State v. Broberg

⁵⁴⁹ RAKER, Judge. We granted certiorari in this case to determine whether “in life” photographs, depicting a homicide victim while the victim was alive, may be displayed to the jury at trial. I. On April 25, 1993, Respondent Paul Everett Broberg was driving along a two-lane road in Frederick County. The posted speed limit was fifty miles per hour.

As Broberg drove over the crest of a hill, he struck and killed eleven-year-old Thomas Blank, Jr., who was driving a tractor across the road. At the time of the accident, Broberg’s speed was estimated at approximately sixty-four miles per hour. His blood alcohol level was measured at 0.17. Broberg was indicted in the Circuit Court for Frederick County on thirteen charges, including manslaughter by automobile, homicide by motor vehicle while intoxicated, driving while intoxicated, reckless driving, exceeding the speed limit, speed greater than reasonable and prudent, failure to reduce speed to avoid an accident, and other related offenses.

Broberg was tried before a jury in the Circuit Court for Frederick County in November, 1993. During its opening statement, the State displayed two “in life” photographs of the victim: a sixth-grade school picture, and a photograph of the victim in his little league uniform. Defense counsel objected and moved for a mistrial, arguing that the photographs were irrelevant, and that they could not be shown to the jury until they were introduced in evidence. 1 The trial judge denied the motion. ⁵⁵⁰ The State used the photographs a second time during its direct examination of the victim’s father, Thomas Blank, Sr. When Mr. Blank was shown the photographs and asked to identify the victim, he wept. Defense counsel again objected and moved for a mistrial, arguing that the photographs were irrelevant in light of the parties’ prior stipulation to the victim’s identity.

The prosecutor, however, disputed the scope of the stipulation, stating “that’s not what he stipulated to, your honor, for the record.” See infra Section IV.B and note 13. The trial judge denied the motion, and the prosecutor displayed the two photographs to the jury. Broberg was convicted of homicide by motor vehicle while intoxicated, driving while intoxicated, reckless driving, exceeding the speed limit, speed greater than reasonable and prudent, and failure to reduce speed to avoid an accident. He was sentenced to five years imprisonment with all but eighteen months suspended, a fine of $3350 with $1500 suspended, and three years supervised probation.

Broberg noted a timely appeal to the Court of Special Appeals. The intermediate appellate court reversed the judgment in an unreported opinion, concluding that the photographs should have been excluded because they were of minimal probative value and were highly prejudicial. We granted the State’s petition for a writ of certiorari to resolve the issue of the admissibility of “in life” photographs in criminal cases. 2 ⁵⁵¹ II. The State contends that admission of the “in life” photographs was within the trial court’s discretion, and therefore that the Court of Special Appeals should not have reversed the trial court’s decision.

The State also argues that the photographs provided relevant background information to “humanize” the victim, consistent with the purposes of Maryland Code (1957, 1992 Repl.Vol., 1995 Cum.Supp.) § 761 of Article 27. Respondent argues that the trial court abused its discretion in permitting the State to use the “in life” photographs because he contends that the parties agreed to stipulate to the victim’s identity, thereby eliminating the photographs’ probative value. The photographs thus served only to inflame the jury, and their probative value was outweighed by their prejudicial effect. Furthermore, Respondent argues that the error in admitting the photographs was not harmless beyond a reasonable doubt.

Finally, Respondent argues that neither Article 47 of the Maryland Declaration of Rights nor § 761 of Article 27 creates a right for a homicide victim to be represented in a criminal proceeding by use of an “in life” photograph. 3 ⁵⁵² III. A. Admissibility of Photographic Evidence This Court has on many occasions considered the admissibility of photographic evidence. See, e.g., Johnson v. State, 303 Md. 487 , 495 A.2d 1 (1985), cert. denied, 474 U.S. 1093 , 106 S.Ct. 868 , 88 L.Ed.2d 907 (1986); Cook v. State, 225 Md. 603 , 171 A.2d 460 (1961), cert. denied, 368 U.S. 970 , 82 S.Ct. 445 , 7 L.Ed.2d 398 (1962); Smith v. State, 182 Md. 176 , 32 A.2d 863 (1943). We conclude that “in life” photographs are subject to the same evidentiary analysis as other types of photographs.

As we have consistently stated, the general rule regarding admission of photographs is that their prejudicial effect must not substantially outweigh their probative value. 4 See, e.g., Bedford v. State, 317 Md. 659, 676 , 566 A.2d 111, 119 (1989); Harris v. State, 312 Md. 225, 245 , 539 A.2d 637, 647 (1988); Mills v. State, 310 Md. 33, 43 , 527 A.2d 3, 7 (1987), vacated on other grounds, 486 U.S. 367 , 108 S.Ct. 1860 , 100 L.Ed.2d 384 (1988). This balancing of probative value against prejudicial effect is committed to the sound discretion of the trial judge. The trial court’s decision will not be disturbed unless “plainly arbitrary,” Johnson, 303 Md. at 502 , 495 A.2d at 8 , because the trial judge is in the best position to make this assessment. See, e.g., Bedford, 317 Md. at 676 , 566 A.2d at ⁵⁵³ 119 ; Mills, 310 Md. at 43-44 , 527 A.2d at 8 ; Grandison v. State, 305 Md. 685, 729 , 506 A.2d 580, 602 (1986), cert. denied, 479 U.S. 873 , 107 S.Ct. 38 , 93 L.Ed.2d 174 (1986); but see Buch v. Hulcher, 180 Md. 309, 313-14 , 23 A.2d 829, 831 (1942).

Photographs must also be relevant to be admissible. J. Murphy, Jr., Maryland Evidence Handbook § 1102, at 578 (2d ed. 1993 & 1995 Cum. Supp.); see also 3 Wigmore on Evidence § 792, at 237 (Chadbourn rev. 1981 & 1990 Supp.). We have found crime scene and autopsy photographs of homicide victims relevant to a broad range of issues, including the type of wounds, the attacker’s intent, and the modus operandi.

See, e.g., Clarke v. State, 238 Md. 11, 21-22 , 207 A.2d 456, 461-62 (1965). “In life” photographs are often relevant to establish the victim’s identity. See Annot., Homicide: Identification of Victim, 86 A.L.R.2d 722 , 739 (1962). The relevancy determination is also committed to the trial judge’s discretion. 5 5 L. McLain, Maryland Evidence § 403.5, at Supp. 106 (1987 & 1994 Supp.). In assessing the relevance of photographic evidence, we note that photographs may be relevant and possess probative value even though they often illustrate something that has already been presented in testimony.

Grandison, 305 Md. at 730 , 506 A.2d at 602 . As we observed in Johnson v. State, “all photographic evidence is in some sense cumulative,” 303 Md. at 504 , 495 A.2d at 9 , and “[a]lthough ... cumulative, it should seldom be excluded for that reason.” 6 Murphy, supra, § 1102, at 578. The rationale for allowing photographs to be ⁵⁵⁴ used to illustrate verbal testimony is that in some cases “photographs present more clearly than words what the witnesses were attempting to describe[.]” Reid v. State, 305 Md. 9, 21 , 501 A.2d 436, 442 (1985). 7 We have also noted that photographs do not lack probative value merely because they illustrate a point that is uncontested. Grandison, 305 Md. at 730 , 506 A.2d at 602 .

