Attorney Elizabeth Franklin‑Best provides a brief overview of an appellate oral argument she presented before the South Carolina Supreme Court on behalf of a client whose case progressed from trial loss, through the Court of Appeals, to a petition for a writ of certiorari that was granted. The central issue in the argument was whether an explicit, pornographic photograph/video should be admitted as evidence. Franklin‑Best argues that the material is shocking, obscene, and offers little probative value, invoking Rule 403’s balancing test and emphasizing that the evidence could prejudice the jury. She suggests alternative ways to educate the jury—such as investigator testimony—without exposing jurors to the graphic content. The bench (Speaker B) probes the necessity and impact of the evidence, questioning whether the photograph is essential physical proof, how its exclusion might affect the defense’s narrative, and whether the shocking nature of the alleged conduct already provides sufficient gravity. The dialogue highlights the tension between the need to convey the defendant’s alleged sexual fetish and the risk that graphic evidence could unduly sway jurors, potentially tipping the scales in a case where the underlying factual support is thin. Franklin‑Best also references the broader practice in child‑pornography prosecutions, noting that such cases are routinely tried without showing the actual pornographic material to jurors.
Chapters
Hey, um, this morning I want to share with you a brief snippet of a video of an oral argument that occurred before the South Carolina Supreme Court. I had the privilege of representing this client up there not too long ago, and just kind of gives you an idea of like what it is that appellate lawyers do. This was a client who had gone to trial, who had lost at trial, and and now appeal this case to the South Carolina Court of Appeals, where we lost. We lost there, so we continued to appeal up to the South Carolina Supreme Court. They granted what's called like a petition for writ of certiorari. So they agreed to look at his case. So we filed some additional briefing in that case, and then they scheduled it for oral argument. And so this is kind of that last piece of that journey. This is us arguing before the South Carolina Supreme Court. On behalf of this client. So, it's just something that people don't typically see, so I thought maybe some of you might find it interesting. If you have any questions about it, please feel free to call us at our office. We can be reached at 803-445-1333. Thanks. I mean, this photograph was just obscene. Shocking, it was rude, it was offensive by accepted standards of morality and decency. It is pornography. I mean, that's why it was created. That was the purpose of its creation. That's why it was on his phone. So, and there was absolutely no reason to show that to a jury. I mean, even if we can see that there is some role for education here, there are ways to do it that do not involve exposing our juries to pornography. I mean, every day in America, prosecutors are prosecuting child pornography cases. And they're doing it without jurors ever having to confront the pornography. You know, there is an acknowledgment—
That doesn't make any sense to me. They try pornography cases without introducing the physical digital evidence of pornography?
Child pornography cases in America are tried without ever showing the jury porn.
Well, that doesn't mean that's the only way.
No, it doesn't mean it's the only way, but it does mean that it is possible to educate a jury about some of these shocking events without actually If this— using them to it—
if this photo had not come in, this video had not come in, and video didn't go in, would that have left room for defense counsel to argue, ladies and gentlemen, all you got is the children's word, you don't have any physical proof this stuff even happened?
I mean, I would argue that this photograph is not physical proof that the children—
no, it's physical proof that he had this fetish, that he had the fetish, which there are ways with the intent to arouse himself. Certainly.
Okay. And why, uh, the investigator in the case could not have testified to what was contained on the video. I mean, that would be like another way of educating the jury without actually exposing the jury to it.
So what you're saying is on a 403, you're riding along with these scales that the judge is balancing under the test, and then the, then the picture just boom, just kills the 403.
I think it does. I mean, I think this— I think this video or this picture is shocking.
It is shocking, but what, what he is accused of having done with these children is also shocking.
It absolutely—
in a way, it seems to me that if the jury simply sees or hears what he is alleged to have done with this, with these children without knowing that he was doing it this is gonna sound really weird, but without knowing that he was doing it for sexual gratification, it almost reduces the shocking impact of what he did to the kids by realizing that, I mean, it's not just him being mean and disgusting, it's him, not that it's better, but he's doing it for the purpose of achieving sexual gratification.
I mean, I, you know, I agree with that, but I mean, sort of on the flip side of that, I mean, if you've got a case like this where the allegations themselves are so horrific but the evidence in support of them is really quite thin, then the introduction of this sort of picture is the kind of thing that can tip the scales.
But in a way, I guess what I'm— in my mind, I'm wondering if this— showing this photograph of what he what he did to his girlfriend, similar thing he did to his girlfriend, doesn't kind of keep the focus of the fact-finder on the case itself instead of on the disgusting quality of what he did.
I cannot imagine that the jury in this case would have had any other experience other than one of just revulsion and disgust when they saw this. I mean, it, I don't underst— it doesn't seem to me that they could have sort of gotten over this idea that this is just a really disgusting human being and one who is more likely to have actually committed these crimes.
