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November 30, 2008

How big is the risk that victim videos are more prejudicial than probative?

This article appearing yesterday in the Washington Post discusses the growing trend of using "victim videos" in criminal cases. The article is headlined "Poignant Videos of Victims Valid in Court: Justices Decline to Weigh Use of Such Portrayals," and here are some excerpts:

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.

But the Supreme Court this month declined to hear challenges to two such videos, including one of Sara Weir, a dark-eyed 19-year-old who was raped and murdered in 1993.  The video contains more than 90 photos of Weir and is set to the haunting tones of Enya.

As a result of the court's decision, experts say the use of such videos will probably accelerate in coming years. "The publicity from the Supreme Court cases is going to make more victims and prosecutors aware of the possibility of technology-aided victim impact statements," said Margaret Garvin, executive director of the National Crime Victim Law Institute. "And I think that's a good thing."

Prosecutors vigorously defend the videos, which are presented as part of "victim impact evidence" in death penalty and non-capital homicides and are usually put together by families, sometimes with help from law enforcement or funeral homes.  With defendants able to present extensive "mitigating evidence," prosecutors say multimedia is often the best way to document the life that was extinguished and the pain of those left behind.

While the Post piece provides a somewhat pro-victim perspective on victim videos, T Chris here at TalkLeft provides a defense view on problems with victim videos. 

Because I am a strong believer in victims' rights at sentencing, I tend not to be too troubled by victim videos (especially if they are kept relatively brief).  I certainly can see potential problems with excessive reliance on victim videos, but I would general trust trial judges to be able to limit effectively the use of videos that are more likely to be prejudicial than probative.

November 30, 2008 at 10:05 PM | Permalink


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I don't see a huge problem with victim impact statements as such, on that we agree. But I am not so optimistic that trial judges will do a good job of policing these videos. First, unlike a written statement, a video contains many more elements-it's called multimedia for a reason-and that makes it much easier for prejudicial information to slip in or to have otherwise innocent information framed in a harmful way. Most judges lack expertise in the way that media influences emotional and psychological responses.

It seems to me a grave error to assume that videos in the courtroom are just the stereotypical VIS with an extra bit of flash; that's not how the brain works at all. The format of the message matters, and in that war the victim has a clear advantage over the defendant.

Posted by: Daniel | Dec 1, 2008 1:11:16 AM

Hmmmmm ... no confrontation clause problems with putting a music video on as evidence, I'm sure. It's simple, after all, to cross examine a DVD.

If the impact statements are put on AFTER sentencing is accomplished, as is the case here in Texas, I suppose I wouldn't care much, though I definitely find nothing particularly probative in setting a narration to music and images instead of having a person tell it themselves. (Daniel is right about the brain science-related reasons that's a bad idea - the medium is the message, Marshall McLuhan taught us.) But for a pre-sentencing VIS, one that actually plays a role in any decision by the court, I don't see how a video passes Confrontation Clause muster, even if SCOTUS allowed it.

Posted by: Gritsforbreakfast | Dec 1, 2008 9:07:41 AM

I assume that I, as defense counsel, get to employ background music during my closing and will be allowed to play a mitigation video during penalty phase.

Posted by: Frank Carlson | Dec 1, 2008 10:10:33 AM

Re: "no confrontation clause problems with putting a music video on as evidence, I'm sure. It's simple, after all, to cross examine a DVD."

Ordinarily, the confrontation clause doesn't apply at sentencing. While some circuits have recognized that it is an open question whether the confrontation clause applies at a capital sentencing proceeding, I'm not aware of any circuits that have held that it does, and at least the 7th has explicitly held that it does not. So I don't believe there's any recognized constitutional bar to this practice.

What's the point of a victim impact statement *after* sentencing?

Posted by: Prosecutorial Indiscretion | Dec 1, 2008 10:45:57 AM

The point is that the lay people will feel good about the prosecutors that make fun of them behind their back.