For example, in Evans v. State, 333 Md. 660 , 637 A.2d 117 (1994), cert. denied, — U.S. -, 115 S.Ct. 109 , 130 L.Ed.2d 56 (1994), we held that autopsy photographs were admissible in a capital sentencing proceeding even though the defendant had stipulated to the facts the photographs were offered to prove. Judge Karwacki, writing for the Court, observed that: [A] judge should exercise his or her discretion with caution when ruling on the admissibility of photographic evidence in capital sentencing proceedings. The need for caution, however, in no way circumscribes the judge’s evidentiary authority; the admission of photographs into evidence remains soundly committed to the discretion of the trial judge in capital sentencing proceedings. Applying this standard to the facts before us, we cannot say that the trial judge abused his discretion in allowing these photographs into evidence.

The photographs illustrated the number of shots fired at each victim and the pattern of the victims’ gunshot wounds. It is immaterial for this purpose that Evans had stipulated to the cause of death, location of wounds, etc., for “the very purpose of photographic evidence is to clarify and communicate facts to the tribunal more accurately than by mere words.” Id. at 693, 637 A.2d at 133 (citations omitted). Accord Grandison, 305 Md. at 730, 506 A.2d at 603 (“[T]he particular photographs [are not] inflammatory to the jury solely on the ⁵⁵⁵ basis that they do not represent any issue in controversy. Further, since the photographs are mere graphic representations of undisputed facts already in evidence, their introduction could not be held to have injured the accused.”).

Although the trial judge possesses broad discretion regarding the admission of photographs, this discretion does not authorize the judge to admit irrelevant photographs. For example, in Buck v. Hulcher, 180 Md. 309 , 23 A.2d 829 (1942), an action for alienation of affections, we suggested that a photograph of “plaintiffs wife closely and affectionately surrounded by her daughter and twin sons, very nice looking children and of tender years” was irrelevant, given that the wife was present in court and testified on behalf of her husband. 8 Id. at 313 , 23 A.2d at 831 . Therefore, in determining the admissibility of any photograph, the trial judge must make a two-part assessment: first, the judge must decide whether the photograph is relevant, and second, the judge must balance its probative value against its prejudicial effect. We will treat the trial judge’s findings on these matters with great deference.

See, e.g., Void v. State, 325 Md. 386, 393 , 601 A.2d 124, 127 (1992) (quoting Durkin v. State, 284 Md. 445, 453 , 397 A.2d 600, 605 (1979)). See also M. Rosenberg, Judicial Discretion of the Trial Court, Viewed From Above, 22 Syracuse L.Rev. 635, 663 (1971). B. Admissibility of “In Life” Photographs In Grandison v. State, 305 Md. 685 , 506 A.2d 580 , we applied the two-part test for the admissibility of photographic ⁵⁵⁶ evidence to “in life” photographs. Id. at 729-30 , 506 A.2d at 602 .

The defendant, Anthony Grandison, contracted to have David and Cheryl Piechowicz murdered to prevent them from testifying against him in a pending narcotics proceeding. Id. at 697 , 506 A.2d at 585-86 . Rather than killing the two intended victims, however, the assailant mistakenly killed Cheryl Piechowicz’s sister, Susan Kennedy. Id., 506 A.2d at 586 .

We determined that the “in life” photograph of Susan Kennedy was relevant to the issue of her resemblance to her sister. Id. at 729 , 506 A.2d at 602 . We upheld the admission of the photograph, concluding that there was “no arbitrariness” in the trial court’s decision. Id., 506 A.2d at 602 .

The Fourth Circuit later considered the same issue in United States v. Grandison, 780 F.2d 425 (4th Cir.1985), cert. denied, 495 U.S. 934 , 110 S.Ct. 2178 , 109 L.Ed.2d 507 (1990). With regard to the relevance of the “in life” photographs, the court stated: Objections [to the “in life” photographs] were lodged on grounds of non-relevance.... [W]e perceive no strength in the argument, because [the victims] were central figures in the crimes that had been charged. They had to be identified. Id. at 429.

The majority of appellate courts in other jurisdictions that have considered the admissibility of “in life” photographs have also upheld their admission. Annot., Homicide: Identification of Victim, 86 A.L.R.2d 722 , 739 (1962). See also Drane v. State, 265 Ga. 255 , 455 S.E.2d 27 (1995); State v. Ash, 526 N.W.2d 473 (N.D. 1995); State v. Brett, 126 Wash.2d 136 , 892 P.2d 29 (1995); State v. Mergenthaler, 263 Mont. 198 , 868 P.2d 560 (1994); State v. Walker, 252 Kan. 279 , 845 P.2d 1 (1993); State v. Williams, 313 Or. 19 , 828 P.2d 1006 (1992), cert. denied, 506 U.S. 858 , 113 S.Ct. 171 , 121 L.Ed.2d 118 (1992); State v. Bertram, 591 A.2d 14 (R.I.1991); State v. Ryan, 226 Neb. 59 , 409 N.W.2d 579 (1987); Com. v. Nadworny, 396 Mass. 342 , 486 N.E.2d 675 (1985); State v. Aswegan, 331 N.W.2d 93 (Iowa 1983); State v. Brown, 306 N.C. 151 , 293 S.E.2d 569 (1982), cert. denied, 459 U.S. 1080 , 103 S.Ct. 503 , 74 L.Ed.2d 642 (1982); Burgess v. State, 339 So.2d 121 (Ala. ⁵⁵⁷ 1976); People v. Sullivan, 97 Mich.App. 488 , 296 N.W.2d 81 (1980), cert. denied, 308 N.W.2d 109 (1981). A number of these jurisdictions have adopted a two-pronged test for admissibility of “in life” photographs similar to our own standard.

See, e.g., People v. Stevens, 76 N.Y.2d 833 , 560 N.Y.S.2d 119, 120 , 559 N.E.2d 1278, 1279 (1990); People v. Hendricks, 43 Cal.3d 584 , 238 Cal.Rptr. 66, 71-72 , 737 P.2d 1350, 1356 (1987). A minority of jurisdictions have taken the position that “in life” photographs are irrelevant and prejudicial, and therefore have concluded that use of “in life” photographs is disfavored. See, e.g., Com. v. Rivers, 537 Pa. 394 , 644 A.2d 710, 716 (1994); Valdez v. State, 900 P.2d 363 , 381 & n. 83 (Okl.Crim.App.1995). A few courts have articulated a higher standard for admission of photographic evidence; for example, Pennsylvania courts have suggested that if photographs are inflammatory, they must possess “essential evidentiary value” to be admissible.

Com. v. McCutchen, 274 Pa.Super. 96 , 417 A.2d 1270, 1272 (1979), vacated on other grounds, 499 Pa. 597 , 454 A.2d 547 (1982) (“essential evidentiary value” standard upheld, but photographs excluded by trial court found to possess essential evidentiary value, although graphic). The rationale for this elevated standard with respect to photographs is that because they often merely repeat or restate evidence that has been presented in other forms, they do not justify any additional prejudice to the defendant. See Rivers, 644 A.2d at 717 . We have previously rejected this reasoning and have declined to apply an elevated standard of admissibility to photographic evidence.

