a person whose profession and occupation does not require it;
2. delivering a lock pick to a person whose profession and occupation does not require it;

is punishable with arrest, freedom limitation or fine. Paragraph 3 says that a lock pick is forfeited even if it was not the property of the principal.

[edit]Hungary

Unusually for a European Union country, ownership of lock picks in Hungary is completely prohibited, even for professional locksmiths. Lock picks are classified as military equipment, and may only be legally obtained or used by Hungary's armed forces.

[edit]United Kingdom

In the United Kingdom, a person who carries a lock pick set (even a homemade one) with the intent to commit theft can potentially be prosecuted.^[11] The penalty for this can be up to 3 years imprisonment. However, lock picks may be held at home, and can be carried if there is no intent to use in a "burglary, theft or cheat".^[12]

[edit]New Zealand

In New Zealand lock picking tools are not illegal, but possession with the intent to use them for burglary carries a potential penalty of three years in prison.^[13]

[edit]Australia

In Australia possession of lock picking equipment is illegal in New South Wales, Queensland and Western Australia without a valid locksmith license.^[14]

[edit]In popular culture

When lock picking is shown in films and television shows, the torsion wrench is almost always omitted. Picking a pin and tumbler lock without torsion is impossible unless the lock was nonfunctional to begin with, as the pins only prevent the tumbler from being rotated.

In some modern dramas (such as Fox's 24) in which realistic depiction of events is favored, the pick-and-wrench technique is fully shown; albeit often executed in a second or two, which does not accurately reflect the luck involved with raking an unfamiliar lock.

Harry Caul rakes a lock open in The Conversation (1974), and the used tools are clearly visible.

Although there do exist raking tools in which a single element may be used to open a lock (such as automobile tryout keys), these are rarely used in media depictions, and almost as rarely used in real life. The broad width of these picks allows for the necessary application of torque, just as an external source of torque is not required when using a standard key.

In the video game Splinter Cell: Double Agent the player is able to pick locks using a torsion wrench and a hook pick. This is a fairly realistic depiction of how actual lock picking is performed. Alternatively, in the game The Elder Scrolls IV: Oblivion, players pick pin and tumbler locks with varying difficulties; but only the pick is shown. In the Fallout series and The Elder Scrolls V: Skyrim, a pick (a bobby pin in the Fallout series) is shown with a torsion tool: a screwdriver and a dagger, respectively.

Also, in the Thief videogame series, one of the main character's most important tools is a pair of lock picks; which the player, as Garrett the master thief, uses extensively throughout the various missions to open locks. In the first 2 games, the mechanism is simple; with the player alternating between one lock pick and the other until the locks open; while in the third both lock picks are used at the same time in rotating and alternating positions to progressively pick and open the lock mechanism.

[edit]See also

• Hot-wiring
• Physical security
• Safe-cracking
• Security
• Snap gun
• Locksport
• Lock bumping

[edit]References

1. ^ Phillips, Bill. The complete book of locks and locksmithing. 6th ed. New York: McGraw-Hill, 2005. Print
2. ^ "Locksmith Companies and Employees". California Department of Consumer Affairs.
3. ^ "California Penal Codes, Sections 466–469". California Legislative Information.
4. ^ http://le.utah.gov/~code/TITLE76/htm/76_06_020500.htm Utah Criminal Code: Title 76 - Chapter 06 - Section 205
5. ^ "Arizona Revised Statutes Title 13 - Chapter 13 - Section 13-1505". Arizona State Legislature. Retrieved July 10, 2010.
6. ^ "Japan Possession of Lock-picking Tools Act".
7. ^ ^a b "laws.justice.gc.ca/PDF/Statute/C/C-46.pdf" (PDF).
8. ^ "lockpickcanada.com".
9. ^ "Lockpicking". Retrieved 7 February 2013.
10. ^ "Lock pickers hebben slot in paar seconden open", the Leeuwarder Courant, 2002-12-02
    • "Vito Tieke", Even Vragen Aan, the Algemeen Dagblad, 2002-12-02
    • "Duitser kampioen sloten openen", the Sp!ts, probably 2002-12-02
    • "Duitser wordt in Sneek kampioen sloten openen", the Friesch Dagblad, probably 2002-12-02
    • "Duitser eerste kampioen sloten openen in Sneek", the Dagblad van het Noorden, probably 2002-12-02
    • "Sloten openen als nieuwe sport", Dagblad de Limburger, probably 2002-12-02
    Note: the dates of some articles were not available, but considering the fact that newspapers generally report promptly, it can be assumed the given dates are correct. It was also documented on television, in the programs Hart van Nederland and on Omproep Friesland.
11. ^ "Police-information.co.uk legislation index". Retrieved 2006-08-10.
12. ^ "Theft Act 1968". Retrieved 2010-09-05.
13. ^ "New Zealand Crimes Act (1961), Section 223, subsection 1 - Being disguised or in possession of instrument for burglary". Retrieved 2008-03-26.
14. ^ "NSW lock laws picked ahead of Ruxcon".

