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Court Denies Review of Use of Victim Impact Videos

By Amy G. Doehring, Litigation News Associate Editor – February 6, 2009

The U.S. Supreme Court’s recent denial of certiorari in Kelly v. California and Zamudio v. California has left unanswered questions as to what victim impact evidence can be shown to a jury in capital cases.

Capital Cases
“Should victims be heard at sentencing? Yes. May videos be appropriate in some circumstances? Possibly. But in capital cases, the Supreme Court needs to give guidance,” notes Michael A. Baldassare, Newark, NJ, chair of the Section of Litigation sentencing subcommittee of the Criminal Litigation Committee.

“There needs to be some sense of proportion and propriety when we ask a jury to decide whether we take a life. Death is different,” Baldassare says.

Victim Impact and Due Process
By denying review, the Supreme Court essentially declined to address whether showing the jury a victim impact video during the sentencing phase of a capital case comports with due process. In both cases, the jury was shown a video containing a montage of pictures of the victims with a musical soundtrack, and the defendants were sentenced to death.

Dissent to Denial of Certiorari
Justices John Paul Stevens and Steven G. Breyer dissented from the Court’s denial of certiorari. In doing so, Justice Stevens observed that only since the Supreme Court’s decision in Payne v. Tennessee in1991 has victim impact evidence been permitted in capital cases.

In Payne, the Court allowed the admission of testimony from the victim’s mother about the impact of the crime on her grandson. The Payne opinion held that such evidence may be introduced during the sentencing phase of a capital case provided that it is not “so unduly prejudicial that it renders the trial fundamentally unfair.” Justice Stevens also dissented from the decision in Payne.

Justice Stevens’s Dissent
Reaffirming his positions in the Payne dissent in his remarks regarding the Court’s most recent denial of certiorari, Justice Stevens stated that victim impact evidence generally is “not probative of the culpability or character of the offender or the circumstances of the offense.”

Justice Stevens recognized that the “primary, if not sole effect” of the videos “was to rouse jurors’ sympathy for the victims and increase jurors’ antipathy for the capital defendants,” thereby inviting a “verdict based on sentiment, rather than reasoned judgment.” He concluded that the Court should have reviewed the use of the videos in capital cases to provide lower courts with guidance as to what is “unduly prejudicial” and “fundamentally unfair” victim impact evidence.

Justice Breyer agreed that the Court should have granted certiorari because of the difficulty courts have in “drawing the line between what is, and is not, constitutionally admissible” victim impact evidence.

The Role of New Technology
The ease of creating the videos leads to questions about how victim impact videos may be used in the future. Baldassare says he can see the use of this type of evidence in other criminal cases, including white-collar cases. “Imagine the videos that could be shown of people who lost everything, all of their hard-earned money, who are homeless, because of an executive’s corporate fraud,” he says.

“Creating these videos is relatively easy with today’s computer and video technology—and only becoming easier as more and more photographs and home videos are captured digitally,” notes Gregory Shelton, Seattle, cochair of the Section’s Technology for the Litigator Committee.

Use of Videos by Defendants
Another possible trend is defendants using videos to show mitigating circumstances at sentencing, says Anthony J. Colleluori, Woodbury, NY, former chair of the sentencing subcommittee of the Section’s Criminal Litigation Committee.

“Defense attorneys can put together dramatic videos that will force juries to deal with the issues that lie behind bringing a defendant before them. Poverty, abandonment, abuse, hunger, death of loved ones, violence, and prejudice can all be very evocative when played out on a video,” Colleluori observes.

Keywords: Victim impact evidence, videos, technology, Kelly v. California and Zamudio v. California, due process


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