Bedford, 317 Md. at 677 , 566 A.2d at 120 (“Bedford alleges that where a photograph has only minimal significance, and no essential evidentiary value, the trial judge should be more inclined to exclude it if it is inflammatory. Nonetheless, we have not adopted such a test and require only that the trial judge not abuse his discretion.”). We have found no jurisdiction, however, that has adopted a per se rule barring the use of “in life” photographs. When appellate courts have disapproved the admission of “in life” photographs, they have generally either found that the photographs were irrelevant, or that their probative value in the ⁵⁵⁸ particular case was outweighed by their prejudicial effect.

See, e.g., Rivers, 644 A.2d at 716 ; Parker v. State, 292 Ark. 421 , 731 S.W.2d 756, 763 (1987); Stevens, 560 N.Y.S.2d at 120 , 559 N.E.2d at 1279 ; Boutwell v. State, 659 P.2d 322, 326 (Okl.Crim.App.1983). Furthermore, even those jurisdictions that have consistently criticized the use of “in life” photographs have upheld admission of the photographs where they were clearly relevant. See, e.g., Shelton v. State, 793 P.2d 866, 870 (Okl.Crim.App.1990). For example, although the Oklahoma courts have often expressed disapproval of “in life” photographs, see, e.g., Rawlings v. State, 740 P.2d 153, 162 (Okl.Crim.App.1987), the Oklahoma Court of Criminal Appeals upheld the admission of an “in life” photograph of a murder victim despite the defendant’s offer to stipulate to identity based on the victim’s dental X-rays.

Shelton v. State, 793 P.2d at 870 . The court upheld the admission because the photograph was necessary to support other testimony by people who had observed the victim with the attacker before the incident. Id. In addition, even where courts have disapproved the use of “in life” photographs, errors in admission have seldom been found prejudicial.

See, e.g., Valdez, 900 P.2d at 381 ; Rivers, 644 A.2d at 716 ; People v. Cox, 53 Cal.3d 618 , 280 Cal.Rptr. 692, 716 , 809 P.2d 351, 375 (1991), cert. denied, 502 U.S. 1062 , 112 S.Ct. 945 , 117 L.Ed.2d 114 (1992); Stevens, 560 N.Y.S.2d at 121 , 559 N.E.2d at 1280 . C. Effect of Stipulations We must next consider the relevance of the “in life” photographs in this case in light of Respondent’s contention that the parties stipulated to the identity of the victim. By definition, a stipulation is an agreement between counsel akin to a contract. See Burke v. Burke, 204 Md. 637, 645 , 106 A.2d 59, 63 (1954).

Like contracts, stipulations are based on mutual assent and interpreted to effectuate the intent of the parties. 9 Id., 106 A.2d at 63 . Parties are generally held ⁵⁵⁹ bound by their stipulations. Bloom v. Graff, 191 Md. 733, 736 , 63 A.2d 313, 315 (1949). Although a stipulation by definition must be based on mutual assent, parties frequently dispute both the scope of the stipulation and the extent to which it precludes the parties from offering other evidence of the stipulated fact. 10 As Wigmore observed: A fact that is judicially admitted [stipulated] needs no evidence from the party benefiting by the admission.

But his evidence, if he chooses to offer it, may even be excluded; first, because it is now ... immaterial to the issues ...; next, because it may be superfluous and merely cumber the trial ...; and furthermore, because the added dramatic force which may sometimes be gained from the examination of a witness to the fact (a force, indeed, which the admission is often designed especially to obviate) is not a thing which the party can be said to be always entitled to. Nevertheless, a colorless admission by the opponent may sometimes have the effect of depriving the party of the legitimate moral force of his evidence; furthermore, a judicial admission may be cleverly made with grudging limitations or evasions or insinuations (especially in criminal cases) so as to be technically but not practically a waiver of proof. ⁵⁶⁰ 9 Wigmoee on Evidence § 2591, at 824-25 (Chadbourn rev. 1981 & 1990 Supp.) (citations omitted). In determining whether to admit evidence that is offered to prove a stipulated fact, courts must often balance the competing interests of the parties. State v. Gilmore, 332 So.2d 789, 795-96 (La.1976).

The party who offers to stipulate is entitled to obtain the benefit of his bargain, i.e., preventing the use of inflammatory evidence. Id. The party benefiting from the stipulation, however, may also be entitled to the “legitimate moral force of his evidence.” Wigmore, supra, § 2591, at 824. We believe, as Wigmore suggests, that because of these competing considerations, “there should be no absolute rule on the subject ... [and] the trial court’s discretion should determine whether a particular admission is so plenary as to render the first party’s evidence wholly needless under the circumstances.” Id. at 825, cited in Gilmore, 332 So.2d at 795 .

See also Burgess v. State, 339 So.2d 121, 123-24 (Ala.Crim. App.1976); Annot., Criminal Trial—Proving Conceded Fact, 91 A.L.R. 1478 (1934). We therefore conclude that the trial judge should retain the discretion to determine whether evidence may be admitted to prove a stipulated fact. In exercising this discretion to determine whether extrinsic proof of a stipulated fact is admissible, trial courts should consider, inter alia: (1) the intent of the parties, if any, regarding presentation of the proffered evidence; (2) the incremental probative value of the evidence as compared to the stipulation, (i.e., where the evidence provides greater detail than the stipulation); and (3) the potential unfair prejudicial impact of the proffered evidence.

We shall review the trial court’s decision in this regard for abuse of discretion. ⁵⁶¹ IV. A. Probative Value Versus Prejudicial Effect Applying the two-pronged test for the admission of photographic evidence to the “in life” photographs in this case, we conclude that the trial court did not abuse its discretion in admitting the photographs. In every homicide case, the State must establish the identity of the person killed. Jones v. State, 188 Md. 263, 272 , 52 A.2d 484, 488 (1947) (“In a homicide case the proof ... [must] establish ... the fact that the person for whose death the prosecution was instituted is dead.... ”).

Either “in life” photographs or photographs taken after death may be used to establish the victim’s identity. Cf. Grandison, 305 Md. at 729 , 506 A.2d at 602 (upholding admission of “in life” photographs of victims as well as autopsy photographs to illustrate medical examiner’s testimony). The photographs of Thomas Blank, Jr., taken while he was alive were probative of the deceased victim’s identity because his father’s testimony connected the person depicted in the “in life” photographs to the person killed in the accident.

Furthermore, although the photographs were prejudicial to Respondent’s case, they were not unfairly prejudicial. The “in life” photographs were not used as part of a “before and after” comparison with autopsy photographs, a practice that some courts have suggested may exacerbate the prejudicial effect. See, e.g., People v. Stevens, 76 N.Y.2d 833 , 560 N.Y.S.2d 119, 120 , 559 N.E.2d 1278, 1279 (1990). In addition, neither of the photographs was more prejudicial than autopsy photographs that are routinely admitted in homicide cases.