[edit]External links

• Map detailing locksmith legislation in different states in the U.S.
• MIT Guide to Lock Picking

Teachers' Manual to Green, Nesson & Murray, Problems, Cases and Materials on Evidence, 3^rd Edition.

CHAPTER I: RELEVANCE
Go to:	Teacher's Manual Introduction	Chapter 1 Contents	Next Section

D. Prejudice and Probative Value (50)

Problem - A Picture is Worth a Thousand Words (51)

This problem is also the subject matter of an Evidence Film - People v. Lopinson. Use of the film is highly recommended. The following discussion assumes that you and your students have seen the film that presents this problem. This is a particularly useful film because the class discussion is then aided by the impact that seeing the gory photos had on the students.
The points:
(1) Prejudice is not just something that turns the stomach; it is a legal concept with legal content. The question to be answered when evidence is challenged as "prejudicial" is: Will it affect the ability of the factfinder to follow the judge's instructions on the law?
(2) Emotion has an appropriate role in the trial of a case as long as it propels the jury towards the issues in a case rather than to issues not properly considered by the jury.
Answer and Analysis:
The pictures of the bodies of Joseph Molito and Judith Lopinson are truly obscene. But are they prejudicial? Does seeing the pictures render the viewer less able to decide whether Jack Lopinson hired the gunman or does it simply impress upon the viewer the fact that this is not a television drama: real people really were killed? Our experience is that students' overwhelming reaction is to think that the admission of the photos is prejudicial, but when pressed, to admit that they would not be swayed; their fear is a paternalistic one, that others will be swayed.
Further discussion:
Why did the judge leave it up to the prosecutor to decide whether or not to accept the defendant's stipulation? A defendant in a civil case can limit the issues in controversy (this is the effect of a stipulation) by admitting allegations of the complaint. An example of this principle isFuentes v. Tucker. 31 Cal. 2d 1, 187 P.2d 752 (1947), in which the court held that it was error to allow the plaintiff to introduce evidence of the defendant's intoxication and the circumstances of an accident when liability was clearly conceded. The basis for the court's holding was that when an issue is entirely removed by the pleadings, evidence on it is not merely cumulative, "it is completely irrelevant and there is no room for the exercise of discretion." 187 P.2d at 756. This rule cannot be automatically applied even in a civil case, however. InKrouse v. Graham, 19 Cal. 3d 59, 137 Cal. Rptr. 863, 562 P.2d 1022 (1977), the plaintiff sued for injuries received in a rear-end automobile accident. Defendant admitted liability. Plaintiff called an eyewitness who described how the accident happened and also offered a photograph of the accident scene, properly authenticated by the eyewitness. Defendant's objection on ground of irrelevancy (because the issue of liability was not disputed) was overruled, notwithstanding the F es rule. The theory of admission was that the photograph was independently relevant on the issue of the seriousness of plaintiffs injuries. It tended to show the force, degree and nature of the injury-causing impact and thus was admissible on the disputed issue of damages.
The Krouse case may be used to point out the doctrine of limited admissibility and the use of limiting instructions (FRE 105). It may also be used to point out that Rule 401 does not limit the relevant issue to facts in dispute, as does Cal. Evid. Code § 210, for example. As the Advisory Committee Notes to rule 401 point out, however, exclusion of evidence under Rule 403 may be based on grounds that the evidence is cumulative.
In contrast, a criminal defendant is given the option of only a few very inarticulate responses to his indictment: guilty (which admits everything); not guilty (which denies everything); and not guilty by reason of insanity. The forced inarticulateness of the "not guilty" plea typically leaves the prosecution at liberty to prove each element of the charged offenses, the manner of proof being largely left up to the prosecutor's choice. The reason for this is to allow the prosecutor to present the prosecution's side of the case with moral and emotional force. An extreme example of this is People v. Morrison, 67 Cal. App. 3d 425, 136 Cal. Rptr. 650 (1977), in which defendant was charged with being a felon in possession of a firearm. The information alleged a forgery as the prior felony. Defendant offered to stipulate to the forgery conviction and moved to preclude the prosecution from proving it before the jury as part of its case in chief. Despite Cal. Evid. Code § 210, the court held that defendant could not preclude the prosecution from introducing evidence of the conviction before the jury notwithstanding his offer to stipulate to the forgery conviction. (It is possible that Morrison would come out differently under FRE 403, especially given the Advisory Committee's Note indicating that the judge may consider the availability of other proof in making a Rule 403 determination.)
On the other hand, see Old Chief v. United States, 117 S. Ct. 644 (1997) (54), where the United States Supreme Court held that under certain circumstances the prosecution may not decline a stipulation in lieu of evidence with high prejudicial impact.