Posted by: S.cotus | Dec 1, 2008 11:45:06 AM

The Confrontation Clause applies to sentencing in Texas. See Russeau v. State, 171 S.W.3d 871, 880-81 (Tex. Crim. App. 2005), cert. denied, 548 U.S. 926, 126 S.Ct. 2982, 165 L.Ed.2d 989 (2006). Because Texas (currently) does not allow victim impact evidence until after sentencing, I don't have a problem with videos, either. However, the upcoming year is one of mischief--the Legislature is in session--so anything and everything is on the table.

Posted by: | Dec 1, 2008 11:48:17 AM

This is such a non-issue.

Posted by: federalist | Dec 1, 2008 1:01:23 PM

Federlist, I agree. It is a non-issue. Obviously musical interludes about the so-called victim's life have no place in court.

Of course, to many all lay people are non-issues.

Posted by: S.cotus | Dec 1, 2008 1:14:28 PM

Uh, S.cotus, if the people who write the rules say that it's admissible, then it's admissible.

Posted by: federalist | Dec 1, 2008 1:47:17 PM

"Uh, S.cotus, if the people who write the rules say that it's admissible, then it's admissible."

1) What "rules";
2) What people;
3) and do those rules establish absolute admissibility of any and all crap by and for the little people at sentencing?

Posted by: S. COTUS | Dec 1, 2008 3:42:39 PM

"What's the point of a victim impact statement *after* sentencing?"

Nothing, it's completely pointless grandstanding, which is why it doesn't matter if it's a music video. If a VIS weren't just politicized BS, there'd be more serious issues to complain about.

Posted by: Gritsforbreakfast | Dec 1, 2008 4:52:16 PM

VIS, just "politicized BS". Of course, that's how us law-and-order types think about most of the BS, er, mitigation evidence, proffered in favor of capital defendants. Of course, since the courts have decided that the Constitution requires that defendants be given the opportunity to show how bad they had it as kids, the people have responded with victim impact evidence.

Personally, I'd toss it all. But why in the world should we disarm ourselves to benefit a bunch of murderers?

Posted by: federalist | Dec 1, 2008 5:05:12 PM

Victims and their families should have the right to have a multi-media presentation after waiting years for a trial and putting up with the defenses shenanigans at trials and during sentencing. It is not a justice system, it is a legal system with nearly all rights accorded to the accused and few to none to the victim.

The T Chris article is completely despicable. It attempts to cast the murderer as a potential victim and take all rights away from the person who was raped or murdered. The convicted murderer in a death penalty case has created multiple victims and has taken away any potential the victim had. The victim's family can never see that person again-never. The person cannot grow older. Perhaps T Chris needs to imagine someone raping his/her sister and then killing her and then telling him/her that it is inadmissable for him/her to show a "cute" video of her after the conviction, because it would not be fair to the murderer.
Meanwhile, the defense attorneys can delay the trials for years with grandstanding and experts and the defendant can sit and smile and grow older and know that it is all a game played by people that collect checks and do little for justice. Common sense should be allowed in American courtrooms and victims should be heard from beyond the grave.
As you can tell I am a victim and know or a little abit about this topic than many who speak of it in only abstract and distant academic terms.

Posted by: Arthur | Dec 2, 2008 2:43:12 PM


Victims have no “rights.” At least no free-standing constitutional rights at trial. They don’t have a right to testify, and they don’t have a right to making charging decisions. Of course, since many “victims” are criminals themselves, they have some right to assert their right not to incriminate themselves.

Secondly, trials are not about “the victim” (you are being sold a goods by people that get paid more than you and mock lay people behind their backs.) Trials are about legally admissible evidence being weighed by a trier of fact.

Perhaps if you really cared about justice (and I doubt you do) you would work to make sure that all cops are well-paid and well-educated. There is no reason that any cop should make less than $60,000 per year and have anything less than a Masters Degree from a real school (not an online scam).

Finally, delays in trials are normal. Many of them are at the request of the prosecution. Many of them are the result of the prosecution not providing evidence in a timely manner. Perhaps you wish to argue against Brady or in favor of more narrow discovery, but just come out and say that (rather that making vague assertions).

I await your answer (unless you are a felon or non-lawyer, in which case your opinion doesn’t matter to me.)