Accord Sample v. Campbell, 305 P.2d 1033 (Okl.1957) (In a wrongful death action, potential prejudice resulting from admission of a photograph of the victim, a young boy, in his sports team uniform, did not require reversal). Thus, the trial court decision that the potential prejudicial effect of the photographs did not outweigh their probative value was not an abuse of discretion. ⁵⁶² B. Relevance of the Photographs in Light of a Stipulation Respondent also argues that the photographs presented in this case were not relevant because the defense stipulated to the identity of the victim. Applying the principles regarding stipulations outlined in Section III.C, supra, we must next consider whether Petitioner and Respondent entered into a stipulation. We are faced with conflicting information regarding the nature and extent of the stipulation.

Before the trial began, at the conclusion of a bench conference, Respondent’s counsel remarked to the judge that the parties had stipulated to the identity of the victim, and thus no photographs would be necessary. 11 Although the State’s Attorney did not object, the record does not establish whether he was still a party to the bench discussion. 12 The record also indicates, however, that later in the trial, Petitioner and Respondent disagreed regarding the nature of the stipulation. 13 At the hearing on Respon ⁵⁶³ dent’s motion for a new trial, Respondent’s counsel again referred to a stipulation. Finally, at oral argument, Respondent contended that both parties agreed to stipulate to the victim’s identity, while the State contended that there was no mutual assent to a stipulation. This case illustrates the need to state the precise terms of a stipulation on the record. We are limited in our review to the information that appears in the record.

In future cases, the proponent of a stipulation would be well advised to ensure that the terms of any stipulation are recorded, and that mutual assent is demonstrated. See McLaurin v. State, 31 Md.App. 375 , 356 A.2d 563 (1976). ⁵⁶⁴ Assuming, arguendo, that the parties did agree to stipulate to the victim’s identity, the record illustrates that they consistently disagreed about which evidence was precluded by the stipulation. See supra note 13. As we noted in Section III.C, supra, the decision regarding whether a particular piece of evidence may be offered to prove a stipulated fact is committed to the sound discretion of the trial judge.

Although the record does not reflect any direct statement by the trial judge whether the stipulation to the identity of Thomas Blank, Jr., rendered the “in life” photographs unnecessary, the judge considered the issue on at least four occasions. While the better practice is for the trial judge to state the basis for the decision on the record, the trial court is not required to do so. 14 Beales v. State, 329 Md. 263, 270 , 619 A.2d 105, 109 (1993). The trial judge was privy to a discussion of the terms of the stipulation in chambers that is not included in the record. He was therefore in a better position to determine whether the “in life” photographs were relevant. ⁵⁶⁵ In addition, although the relevance of the photographs derived from their use to prove the victim’s identity, which was stipulated, the stipulation did not deprive the photographs of all relevance.

See Grandison v. State, 305 Md. at 729, 506 A.2d at 602 . Photographs are inherently cumulative, whether used to illustrate testimony or, as in this case, in support of a stipulation. We reaffirm the position we stated in Bedford , that photographs need not possess “essential evidentiary value” to be admissible. 317 Md. at 677 , 566 A.2d at 120 . Furthermore, photographic evidence ordinarily does not provide the factfinder with new information, but rather with an alternative form of information.

See Johnson v. State, 303 Md. at 504 , 495 A.2d at 9 . The trial judge had discretion to determine whether this alternative form of information regarding the identity of the victim was “wholly needless under the circumstances.” Wigmore, supra, § 2591, at 825. We hold that the trial judge’s decision to admit the photographs was not an abuse of discretion. C. The Victim’s Right to Be Present at Trial Under the Victims’ Bill of Rights Finally, although we conclude that the “in life” photographs were admissible in this case, we decline to adopt a per se rule that “in life” photographs are admissible in every case.

Petitioner and Amici 15 suggest that Article 47 of the Maryland Declaration of Rights and § 761 of Article 27 require the automatic admission of “in life” photographs in order to effectuate the policy of representing the interests of victims in criminal proceedings. See supra note 3. Both Article 47 and § 761 were intended to ensure the utmost respect and consideration for the victims of crimes. See also Cianos v. State, 338 Md. 406, 421-413 , 659 A.2d 291, 294-95 (1995).

We do not, however, interpret these broad provisions to preclude the trial ⁵⁶⁶ judge from exercising discretion regarding the admission of photographic evidence. JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THAT COURT WITH DIRECTIONS TO AFFIRM THE JUDGMENT OF THE CIRCUIT COURT FOR FREDERICK COUNTY. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY RESPONDENT.

Dissenting Opinion by ELDRIDGE, J., in which MURPHY, C.J., and BELL, J., join. . Respondent notes this fact in his brief, but he does not cross-appeal the denial of his motion. Before this Court, he does not argue that this was eri'or, nor does he ask the Court for relief on this basis. Although the dissent contends that our decision not to address this point indicates that our treatment of the issues is not "even handed,” we do not believe it would be appropriate to address an evidentiary issue that was neither briefed nor argued before this Court.

See dissenting op. at 568, n. 4. . The Petition for Writ of Certiorari framed the question presented as: Did the Court of Special Appeals err in concluding that the trial court improperly exercised its discretion in allowing the jury to become acquainted with the homicide victim through a display of "in life” photographs of the victim? Although the dissent interprets the certiorari question to require us solely to decide whether "in life” photographs may be used to "humanize” a homicide victim, we do not agree with this narrow interpretation of the issue. See dissenting op. at 567-568.

While Petitioner argued that "in life" photographs should be admitted for this purpose to vindicate the rights of the victim, Petitioner also argued that the trial court properly exercised its discretion in admitting the photographs, because they were relevant and because their probative value was not ⁵⁵¹ outweighed by the potential prejudicial effect. See Petition for Writ of Certiorari at 4-5. . Article 47 of the Maryland Declaration of Rights provides in pertinent part that: (a) A victim of crime shall be treated by agents of the State with dignity, respect, and sensitivity during all phases of the criminal justice process. (b) In a case originating by indictment or information filed in a circuit court, a victim of crime shall have the right to be informed of the rights established in this Article and, upon request and if practicable, to be notified of, to attend, and to be heard at a criminal justice proceeding, as these rights are implemented and the terms "crime”, "criminal justice proceeding”, and “victim” are specified by law.

Md. Decl. Rts. art. 47. This provision was ratified in 1994, subsequent to Petitioner's trial. See 1994 Md. Laws ch. 102.

Prior to its enactment, however, similar provisions were contained in § 761(2) of Article 27, which provides that crime victims and witnesses should "be treated with dignity, respect, courtesy, and sensitivity.” Section 761(4) also requires that crime victims should be notified of all court proceedings. . Respondent was tried before the new Maryland Rules of Evidence entered into effect on July 1, 1994. Our analysis, however, would be unchanged under the new rules. As under the common law, the new rules require that photographic evidence be relevant to be admissible.

Md. Rule 5-402. The new rules also require that the probative value of photographic evidence must not be substantially outweighed by its unfair prejudicial effect. Md. Rule 5-403. See also J. Murphy, Jr., Maryland Evidence Handbook § 1102, at Supp. 50 (2d ed. 1993 & 1995 Cum.

