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How unfair is it to use Enya to make jurors want to put a murderer to death?

The Supreme Court declines to hear 2 cases about "victim impact" evidence in death sentencing, and 3 Justices protest:

In the cases denied review on Monday, the evidence was composed of a 20-minute videotape in one case, and a 14-minute videotape in the other. In each case, the... 20-minute presentation included dozens of still photographs and video clips depicting the victim?s life, set to the music of recording star Enya, with a voice narration by the victim?s mother. The 14-minute display included 118 photographs of the murdered couple, with a narration by their children....

Justice Stevens described the videos as ?a far cry from the written victim impact evidence at issue? in the Court?s two prior rulings on such evidence. ?As these cases demonstrate, when victim impact evidence is enhanced with music, photographs, or video footage, the risk of unfair prejudice quickly becomes overwhelming."

Is it unfair to stoke emotions with Enya?

While the video tributes at issue in these cases contained moving portrayals of the lives of the victims, their primary, if not sole, effect was to rouse jurors? sympathy for the victims and increase jurors? antipathy for the capital defendants.?

The test, under the existing Supreme Court case law -- from Payne v. Tennessee -- is whether the evidence "is so unduly prejudicial that it renders the trial fundamentally unfair." What sort of music/video presentation would cause you to take leave of your senses?

Full post as published by Althouse on November 10, 2008 (boomark / email).