In the Lopinson case, Sprague, the prosecutor, has worked out a very careful technique for using the slides, putting on the record the screen size, the lighting conditions, and the length of time the jurors are exposed to the slides. All of this is designed to insulate his showing of the slides from attack on appeal. In fact, the question of the admissibility of the photos in Lopinson was not considered substantial enough by Lopinson's appellate counsel even to be included as an issue on appeal. See Lopinson v. Commonwealth, 427 Pa. 284, 234 A.2d 552 (1967), cert. denied, 411 U.S. 986 (1973).
What foundation was laid for the introduction of the photographs? In the film, the lawyers and judge do a pretty minimal job of it. Dr. Aronson testifies that the pictures are a fair and accurate representation of the condition of Dante's as he saw it on the night of the crime and that the pictures would aid him in his testimony. These two bases for allowing the jury to see the pictures can be highlighted by asking students whether photos of the scene taken by an unmanned security camera could have been used, and if so, what foundation would have been required.
This film is also very useful as a point of departure for discussing how a record is made, how an offer of proof is made, how an objection is made, what occurs at a side-bar conference, how a judge announces his ruling on evidence, and the formality of cleansing instructions.
Some additional questions based on the abortion/manslaughter case, Commonwealth v Edelin, 371 Mass. 497, 359 N.E.2d 4, (1976):
In one of the celebrated cases of the 70's Dr. Kenneth Edelin was prosecuted for manslaughter for performing an abortion. The case arose shortly after Roe v. Wade in which the Supreme Court declared virtually all existing abortion statutes unconstitutional. That decision allowed states to pass constitutional antiabortion laws restricting abortions in the second and third trimesters of pregnancy. In the time after Roe v. Wade and before the states got around to passing such laws, there was apparently no law against abortions. Newman Flanagan, a Boston prosecutor, had the idea of applying the standard manslaughter law to abortion. His theory was that manslaughter is the unjustified killing of another human being, and a fetus is a human being.
The main legal issue in the Edelin case thus became: when does the product of conception become a human being for purposes of the application of the manslaughter law? The trial judge decided that the moment occurs at the instant at which a fetus first breathes outside its mother. Flanagan was embarrassed by this ruling because most of his evidence against Dr. Edelin indicated that the fetus died during the abortion procedure while still in the womb of the mother. There was, however, just enough evidence that the fetus had breathed outside the mother to get the case to jury. (See Problems VIII-8 (834) and the Evidence film, "Edelin, 11th Day").
With this background, consider the following issue of "prejudice." The prosecution wanted to introduce a photograph of the fetus. The photo was an 8" x 10" glossy black and white picture taken by the medical examiner. The fetus was in no way grotesque. The photo showed the fetus to be well formed and well developed. The photo could not, of course, show whether the fetus had breathed outside its mother, but the prosecution did not offer it on that issue. Rather, the prosecution wanted to use the photo to show the jury that indeed there was a fetus, and to identify the fetus as the victim of Dr. Edelin's purported manslaughter. Dr. Edelin did not contest these facts, only the legal conclusions the prosecutor sought to draw from them. The defense objected to the introduction of the photo on grounds of prejudice. Should it have been admitted or excluded?
This problem contrasts nicely with Lopinson. In Lopinson the photos are gruesome but not necessarily prejudicial (though some will certainly argue on this). The argument that the Lopinson photos are not prejudicial is that "prejudice" does not mean disgusting, but rather having some clear tendency to lead jurors away from their duty to weigh the facts in light of the judge's charge on the law. In Lopinson, the photos (at least arguably) had no such tendency. In Edelin, by contrast, the judge's charge will assert that the jurors must determine that the fetus breathed outside its mother as a predicate to being a human being. As hard as that concept is to swallow, it is made much harder by a photo to which the natural reaction is, "That is a little baby." The photo, in other words, will have a tendency to lead the jurors to ignore the judge's instructions about what it takes to be a human being and to substitute their own judgment that the photo showed a baby human being, whether it breathed outside its mother or not.
The following is an example of a closing argument which can be used to show to students the proposition that the function of the concept of prejudice is not to eliminate the effects of emotion but rather to sort illegitimate from legitimate uses of emotion. This is taken from Appleman, Successful Jury Trials 449-451 (1952), but is modified to update the various elements of damage and to ameliorate the sexism in the original. It can be read to students in class by the teacher.