Supp.). Furthermore, Rule 5-402 and Rule 5-403 are derived from the corresponding Federal Rules of Evidence. In determining the admissibility of photographic evidence under the Federal Rules, federal courts have applied the same two-part test we have adopted. See, e.g., United States v. Joe, 8 F.3d 1488, 1499 (10th Cir.1993), cert. denied, 510 U.S. 1184 , 114 S.Ct. 1236 , 127 L.Ed.2d 579 (1994); United States v. Grandison, 780 F.2d 425, 429 & n. 4 (4th Cir.1985). .

In addition to these relevancy determinations, photographs must also be authenticated to be admissible. Bedford v. State, 317 Md. 659, 676 , 566 A.2d 111, 119 (1989). The photographer need not testify provided that someone with personal knowledge verifies that the photograph accurately portrays it subject. 5 L. McLain, Maryland Evidence § 403.5, at 317-18 (1987 & 1994 Cum. Supp.); E. Imwinkelreid, Evidentiary Foundations 75 (3d ed. 1995).

See also Murphy, supra, § 1102, at 578. . Although the new rules of evidence also authorize the trial judge to exclude evidence if necessary to prevent “needless presentation of cumulative evidence,” Md. Rule 5-403, we do not interpret the rule to alter the trial court's discretion to admit photographic evidence. . We withdrew our initial opinion in Reid and ordered a limited remand on an evidentiary issue unrelated to the photographic evidence. The original Reid opinion was attached to our revised opinion in an appendix.

The portions of the initial opinion relating to the photographs were incorporated in our revised opinion by reference. 305 Md. at 13. 501 A.2d at 438 . . The tort action for alienation of affections "arose when a person induced a married woman to leave her husband or otherwise interfered with the marital relationship, even though no act of adultery was committed.” Kline v. Ansell, 287 Md. 585, 590 , 414 A.2d 929, 932 (1980). The plaintiff was required to prove that an affirmative act by the defendant caused harm to the marital relationship. Prosser & Keeton on the Law of Torts § 124, at 919 (5th ed. 1984 & 1988 Supp.).

In Buch, the photograph of the plaintiffs wife did not merely duplicate evidence presented in the wife's testimony, nor was it offered to prove an uncontested or stipulated element of the case. The photograph simply did not serve to prove any element of the case. . In some circumstances, if one party asserts that there is a stipulation and the other party fails to object, this silence may be interpreted as ⁵⁵⁹ acquiescence. See Henderson v. Warden, 237 Md. 519, 522 , 206 A.2d 793, 795 (1965); Bloom v. Graff, 191 Md. 733, 736 , 63 A.2d 313, 315 (1949). .

As one commentator notes, “[s]ometimes a stipulation may appear to eliminate an element without actually doing so,” because stipulations ... often ... are worded poorly, especially when offered in the heat of argument. It will not always be clear to a trial judge exactly what the defendant is conceding and what is being disputed. * * 4* # * * In the midst of arguments over admission [of evidence] ..., a trial judge must parse a stipulation on the spot and decide whether it is fair to both sides. This is not always easy to do, especially if the defendant’s theory of defense is ambiguous. S. Saltzburg, Stipulations by the Defense to Remove Other Acts Evidence, 9 Crim.

Just. 35, 39 (1995). . Respondent’s counsel referred to an earlier discussion of the stipulation with the trial judge in chambers. There is no record of this discussion. . When the photographs were first used by the State during opening arguments, Respondent’s counsel objected, but not on the basis of the stipulation to identify.

See supra note 1. . The dispute regarding the stipulation first arose during the State’s Attorney’s direct examination of the victim's father: Q: I show you what's been marked State’s Exhibits, as well as defense exhibits, Number 1 and 2 for identification [the "in life” photographs]. Can you tell the jury and the Judge if you recognize those? What are those, sir? [DEFENSE COUNSEL]: Your Honor, we've already stipulated to the identity to avoid what’s happening now, Your Honor.

I object. [THE COURT]: You can just ask him a leading question, I think, that it is who it is. [STATE'S ATTORNEY]: He did say it’s his son, Your Honor, in case you didn’t hear. [THE COURT]: Right. You stipulate to that, [Defense Counsel]? [DEFENSE COUNSEL]: We already did, Your Honor, and I'll renew my motion that I made at the beginning of the case at this time. [THE COURT]: All right. I understand, yes. [STATE’S ATTORNEY]: That's not what he stipulated to, Your Hon- or, for the record. ⁵⁶³ [THE COURT]: All right, objection's overruled. The dispute arose again during the State’s direct examination of the emergency room physician, Dr. Frasier, who treated the victim following the accident and signed the victim's death certificate.

The State’s Attorney offered to use the “in life” photographs of the victim to demonstrate that the person Dr. Frasier pronounced dead was the victim, Thomas Blank: [STATE'S ATTORNEY]: I don't want [Defense Counsel] thinking he’s identified the wrong person. I have photographs of the deceased. I’m more than happy to show it. If he wants to stipulate it's the same person, that’s fine. [DEFENSE COUNSEL]: I've already done that. [STATE'S ATTORNEY]: No, you did it to the father, not to the doctor. [DEFENSE COUNSEL]: Judge- [THE COURT]: What do you want to do? [DEFENSE COUNSEL]: I want to address the Court, because that's the proper thing to do.

I stipulated to the identity of the victim. The subject who is deceased is the one who was involved in the accident. I have stipulated to the identity. He wants to show photographs. [STATE'S ATTORNEY]: No, I don't.

I want to make sure you're [not] going to then say that the person that Dr. Roberts and Dr. Frasier declared dead, I didn’t show that person that was stipulated to back at the scene of the crime. [DEFENSE COUNSEL]: I’ve already stipulated that’s the same person. [STATE’S ATTORNEY]: Okay, fine. That's fine. That’s fine. (THE COURT]: Okay. [STATE'S ATTORNEY]: I just want to make sure it’s clear ...

(inaudible). [DEFENSE COUNSEL]: It’s only the identity that I’m stipulating to. [THE COURT]: All right, the stipulation is noted. . Respondent’s counsel argued the issue of the admissibility of the "in life” photographs again at the hearing on his motion for a new trial. The trial court denied the motion, stating: I’ve looked through the exhibits this morning and viewed the pictures again. He [Thomas Blank, Jr.] appeared to be an attractive and normal 11-year old child at the time, and as far as the pictures are concerned... the testimony, even absent the pictures, the testimony was already in at that time, unchallenged by the defense, that the blood alcohol level was ... a .17.....

Although the trial judge did not explicitly state that he was balancing probative value against prejudicial effect, this statement reflects the judge’s consideration of the potential unfair prejudicial impact of the photographs on the jury. When photographs are offered as proof of a stipulated fact, the trial judge applies the balancing of probative value against prejudicial effect twice. First, the trial judge must balance probative value against prejudicial effect as part of the two-part test for admissibility of photographic evidence. See supra Section III.A. Second, the probative/prejudice balance is one factor to consider in determining whether to admit evidence of a stipulated fact.

