¶1dissenting.
¶2[¶ 33] I must respectfully dissent. In my judgment, we neither adopted nor applied in. State v. Robbins, 666 A.2d 85 (Me.1995) the three-part test used by the court in this case to determine the admissibility of a photo array. We simply observed in a footnote its use in another jurisdiction. See Robbins, 666 A.2d at 88 n. 7. Instead, we found that the court erred in admitting the photo array because it served no purpose. See id. at 88. In addition, we found in Robbinsthat the admission of the photo array was harmless error. See id.
¶3[¶ 34] I would not adopt the three-part test. I would continue to leave the decision to the broad discretion of the trial court. See id. at 87. Further, I would find any error harmless in this case as well. The lines behind the defendant in the picture did not so clearly identify the picture as a “mug shot” to inform the jury that the defendant may have a prior criminal record. Even if jurors understand the significance of the lines, they are intelligent enough to assume that the photo was undoubtedly taken when the defendant was arrested on the pending charges.