I come before you on behalf of a little child -- one whom the law says cannot be charged with wrongdoing. She cannot know what we do here today; at her age, she cannot realize its significance. Yet in your hands, this day, rests her entire future. She will never have another day in court, another opportunity to appear before a different jury.
All that little Betty knows is that a few short months ago she was running and playing with her playmates, happy and without a care. It is well she did -- she will never run again. This she cannot understand, for it was no fault of hers that brought this about. the law holds children of her age blameless for acts of their own. The law holds her guiltless of any neglect of the driver of the car in which she was riding. The defendant, under the law, was guilty of the most culpable negligence which caused this tragedy-- a violation of our state statutes. A moment's haste, a glance at a stop sign, a failure to stop, a lifetime of tragedy. But we are not here to blame the defendant for that which cannot be undone, nor to condemn him for his guilt. We are here to measure the extent of little Betty's damages.
All that this child knows is that she was in an automobile; something happened. She woke up in a hospital in pain, pain that has gradually become numbness or, as we know it, a paralysis. Perhaps she doesn't know it now, but you know and we all know that the child who ran once will never run again, she will hear the laughter of her playmates skipping rope, walking to school, going upon hikes with friends, playing games at birthday parties, but Betty -- she will be lying in bed wondering why -- why all her playmates have forgotten her, why all play has stopped for her.
Her playmates will grow larger, stronger, more confident -- pass through the wonderful transformation of adolescence. They will go to football games and dances, they will meet young men and fall in love, the most wonderful experience in mankind. They will know the experience of marriage, sometimes thrilling, sometimes excruciating, but vital, vibrant, alive. They will know the constant companionship of those in love, the thrill of parenthood and the joys that come from the first tooth, the first appearance in a school play. The love, the affection, the joys and griefs shared in common with someone you love. But Betty? While others grow strong, she will remain weak; useless legs will remain small and will wither from lack of use. The sturdy little legs she now possesses will become misshapen and bony.
Instead of loving companionship, she will know the care of hired nurses -- those who must look after her because she cannot control and never can control even her bladder and her bowels. Those who look after her because they are paid to do so, when her own grieving parents have gone.
Yes, except for that day of May the second, Betty might have pursued a career. As a school teacher, a nurse, a doctor or lawyer, she probably would have earned two thousand dollars a month. With her life expectancy of forty years after reaching adulthood, then, she would probably have earned in her lifetime between $800,000 and $1,200,000. Defense counsel will say: You can't measure a loss like this in money. No, we can't measure some things in money, at all. But if we take an average of her earnings -then she would have earned a million dollars for her well being, which earnings are now forever lost. Instead, there will be the constant expense of nursing care. You have heard the evidence as to current nursing rates, and these, over the next fifty years, can easily exceed another $500,000. Defense counsel in preliminary examination wisely talked at length about not permitting your sympathies to influence the size of the verdict, because he wanted you to forget that Betty's actual financial loss, combining lost earnings and nursing expense, will be more than $1,500,000.
But, ladies and gentlemen of the jury, is there to be no compensation beyond that for Betty's lost childhood, for the lost play, the joys and memories stored in the hearts of children? Is there to be no compensation to her for the anguish of an invalid's life, of useless limbs, of beauty turned to horror? For the lost love she will never know, the children she will never hold? For taking all the light from life and turning it into a place of darkness?
All that we can give Betty now is an opportunity to forget, to learn new things, perhaps to travel, with the aid of nurses, and to see new places, new things which may remove her thoughts from things of sadness. But such things are expensive, more than the mere $1,000 a month or so we figured for nursing care, and the $2,000 per month she would have earned for her own support. She must at least be given the opportunity to gain some of the happiness in life that this girl, who used to laugh, might have known. We cannot sentence her to life in a garret, nor to a life of brooding over that which might have been. We can, at least, upon this one day when she appears to receive Justice at our hands, make it possible to relieve the anxieties of financial care, to create a fund which will permit her to be taken from place to place, to learn new interests, so that her own lost children do not haunt her. To at least let our own feeling for her brighten the grim future of her life. We cannot make little Betty run again, or play, but we can do the best for her which the law gives us the power to do. And no one with any heart can do any less for an innocent child.