See supra Section III.C. Although the trial judge in this case did not state on the record that he was applying the probative/prejudice balancing test twice, the statement above reflects that he conducted the required balancing. Furthermore, we presume the trial judge applied the law correctly. I.W. Berman Prop. v. Porter Bros., 276 Md. 1, 20 , 344 A.2d 65, 76 (1975). . An amicus curiae brief was filed on behalf of the Stephanie Roper Foundation, Mothers Against Drunk Driving (MADD), the National Victim Center, and the Maryland Coalition Against Crime. 677 A.2d 602 (1996) 342 Md. 544 STATE of Maryland v. Paul Everett BROBERG.

No. 22, Sept. Term, 1995. Court of Appeals of Maryland. June 11, 1996. ⁶⁰³ Kimberly Smith Ward, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, on brief), Baltimore, for Petitioner. Kevin G. Hessler (James Robert Miller, Miller, Steinberg & Hessler, on brief), Rockville, for Respondent. ⁶⁰⁴ Russell P. Butler, Camp Springs, for Amicus Curiae, Stephanie Roper Foundation, Mothers Against Drunk Driving (MADD), The National Victim Center, and the Maryland Coalition against Crime.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, KARWACKI, BELL and RAKER, JJ. RAKER, Judge. We granted certiorari in this case to determine whether "in life" photographs, depicting a homicide victim while the victim was alive, may be displayed to the jury at trial. I. On April 25, 1993, Respondent Paul Everett Broberg was driving along a two-lane road in Frederick County.

The posted speed limit was fifty miles per hour. As Broberg drove over the crest of a hill, he struck and killed eleven-year-old Thomas Blank, Jr., who was driving a tractor across the road. At the time of the accident, Broberg's speed was estimated at approximately sixty-four miles per hour. His blood alcohol level was measured at 0.17.

Broberg was indicted in the Circuit Court for Frederick County on thirteen charges, including manslaughter by automobile, homicide by motor vehicle while intoxicated, driving while intoxicated, reckless driving, exceeding the speed limit, speed greater than reasonable and prudent, failure to reduce speed to avoid an accident, and other related offenses. Broberg was tried before a jury in the Circuit Court for Frederick County in November, 1993. During its opening statement, the State displayed two "in life" photographs of the victim: a sixth-grade school picture, and a photograph of the victim in his little league uniform. Defense counsel objected and moved for a mistrial, arguing that the photographs were irrelevant, and that they could not be shown to the jury until they were introduced in evidence. [1] The trial judge denied the motion.

The State used the photographs a second time during its direct examination of the victim's father, Thomas Blank, Sr. When Mr. Blank was shown the photographs and asked to identify the victim, he wept. Defense counsel again objected and moved for a mistrial, arguing that the photographs were irrelevant in light of the parties' prior stipulation to the victim's identity. The prosecutor, however, disputed the scope of the stipulation, stating "that's not what he stipulated to, your honor, for the record." See infra Section IV.B and note 13. The trial judge denied the motion, and the prosecutor displayed the two photographs to the jury.

Broberg was convicted of homicide by motor vehicle while intoxicated, driving while intoxicated, reckless driving, exceeding the speed limit, speed greater than reasonable and prudent, and failure to reduce speed to avoid an accident. He was sentenced to five years imprisonment with all but eighteen months suspended, a fine of $3350 with $1500 suspended, and three years supervised probation. Broberg noted a timely appeal to the Court of Special Appeals. The intermediate appellate court reversed the judgment in an unreported opinion, concluding that the photographs should have been excluded because they were of minimal probative value and were highly prejudicial.

We granted the State's petition for a writ of certiorari to resolve the issue of the admissibility of "in life" photographs in criminal cases. [2] ⁶⁰⁵ II. The State contends that admission of the "in life" photographs was within the trial court's discretion, and therefore that the Court of Special Appeals should not have reversed the trial court's decision. The State also argues that the photographs provided relevant background information to "humanize" the victim, consistent with the purposes of Maryland Code (1957, 1992 Repl.Vol., 1995 Cum.Supp.) § 761 of Article 27. Respondent argues that the trial court abused its discretion in permitting the State to use the "in life" photographs because he contends that the parties agreed to stipulate to the victim's identity, thereby eliminating the photographs' probative value.

The photographs thus served only to inflame the jury, and their probative value was outweighed by their prejudicial effect. Furthermore, Respondent argues that the error in admitting the photographs was not harmless beyond a reasonable doubt. Finally, Respondent argues that neither Article 47 of the Maryland Declaration of Rights nor § 761 of Article 27 creates a right for a homicide victim to be represented in a criminal proceeding by use of an "in life" photograph. [3] III. A. Admissibility of Photographic Evidence This Court has on many occasions considered the admissibility of photographic evidence.

See, e.g., Johnson v. State, 303 Md. 487 , 495 A.2d 1 (1985), cert. denied, 474 U.S. 1093 , 106 S.Ct. 868 , 88 L.Ed.2d 907 (1986); Cook v. State, 225 Md. 603 , 171 A.2d 460 (1961), cert. denied, 368 U.S. 970 , 82 S.Ct. 445 , 7 L.Ed.2d 398 (1962); Smith v. State, 182 Md. 176 , 32 A.2d 863 (1943). We conclude that "in life" photographs are subject to the same evidentiary analysis as other types of photographs. As we have consistently stated, the general rule regarding admission of photographs is that their prejudicial effect must not substantially outweigh their probative value. [4] See, e.g., Bedford v. State, 317 Md. 659, 676 , 566 A.2d 111, 119 (1989); Harris v. State, 312 Md. 225, 245 , 539 A.2d 637, 647 (1988); Mills v. State, 310 Md. 33, 43 , 527 A.2d 3, 7 (1987), vacated on other grounds, 486 U.S. 367 , 108 S.Ct. 1860 , 100 L.Ed.2d 384 (1988). This balancing of probative value ⁶⁰⁶ against prejudicial effect is committed to the sound discretion of the trial judge.

The trial court's decision will not be disturbed unless "plainly arbitrary," Johnson, 303 Md. at 502 , 495 A.2d at 8 , because the trial judge is in the best position to make this assessment. See, e.g., Bedford, 317 Md. at 676 , 566 A.2d at 119 ; Mills, 310 Md. at 43-44 , 527 A.2d at 8 ; Grandison v. State, 305 Md. 685, 729 , 506 A.2d 580, 602 (1986), cert. denied, 479 U.S. 873 , 107 S.Ct. 38 , 93 L.Ed.2d 174 (1986); but see Buch v. Hulcher, 180 Md. 309, 313-14 , 23 A.2d 829, 831 (1942). Photographs must also be relevant to be admissible. J. MURPHY, JR., MARYLAND EVIDENCE HANDBOOK § 1102, at 578 (2d ed. 1993 & 1995 Cum.

Supp.); see also 3 WIGMORE ON EVIDENCE § 792, at 237 (Chadbourn rev. 1981 & 1990 Supp.). We have found crime scene and autopsy photographs of homicide victims relevant to a broad range of issues, including the type of wounds, the attacker's intent, and the modus operandi. See, e.g., Clarke v. State, 238 Md. 11, 21-22 , 207 A.2d 456, 461-62 (1965). "In life" photographs are often relevant to establish the victim's identity.

