Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
The courts tip toward permitting the evidence: the prejudicial effect must "substantially outweigh" the value in proving something the jury is asked to decide, but there is a recognition here that passion can overtake reason. Still, reason without any element of emotion is not possible, and not desirable.
There is no way to sanitize the fight for political advantage out of the release of information, though one hopes for the best from journalists and politicians. But when should we who are taking in all this material call "politics" (or worse) on people who want to show photographs? The video of the slaughter of Nick Berg was released to terrorize and intimidate and revel in revenge. The photographs of Abu Ghraib are released, at least in part, to inform, to draw attention to a problem, and to inspire resolve to take action to solve it. As time wears on and as further photographs are released, less noble motives seem to be in play.
But it may be that those who release the images want to push and push and make sure the public doesn't turn away from the problem. But why then shouldn't people who care about other matters--the death penalty and abortion, for example--compete for attention with gruesome photographs? Why shouldn't people who want to steel our nerves for military action stoke our passions with an endless stream of the many, many pictures of the 9/11 victims that we have never seen?
Mickey Kaus raises the important point that opponents of the war should be the most opposed to the release of the photographs, since they tend to think that in fighting this war, we face not a limited number of hardcore enemies, but large numbers of persons whose minds might be turned in our favor or inflamed into hatred. If the world is full of people sitting in judgment about whether or not to see us as their enemy, then we should want to withhold inflammatory photographs.
Quite aside from that, since it is harmful to a person to make him stand naked and since that harm is magnified if he is also photographed, the display of the photograph is a further harm to the person in the photograph.
Whatever we may think about the initial use of the photographs, the release of repetitive photographs is different. The release of some of the pictures has made us care deeply about the problem and has created a capacity to picture what we hear in verbal descriptions. I thoroughly agree with a point Senator Clinton made in the hearing on Friday: we should have been able all along to fathom the problem, because we had written descriptions. The pictures have made such an impression precisely because, though we seem so often to be creatures of language, we do not really understand without pictures. But now that we have seen some of the pictures, can we not begin to understand the written word?