United States v. Yahweh Ben Yahweh 792 F. Supp. 104 (S.D. Fla. 1992)(51)

Lest any students doubt the admissibility of violent disgusting photographs after the Lopinson discussion, this case should put those doubts to rest.

Old Chief v. United States, 117 S. Ct. 644 (1997) (54)

In this case a majority of the United States Supreme Court held that in a prosecution for unlawful possession of a firearm by a felon, evidence of the precise nature of the crime by which the defendant became a felon was so unfairly prejudicial that it was error for the trial court to refuse to accept a stipulation of the defendant's status as a felon and then to admit the evidence of the prior crime. The decision discusses the countervailing policies in favor of permitting the prosecution enough proof to prove its case, on the one hand, and in favor of a criminal prosecution uninfluenced by possibly pungent evidence of a crime relevant only to establish the status of felony. The court gives emphasis to the fact that the statutory elements of the crime on trial, being a felon in possession of a firearm, did not specify beyond status as a person earlier convicted of a felony. Thus any information about the prior crime beyond the fact that it was a felony would be immaterial and gratuitous. Where the defendant has proferred the government the entire legitimate content of the proof of the prior conviction in the form of a stipulation, the government's desire to prove the legally immaterial nature of the felony just to make it more "real" is not sufficient to overcome the prejudice suffered by the defendant from being branded as a violent criminal.
Cases such as Old Chief should not be read far beyond their specific facts. Certainly one cannot state that Old Chief has seriously altered the law as set forth in cases such as U.S. v. Grassi, 602 F.2d 1192 (5^th Cir. 1979) which was contained in the Second Edition, but has been omitted in this one. Ordinarily, when it comes to proving the elements of the crime, the prosecution will be given much leeway.