See Annot., Homicide: Identification of Victim, 86 A.L.R.2d 722 , 739 (1962). The relevancy determination is also committed to the trial judge's discretion. [5] 5 L. MCLAIN, MARYLAND EVIDENCE § 403.5, at Supp. 106 (1987 & 1994 Supp.). In assessing the relevance of photographic evidence, we note that photographs may be relevant and possess probative value even though they often illustrate something that has already been presented in testimony. Grandison, 305 Md. at 730 , 506 A.2d at 602 .

As we observed in Johnson v. State , "all photographic evidence is in some sense cumulative," 303 Md. at 504 , 495 A.2d at 9 , and "[a]lthough ... cumulative, it should seldom be excluded for that reason." [6] MURPHY, supra, § 1102, at 578. The rationale for allowing photographs to be used to illustrate verbal testimony is that in some cases "photographs present more clearly than words what the witnesses were attempting to describe[.]" Reid v. State, 305 Md. 9, 21 , 501 A.2d 436, 442 (1985). [7] We have also noted that photographs do not lack probative value merely because they illustrate a point that is uncontested. Grandison, 305 Md. at 730 , 506 A.2d at 602 . For example, in Evans v. State, 333 Md. 660 , 637 A.2d 117 (1994), cert. denied, ___ U.S. ___, 115 S.Ct. 109 , 130 L.Ed.2d 56 (1994), we held that autopsy photographs were admissible in a capital sentencing proceeding even though the defendant had stipulated to the facts the photographs were offered to prove.

Judge Karwacki, writing for the Court, observed that: [A] judge should exercise his or her discretion with caution when ruling on the admissibility of photographic evidence in capital sentencing proceedings. The need for caution, however, in no way circumscribes the judge's evidentiary authority; the admission of photographs into evidence remains soundly committed to the discretion of the trial judge in capital sentencing proceedings. Applying this standard to the facts before us, we cannot say that the trial judge abused his discretion in allowing these photographs into evidence. The photographs illustrated the number of shots fired at each victim and the pattern of the victims' gunshot wounds.

It is immaterial ⁶⁰⁷ for this purpose that Evans had stipulated to the cause of death, location of wounds, etc., for "the very purpose of photographic evidence is to clarify and communicate facts to the tribunal more accurately than by mere words." Id. at 693, 637 A.2d at 133 (citations omitted). Accord Grandison, 305 Md. at 730 , 506 A.2d at 603 ("[T]he particular photographs [are not] inflammatory to the jury solely on the basis that they do not represent any issue in controversy. Further, since the photographs are mere graphic representations of undisputed facts already in evidence, their introduction could not be held to have injured the accused."). Although the trial judge possesses broad discretion regarding the admission of photographs, this discretion does not authorize the judge to admit irrelevant photographs.

For example, in Buch v. Hulcher, 180 Md. 309 , 23 A.2d 829 (1942), an action for alienation of affections, we suggested that a photograph of "plaintiff's wife closely and affectionately surrounded by her daughter and twin sons, very nice looking children and of tender years" was irrelevant, given that the wife was present in court and testified on behalf of her husband. [8] Id. at 313 , 23 A.2d at 831 . Therefore, in determining the admissibility of any photograph, the trial judge must make a two-part assessment: first, the judge must decide whether the photograph is relevant, and second, the judge must balance its probative value against its prejudicial effect. We will treat the trial judge's findings on these matters with great deference. See, e.g., Void v. State, 325 Md. 386, 393 , 601 A.2d 124, 127 (1992) (quoting Durkin v. State, 284 Md. 445, 453 , 397 A.2d 600, 605 (1979)).

See also M. Rosenberg, Judicial Discretion of the Trial Court, Viewed From Above, 22 SYRACUSE L.REV. 635, 663 (1971). B. Admissibility of "In Life" Photographs In Grandison v. State, 305 Md. 685 , 506 A.2d 580 , we applied the two-part test for the admissibility of photographic evidence to "in life" photographs. Id. at 729-30 , 506 A.2d at 602 . The defendant, Anthony Grandison, contracted to have David and Cheryl Piechowicz murdered to prevent them from testifying against him in a pending narcotics proceeding.

Id. at 697 , 506 A.2d at 585-86 . Rather than killing the two intended victims, however, the assailant mistakenly killed Cheryl Piechowicz's sister, Susan Kennedy. Id., 506 A.2d at 586 . We determined that the "in life" photograph of Susan Kennedy was relevant to the issue of her resemblance to her sister.

Id. at 729 , 506 A.2d at 602 . We upheld the admission of the photograph, concluding that there was "no arbitrariness" in the trial court's decision. Id., 506 A.2d at 602 . The Fourth Circuit later considered the same issue in United States v. Grandison, 780 F.2d 425 (4th Cir.1985), cert. denied, 495 U.S. 934 , 110 S.Ct. 2178 , 109 L.Ed.2d 507 (1990).

With regard to the relevance of the "in life" photographs, the court stated: Objections [to the "in life" photographs] were lodged on grounds of non-relevance.... [W]e perceive no strength in the argument, because [the victims] were central figures in the crimes that had been charged. They had to be identified. Id. at 429. The majority of appellate courts in other jurisdictions that have considered the admissibility of "in life" photographs have also upheld their admission.

Annot., Homicide: Identification of Victim, 86 A.L.R.2d 722 , 739 (1962). See also Drane v. State, 265 Ga. 255 , 455 S.E.2d 27 (1995); State v. Ash, 526 N.W.2d 473 (N.D. 1995); State v. Brett, 126 Wash.2d 136 , 892 P.2d 29 (1995); State v. Mergenthaler, 263 Mont. 198 , 868 P.2d 560 (1994); State v. Walker, 252 Kan. 279 , 845 ⁶⁰⁸ P.2d 1 (1993); State v. Williams, 313 Or. 19 , 828 P.2d 1006 (1992), cert. denied, 506 U.S. 858 , 113 S.Ct. 171 , 121 L.Ed.2d 118 (1992); State v. Bertram, 591 A.2d 14 (R.I.1991); State v. Ryan, 226 Neb. 59 , 409 N.W.2d 579 (1987); Com. v. Nadworny, 396 Mass. 342 , 486 N.E.2d 675 (1985); State v. Aswegan, 331 N.W.2d 93 (Iowa 1983); State v. Brown, 306 N.C. 151 , 293 S.E.2d 569 (1982), cert. denied, 459 U.S. 1080 , 103 S.Ct. 503 , 74 L.Ed.2d 642 (1982); Burgess v. State, 339 So.2d 121 (Ala. 1976); People v. Sullivan, 97 Mich.App. 488 , 296 N.W.2d 81 (1980), cert. denied, 308 N.W.2d 109 (1981). A number of these jurisdictions have adopted a two-pronged test for admissibility of "in life" photographs similar to our own standard. See, e.g., People v. Stevens, 76 N.Y.2d 833 , 560 N.Y.S.2d 119, 120 , 559 N.E.2d 1278, 1279 (1990); People v. Hendricks, 43 Cal.3d 584 , 238 Cal.Rptr. 66, 71-72 , 737 P.2d 1350, 1356 (1987).

