This a photograph entered into evidence in the Casey Anthony trial on Friday, June 10, 2011. The photo shows Caylee Anthony and her mother Casey.  An expert witness used this photo to superimpose an image of Caylee’s skull to mark supposedly where duct tape found on the remains would have been positioned on her face while alive.

Here is a description of the video from the Orlando Sentinel: “Later, they viewed an unusual and contested video, showing a picture of Caylee alive with her mother and then images of her skull and a superimposed single strip of duct tape covering her nose and mouth. As the skull and tape became more prominent in the presentation, the image of Caylee alive faded.” The video showed a smiling and beatific picture of Caylee with a skull and duct tape superimposed on top of the live image. The video had her face morphing into a bare skull.

Professor Michael Warren used the video to illustrate how duct tape could have been on the child’s face prior to decomposition. Warren said he created the video of Caylee “decomposing” into the image of her skull to show scale, and included a photo of duct tape from the scene to demonstrate that it is possible for the tape to cover Caylee’s nose and mouth. Warren admitted that he used a photo of Caylee that he had downloaded on the Internet, and didn’t even know how old Caylee was in the photo.

The defense objected calling the video “disgusting” and “pure fantasy,” but Judge Perry, despite the objections, allowed the animation to be shown. If that was not enough, he also allowed testimony that Caylee’s bones had been chewed on by wild animals in the woods. John Schultz, a University of Central Florida forensic anthropology professor, told the jury that two large leg bones that were recovered had “actually been chewed on by animals.”

This is Judge Belvin Perry’s first catastrophic mistake. While he has generally been assisting the prosecution, he has not made any seriously wrong rulings, up to now. This video re-enactment is clearly inadmissible per Rule 403.  Here is the text of the rule with the important parts highlighted:

90.403 Exclusion on grounds of prejudice or confusion.

Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.

In my opinion, it is fair game to use the crime scene photographs so long as there is a relevant purpose to them. They can be brutal, but if the crime is brutal they are admissible. However creating a video which starts with a beautiful child and morphs into an ugly skull is going too far. This is not real evidence but created evidence. Evidence created to shock the emotions of the jury into hating the defendant. And if you watch any of the television or read the print coverage you see the video succeeded beyond even the prosecutor’s expectations. But a trial is not about using quasi-evidence to demonize the defendant. It is about using actual evidence, although ugly, to establish facts.

Note that the rule requires that the unfair prejudice substantially outweigh the probative value. I caution my law students that mere prejudice or even high prejudice is not enough. It must be “unfair” prejudice. They must present an argument which explains why the prejudice is unfair. One way of doing that is showing the evidence would cause the jury to decide the case on something other than the facts. That is exactly what is happening here. The jury is not thinking that the demonstration shows how the duct tape was used in the killing. It is thinking get me a rope to hang this cold blooded, heartless and dangerous mother. Does anyone doubt this video is visceral and inflammatory?