Problem - Photos of the Decedent (68)

(Evansville School Cor. v Price, 208 N.E.2d 689 (Ind. 1965))

The point:
Evidence does not have to be gruesome or disgusting to be prejudicial.
Answer and Analysis:
It is hard to see how the photograph is relevant to the issue of liability, but what about damages? Could the photograph be relevant to the boy's possible earning capacity had he not been killed? It does show the approximate age of the boy, but the problem with admitting the photograph on the issue of damages is that it is a picture of an embalmed boy, not one of a live boy. An objection based on changed circumstances should be sustained. The court in fact held that it was error to admit this photograph since the only thing it could be relevant to was the fact of death, which was admitted by the pleadings. What about a photograph of the boy while he was alive, or testimony of a witness about the kind of boy the deceased was? Such evidence would probably be admissible on the issue of damages. But the only purpose for which a photo of the embalmed boy could be offered would be to elicit sympathy for the plaintiff and to encourage a verdict on this basis, which is impermissible.
Further discussion:
Professor Chadboum had a list of particularly gruesome objects which parties wanted to show the jury. He used to like to ask students whether they would allow any of the items to be shown to the jury, and he would proceed through the list in ascending order of revulsion. His list, with some additions of our own, follows:
1. a pickled kneecap, used by a surgeon to demonstrate the nature of plaintiffs injury and why it was removed (held admissible even though Xray pictures and testimony could describe the same facts);
2. an eye in a jar (held inadmissible because its loss in an auto accident was conceded; proof in species adds nothing over concession);
3. a photograph of bums (held admissible even though somewhat cumulative of testimony);
4. a photograph of a bloody, slit throat (held admissible even though there was testimony describing the appearance of the wound);
5. three fingers, a tooth, bloodstained car seat covers and a picture of the body with maggots crawling over it (held not to amount to reversible error in People v. Cavanaugh, 44 Cal. 2d 252, 282 P.2d 53 (1955), over the vigorous dissent of Chief Justice Traynor);
6. a sample of powerfully odorous necrotic tissue, admissible in a negligence suit against a doctor for making a cast so tight that the plaintiff developed gangrene, to show the stench that plaintiff smelled resulting from the gangrene.
A particularly gruesome problem which Professor Chadbourn delighted in giving in class is what we call:

Don't Lose Your Head Over the Corpus Delecti

Charge: murder in the first degree, alleged to have been committed on or about May 3, 1963. The prosecution offers the following evidence: White testifies that on May 1, 1963, he saw the defendant and Clayborn Showers together in Showers' Chevrolet in Montecello, Iowa. Wills testified that on May 1, 1963, the defendant and Showers traded Showers' Chevrolet for a used Ford at his car lot outside of Montecello, Iowa. Weise testifies that on May 3, 1963, he saw the defendant driving a used Ford that matches the description of the Ford purchased from Wills and that the defendant was the sole occupant of the car. T he Montecello Sheriff testifies that on May 4, 1963, the nude body of a male was found in a wooded area outside of Montecello, but that the body was unidentifiable because the head had been severed.
At the defendant's trial in 1966, he pleads the alibi of the alleged deceased, i.e., that the supposed deceased is still alive. The defense offers Wilcox, who testified that Showers was at his house in Davenport, Iowa in 1964. The defense also offers Weatherspoon, who testifies that he saw Showers on a battlefield in Vietnam in 1965, although he knew Showers by another name.
In rebuttal, the prosecution offers into evidence a severed human head preserved in alcohol, the testimony of a medical doctor that the head is that of a deceased person found in May, 1963 near Montecello, Iowa, and the testimony of two additional witnesses that they were friends of Showers and that they recognize the preserved head to be that of Showers.
Is the prosecution's rebuttal evidence relevant? Is it admissible? What factors should the court consider in making this judgment?

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