A minority of jurisdictions have taken the position that "in life" photographs are irrelevant and prejudicial, and therefore have concluded that use of "in life" photographs is disfavored. See, e.g., Com. v. Rivers, 537 Pa. 394 , 644 A.2d 710, 716 (1994); Valdez v. State, 900 P.2d 363 , 381 & n. 83 (Okl.Crim. App.1995). A few courts have articulated a higher standard for admission of photographic evidence; for example, Pennsylvania courts have suggested that if photographs are inflammatory, they must possess "essential evidentiary value" to be admissible.

Com. v. McCutchen, 274 Pa.Super. 96 , 417 A.2d 1270, 1272 (1979), vacated on other grounds, 499 Pa. 597 , 454 A.2d 547 (1982) ("essential evidentiary value" standard upheld, but photographs excluded by trial court found to possess essential evidentiary value, although graphic). The rationale for this elevated standard with respect to photographs is that because they often merely repeat or restate evidence that has been presented in other forms, they do not justify any additional prejudice to the defendant. See Rivers, 644 A.2d at 717 . We have previously rejected this reasoning and have declined to apply an elevated standard of admissibility to photographic evidence.

Bedford, 317 Md. at 677 , 566 A.2d at 120 ("Bedford alleges that where a photograph has only minimal significance, and no essential evidentiary value, the trial judge should be more inclined to exclude it if it is inflammatory. Nonetheless, we have not adopted such a test and require only that the trial judge not abuse his discretion."). We have found no jurisdiction, however, that has adopted a per se rule barring the use of "in life" photographs. When appellate courts have disapproved the admission of "in life" photographs, they have generally either found that the photographs were irrelevant, or that their probative value in the particular case was outweighed by their prejudicial effect.

See, e.g., Rivers, 644 A.2d at 716 ; Parker v. State, 292 Ark. 421 , 731 S.W.2d 756, 763 (1987); Stevens, 560 N.Y.S.2d at 120 , 559 N.E.2d at 1279 ; Boutwell v. State, 659 P.2d 322, 326 (Okl.Crim.App.1983). Furthermore, even those jurisdictions that have consistently criticized the use of "in life" photographs have upheld admission of the photographs where they were clearly relevant. See, e.g., Shelton v. State, 793 P.2d 866, 870 (Okl.Crim. App.1990).

For example, although the Oklahoma courts have often expressed disapproval of "in life" photographs, see, e.g., Rawlings v. State, 740 P.2d 153, 162 (Okl.Crim.App. 1987), the Oklahoma Court of Criminal Appeals upheld the admission of an "in life" photograph of a murder victim despite the defendant's offer to stipulate to identity based on the victim's dental X-rays. Shelton v. State, 793 P.2d at 870 . The court upheld the admission because the photograph was necessary to support other testimony by people who had observed the victim with the attacker before the incident. Id.

In addition, even where courts have disapproved the use of "in life" photographs, errors in admission have seldom been found prejudicial. See, e.g., Valdez, 900 P.2d at 381 ; Rivers, 644 A.2d at 716 ; People v. Cox, 53 Cal.3d 618 , 280 Cal.Rptr. 692, 716 , 809 P.2d 351, 375 (1991), cert. denied, 502 U.S. 1062 , 112 S.Ct. 945 , 117 L.Ed.2d 114 (1992); Stevens, 560 N.Y.S.2d at 121 , 559 N.E.2d at 1280 . C. Effect of Stipulations We must next consider the relevance of the "in life" photographs in this case in light of Respondent's contention that the parties stipulated to the identity of the victim. ⁶⁰⁹ By definition, a stipulation is an agreement between counsel akin to a contract. See Burke v. Burke, 204 Md. 637, 645 , 106 A.2d 59, 63 (1954).

Like contracts, stipulations are based on mutual assent and interpreted to effectuate the intent of the parties. [9] Id., 106 A.2d at 63 . Parties are generally held bound by their stipulations. Bloom v. Graff, 191 Md. 733, 736 , 63 A.2d 313, 315 (1949). Although a stipulation by definition must be based on mutual assent, parties frequently dispute both the scope of the stipulation and the extent to which it precludes the parties from offering other evidence of the stipulated fact. [10] As Wigmore observed: A fact that is judicially admitted [stipulated] needs no evidence from the party benefiting by the admission.

But his evidence, if he chooses to offer it, may even be excluded; first, because it is now ... immaterial to the issues ...; next, because it may be superfluous and merely cumber the trial ...; and furthermore, because the added dramatic force which may sometimes be gained from the examination of a witness to the fact (a force, indeed, which the admission is often designed especially to obviate) is not a thing which the party can be said to be always entitled to. Nevertheless, a colorless admission by the opponent may sometimes have the effect of depriving the party of the legitimate moral force of his evidence; furthermore, a judicial admission may be cleverly made with grudging limitations or evasions or insinuations (especially in criminal cases) so as to be technically but not practically a waiver of proof. 9 WIGMORE ON EVIDENCE § 2591, at 824-25 (Chadbourn rev. 1981 & 1990 Supp.) (citations omitted). In determining whether to admit evidence that is offered to prove a stipulated fact, courts must often balance the competing interests of the parties. State v. Gilmore, 332 So.2d 789, 795-96 (La.1976).

The party who offers to stipulate is entitled to obtain the benefit of his bargain, i.e., preventing the use of inflammatory evidence. Id. The party benefiting from the stipulation, however, may also be entitled to the "legitimate moral force of his evidence." WIGMORE, supra, § 2591, at 824. We believe, as Wigmore suggests, that because of these competing considerations, "there should be no absolute rule on the subject ... [and] the trial court's discretion should determine whether a particular admission is so plenary as to render the first party's evidence wholly needless under the circumstances." Id. at 825, cited in Gilmore, 332 So.2d at 795 .

See also Burgess v. State, 339 So.2d 121, 123-24 (Ala. Crim.App.1976); Annot., Criminal Trial— Proving Conceded Fact, 91 A.L.R. 1478 (1934). We therefore conclude that the trial judge should retain the discretion to determine whether evidence may be admitted to prove a stipulated fact. In exercising this discretion to determine whether extrinsic proof of a stipulated fact is admissible, trial courts should consider, inter alia: (1) the intent of the parties, if any, regarding presentation of the proffered evidence; (2) the incremental probative value of the evidence as compared to the stipulation, (i.e., where the evidence provides greater detail than the stipulation); and (3) the potential unfair prejudicial impact of the proffered evidence. ⁶¹⁰ We shall review the trial court's decision in this regard for abuse of discretion.

IV

A. Probative Value Versus Prejudicial Effect Applying the two-pronged test for the admission of photographic evidence to the "in life" photographs in this case, we conclude that the trial court did not abuse its discretion in admitting the photographs. In every homicide case, the State must establish the identity of the person killed. Jones v. State, 188 Md. 263, 272 , 52 A.2d 484, 488 (1947) ("In a homicide case the proof ... [must] establish ... the fact that the person for whose death the prosecution was instituted is dead...."). Either "in life" photographs or