Legal Commentary

Supreme Court Delines to Hear Challenge to Victim Impact Videos in Death Penalty Trials

By TChris

For quite some time, prosecutors were prevented from offering "victim impact" evidence during the penalty phase of a death penalty trial. This made perfect sense, because the decision whether a murderer should be executed shouldn't depend upon how sympathetic the victim could be made to appear, or how many grieving friends and relatives were left behind. That changed in 1991.

Writing for a 6 to 3 majority, then-Chief Justice William H. Rehnquist said prosecutors could balance the virtually unlimited defense mitigation evidence by offering "a quick glimpse of the life" of the victim. But the court laid out little specific guidance beyond saying that victim impact evidence must not be "unduly prejudicial."

The "quick glimpse" language gave birth to an industry that produces "life of the victim" videos, set to music. It is unfortunate that the Supreme Court recently declined to decide whether that kind of video evidence crosses the line that the Court drew in 1991. [more ...]

The linked story describes some "impact" videos, including this one:

The images are those of any childhood: a toddler wearing a snowsuit; a young boy fishing with his dad, a teenager mugging for the camera with his friends. Green Day's modern prom-night classic "Time of Your Life" plays in the background.

Think about it. Should the death penalty depend upon whether the victim looked cute when he was fishing with his dad? Or whether the victim came from an intact, caring family? Or whether the videographer selected music that was capable of moving the jury?

"Everybody had tears in their eyes, even the security guards," Jesse's mother, Dawn Heller, said of the DVD [described above] ....

That is just the point. Fueled by technology and a powerful victims' rights movement, "victim impact videos" are becoming staples in criminal trials nationwide. The increasingly sophisticated multimedia presentations depict victims from cradle to grave, often with soft music in the background, tugging on the heartstrings of jurors. Defense lawyers say the videos are highly prejudicial and have sought to have them banned.

We live in a media-driven society that goes bonkers whenever a cute white girl disappears. Victim impact videos exploit jurors' attraction to attractive people. Victim impact videos show the victims when they were cute kids hanging out with family members. They don't come close to presenting a balanced view of the victim's life, flaws and all.

But should the death penalty depend upon the arbitrary value the jury assigns to the victim's life based on a professionally prepared video? Is a murderer more worthy of death if he kills a white person from a good neighborhood than he would be if he killed a black person who grew up in a bad environment? Is killing a homeless alcoholic a less serious crime than killing a former prom queen?

There are two problems with using videos to provide a "glimpse" of the victim's life. The first is that (particularly when set to music) they are insanely prejudicial, a naked appeal to sympathy. In his dissent to the denial of certiorari in two cases raising this issue, Justice Stevens wrote:

"As these cases demonstrate, when victim impact evidence is enhanced with music, photographs, or video footage, the risk of unfair prejudice quickly becomes overwhelming," wrote Stevens, an avowed opponent of capital punishment.

(In one of the cases, Justice Stevens was joined in dissent by Justices Breyer and Souter, who also would have heard the case. It takes four votes to grant a petition, thereby bringing the case before the Court.)

The second flaw with video evidence is of larger importance. Video evidence is more likely to exist when the victim comes from the kind of well-functioning family that takes pictures or uses a camcorder to chronicle a child's life: birthday parties and concert performances and little league games. If the murder victim comes from an impoverished background, born to a crackhead mother and a missing father, there aren't going to be a bunch of family pictures and videos that can be strung together to show the "impact" of the victim's death.

Should the death penalty depend upon the arbitrary value the jury assigns to a victim's life? Should the death penalty be imposed when the victim came from an affluent background but not when the victim was born into poverty? What conceivable difference should it make to the application of the death penalty whether the victim was cute when she was 12, or gave a nice valedictorian speech at graduation? What right do we as a society have to say victim A's life is worth more than victim B's, so you should be executed if you kill victim A but not if you kill victim B?

The arbitrariness of the death penalty is a primary argument against it. The use of videos as "victim impact" evidence only increases the arbitrariness of death penalty decisions. The death penalty should not depend upon how much the jury likes the victim, or how moved they are by the song that accompanies an impact video.

Full post as published by TalkLeft on November 29, 2008 (boomark / email).