*2 prison. pic- KNOCH, One of Before KILEY FAIR- these shots” Judges. codefendant, CHILD, tured Reed’s Silvers. pending. Silvers, appeal argued States v. has been and its United Silvers’ testimony, Shortly after this another notations scriptive testimony concerning and the de- government witness, La- held the Sheriff them government County, Porte identified United States Harman, mug 10 as “a of Orrin Scott 349 F.2d 316 hibit shot cross-examination, remanding Reed.” court On the sher- new anything iff in Harman testified that showed said it doubted that *3 Reed the and Silvers to the bank have could have family along eight by prejudice and ten removed the his or created the pictures Indiana “other” from the noted that he had not men- tioned them in State Prison. his instructions. Id. at In the case before the district wife, employee’s The bank specific court made no of mention the crosg- government, for the was asked on upon in its instruction iden- why examination if there was a reason generally up- tification. It did instruct trooper pictures the state right of the each defendant to have day to her the after had reviewed she guilt solely by his determined photographs. three or four hundred She “acts, of own his statements and con- responded “they pictures that had some charged, duct” relevant to the crime prison they from the hadn’t shown us.” upon presumption the of innocence. But. testimony the hold that We we think the instruction could not erase “mug Reed respect shot” prejudice generated the in Reed’s trial. right prison taken in presumed vitiated Barnes v. United F.2d 509’ proven until innocent (D.C. 1966). Cir. Cf. United States Repeated ob error.2 was Magee, 261 F.2d sustained, testimony jections to this testimony This testi remained. but the aggravated This error was mony the between difference the by testimony of Reed’s criminal' presumptively innocent trial of a man Immediately record. after the sheriff’s wrongdoing the criminal “mug shot,” reference to Reed’s he testi- right not to His a known convict. “personally”' fied that he had known Reed was take the stand in own defense years. prosecutor, for about eleven The substantially destroyed. past record His questioning in Reed’s ex-wife as by directly could have shown been witness, asked whether she saw prosecution case to of its as early answered, Reed in December. She prove char bad character since Reed’s long “It wasn’t too after he was released testimony acter issue. The in prison.” agent And an FBI testi- indirectly. did this days fied that a few after the photo- Reed, characterization Silvers if knew “mug graphs in that shots” taken Silvers said “that he had not seen penitentiary escaped.” had Reed since he (Empha- the same effect Although descriptive statements, our directed or at “line- ups” prejudice by accompanying preliminary proceedings; tes- caused or cir- timony, point grave by cumstantial we out there obtained scientific otherwise). in methods or risk the introduction Where the produced where other evidence is or avail- evidence makes use photographs unnecessary, able to show the accused and there is charged. use, use, no other who committed the crime reason for their may itself, may imply in character of the in carry prejudicial implications, through po- evidence is to indicate to appearance history lice notations or the accused has convictions determining photograph. Ad- accused arrests. techniques photographs, will, possi- vanced law enforcement the balance of the many instances, bility prejudice evidence to cor- assure the neces- sity by an of their use is roborate identification at the trial one factor to be con- eyewitness (e. g., prior sidered identifications See note 3- drawings through composite infra. erred Reed that the court contends added.) convict sis That admitting bank’s photocopy emphasized, and if the was now testimony escape, Deposit agent’s Insurance Certificate Federal FBI took properly authenti- have, because was not to mean that as it well point, express escaped, prejudice on this cated. view who was Reed issue be avoided compounded an but we can and Reed became think a certified escaped new trial use of The fact it was convict. original (unless developed photocopy certifi- escaped who had Silvers testimony appropriate prone impressions used) cate is later. But first " impression remain, the insurance is still in effect. and here the first already may ugly im- have added to the Reversed and remanded. age Reed created for shot” of jury. (dissenting). ENOCH, Circuit *4 disagree myself Reluctantly find We need do not and not reach 1949, colleagues. Back admissibility question of the photographs of the ment with Levi, v. of United States themselves or evidence in the 830-833, Court 827, this prior extrajudicial Cir., F.2d identification 7 177 de through principles observe, however, them. in laid suitable down order, error. harmless aid of the new trial we that the termination said objec- Duffy speaking for the Court introduction evidence over this ‘ tion furnished consider the occasion for the color- we should guilt was ,ful defendant’s but of the statements overwhelming. admissibility He then witnesses. The v. approval from Kotteakos quote at evidence Reed’s new trial should 764, 750, 66 depend States, U.S. on the 328 circumstances in it United which In that 1239, 1557. is 90 L.Ed. forth.3 S.Ct. practical Supreme had set Court arguments opening Before the at done, if, all when standard: trial, attorney error sure that the conviction given separate be trial because Silvers’ but did not influence insanity defense would introduce matter effect, should very slight the verdict to Reed. When the trial defendant’s stand. The guilt sep denied Reed’s overwhelming. After knowledge arate he had no certain I am record careful consideration insanity. of Silvers’ defense of But the conviction left the sure supports record preju Reed’s claim majority concerns error which reason, dice. For that worst, we think Reed’s or, did influence would, new trial should slight in the event very effect. granted judgment that Silvers is therefore, a new affirm this court of his objections (2d Upon Cir.), Sisto, de cert. F.2d 929 hear 329 1885, prior extrajudicial 979, nied, 12 84 S.Ct. evidence of U.S. 377 identification, ; (1964) v. United Eidson have considered courts L.Ed.2d 747 1959); reliability prior -the 684 of the means of the F.2d 272 identification, People Thompson, N.E. Ill. 94 406 the fairness of the manner v. State, Thompson used, (1950); 223 in which those means were the ex 2d 349 (1944). prejudicial effect, pur See 112 N.E.2d Ind. 58 Admissibility Annot., which Evidence the evidence is introduced (i. e., merely Extrajudicial Identification Pretrial substantive evidence or Wig (1960) ; sought Accused, 4 449 corroborative impeached), witness A.L.R.2d 71 (3d & more, ed. § and whether Evidence Dangers Hearsay Morgan, Supp.1964); is the same who made Hearsay prior merely Application Con identification an ob and the (1948). g., cept, server of it. E. United States v. De 62 Harv.L.Rev.