Can a jury exclude photographs of a murder victim from the evidence in the trial of a witness in order to identify the victim?

"We have often rejected the argument that photographs of a murder victim should be excluded as cumulative if the facts for which the photographs are offered have been established by testimony." (People v. Price (1991) 1 Cal.4th 324, 441.) The photographs could have assisted the jurors "in understanding and evaluating the testimony presented

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to them." (People v. Wilson (1992) 3 Cal.4th 926, 938.) We have viewed the photographs and find them neither gruesome nor inflammatory. They were relevant: the autopsy photographs showed how the victim died and the crime scene photographs illustrated the shooting. No undue prejudice was shown by admission of this evidence.

Appellant claims that the photograph of the victim in life was irrelevant and offered only to show that the victim was a human being who had been alive and was now dead. Although courts have warned against using photographs of the victim alive "given the risk that the photograph will merely generate sympathy for the victims," they have allowed such pictures when they are relevant in assisting the jury in understanding a witness's testimony. (See People v. Harris (2005) 37 Cal.4th 310, 331.) The prosecution used the photographs of the victim while alive during the testimony of witnesses in order to identify the victim. We conclude that the use of the photograph of the victim while alive was relevant to this testimony. In any case, it was not more prejudicial than probative pursuant to Evidence Code section 352.