Texas Tech Law Review
From June 1987 to May 1988, the Fifth Circuit continued its reputation for careful and prudent analysis of difficult evidentiary issues.
In United States v. Torres-Flores, the court adopted a three part test for determining the admission of a mugshot photograph into evidence from the First and Second Circuits. First, the government must have a demonstrable need to introduce the photographs; second, the photographs themselves, if shown to the jury, must not imply that the defendant has a prior criminal record; and third, the manner of introduction at trial must be such that it does not draw particular attention to the source or implications in the photographs.
In an apparent case of first impression for the Fifth Circuit, the court in United States v. McDonald considered whether a defendant in a criminal case could offer a civil deposition of a co-defendant against the prosecution. The court adopted the Seventh Circuit’s “similarity of motive test.” The considerations in this test are: 1) the type of proceeding in which the testimony is given; 2) trial strategy; 3) the potential penalties or financial stakes; and 4) the number of issues and parties. This approach is a balanced and principled approach which takes into consideration the possibility that in some cases, a sufficient similarity of motive may exist to permit the defendant to offer the former testimony against the prosecution.
The cases during this survey period are unremarkable. However, they represent a continuing refinement of the Federal Rules of Evidence and provide helpful assistance to the bench and the bar who must apply the rules.
David A. Schlueter, Evidence, 20 Tex. Tech L. Rev. 427 (1989).