Posted by: S.cotus | Dec 2, 2008 4:57:11 PM

S. Cotus,
Wow. I am not a felon but I am worried about your moral compass given your discussions and a bit worried about you. So I suppose you realize that victims have many long over-due rights:

* The right to attend criminal justice proceedings;
* The right to apply for compensation;
* The right to be heard and participate in criminal justice proceedings;
* The right to be informed of proceedings and events in the criminal justice process, of legal rights and remedies, and of available services;
* The right to protection from intimidation and harassment;
* The right to restitution from the offender;
* The right to prompt return of personal property seized as evidence;
* The right to a speedy trial; and
* The right to enforcement of these rights.

The scope of victims’ rights amendments varies from state to state. Many are limited to victims of felonies or victims of violent offenses. A few specifically extend to victims of juvenile offenders. In general, the amendments give victims constitutional rights to:

* be treated with fairness, dignity and respect;
* be informed of proceedings and events, such as the release of the defendant;
* attend the trial and other proceedings;
* be heard at critical points in the criminal justice system, such as sentencing or parole hearings; and
* be awarded restitution from a convicted offender. (http://www.victimlaw.info/victimlaw/pages/victimsRight.jsp)

I care about justice. The discussion was about victim's rights to present how a violent crime had affected them (and their family and friends-forever), not whether a police man is fairly paid. You can take that up with all of our brethren who file class action lawsuits and pocket 30-40% of the millions while the consumers get coupons and 3 dollar checks.

Delays in trials are excessive and deny victims the right to speedy trials especially in crimes of violence. I am for more narrow discovery in many instances.

I suspect most opinions do not mean much to you because you live in a world where kindness and caring do not exist, my condolences.

Posted by: Arthur | Dec 3, 2008 10:03:36 AM

Artur, Are you a lawyer? If not, I don’t care what you think. Moreover, my morals are fine. I am a very moral person. I have a great moral compass. Many people agree with me.

Most of your comments indicate a lack of respect for the constitution, and a need to see others punished simply because you like seeing other people punished.

But, even though I don’t like talking to non-lawyers, I will take each of your argument in turn.

“Victims” don’t have a constitutional right to attend any criminal proceeding beyond that of a member of the public. Courtrooms can be closed for good reason. There are often good reasons that alleged victims should not see what is going on. They might change their testimony and lie (as they like to) or they might see an undercover cop. Also, they tend to act up in the courtroom.

There is no constitutional right to apply from monies a state fund for compensation unless there is such a fund. They can sue the defendant if they want.

There is absolutely no constitutional right of a so-called victim to be “heard” in a criminal proceeding. In fact, there is nothing they can do about a prosecutor that decides not to prosecute. Nor should there be. The fact that you assume that there is shows a lack of moral compass on your part.

There is no constitutional right to be informed of available services.

There is no constitutional right to police protection. If you want people protected, argue for more funding for the police.

There might be a right to sue a defendant for restitution. But there is no constitutional right to have the prosecutor a “victim’s” lawyer in obtaining a restitution judgment.

Prosecutors often argue against return of property to be used as evidence. I will defer to them on this.

So-called victims have absolutely no enforceable right to a speedy trial of a defendant. While some STAs have this in mind, it is not constitutional in nature. In fact, there is no right to ANY trial. If we (that is, lawyers) decide that defendants should not be charged, you need to understand that there won’t be a trial.

The victim’s rights “movement” is an industry. It is run by lawyers that can’t hack representing real clients, but want to troll you people into paying money and providing grants so that they can file briefs and pretend to actually be litigating things. It is a fairly easy retirement job with little or no accountability. I respect the lawyers involved in this, because they are making money.

Then you end with some blather about “justice.” Strangely, you don’t seem to care too much about victims of state action who might never get “justice” because the defense of qualified immunity has been invoked.

Anyway, you people don’t have a right to a speedy trial, and the sooner you understand it, the adults can get back to work.

PS: I am very kind and caring. I won several awards for being kind and caring. How many did you win?

Posted by: S.cotus | Dec 3, 2008 12:50:16 PM

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