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November 10, 2008

Justices talk about victim impact evidence in cert. denial

As detailed in this SCOTUSblog post, Justices Stevens and Breyer commented on the Supreme Court's decision to deny cert in an interesting victim-impact case.  Here are the basics from the SCOTUSblog report:

The Supreme Court refused on Monday, over the protests of three Justices, to provide new guidance on the kinds of “victim impact” evidence that may be put before jurors to try to convince them to impose a death sentence. Specifically, the Court turned down two appeals seeking to challenge the use of music and video portrayals that may be highly emotional. It would have taken the votes of four Justices to grant review; three said the Court should have examined anew that kind of evidence....

“In the years since Payne was decided,” Stevens wrote Monday, “this Court has left state and federal courts unguided in their efforts to police the hazy boundaries between permissible victim impact evidence and its impermissible, ‘unduly prejudicial’ forms….Having decided to tolerate the introduction of evidence that puts a heavy thumb on the prosecutor’s side of the scale in death cases, the Court has a duty to consider what reasonable limits should be placed on its use.”

Justice Stephen G. Breyer said in dissent from the denial: “I understand the difficulty of drawing a line between what is, and is not, constitutionally admissible in this area. But examples can help elucidate constitutional guidelines.” The Court, he added, should have granted review of the two new cases “in an effort to do so.”

Justice David H. Souter said he, too, would have heard one of the cases; he did not write separately, however.... The cases denied review were Kelly v. California (07-11073) and Zamudio v. California (07-11425). While Justices Breyer and Stevens were in favor of hearing both, Justice Souter indicated he would grant only the Kelly petition.

Thanks to the folks at SCOTUSblog, Justice Stevens’ statement respecting the denial is available here, and Justice Breyer’s dissent from the denial is available here.

November 10, 2008 at 11:44 AM | Permalink


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These video tributes are incredibly prejudicial and have very, very little probative value. What little probative information they contain could easily be conveyed in a less-prejudicial manner.

Stevens' dissent hits the nail on the head: “As these cases demonstrate, when victim impact evidence is enhanced with music, photographs, or video footage, the risk of unfair prejudice quickly becomes overwhelming. 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,”

I am not unsympathetic to the victim's families and if we are going to have the death penalty, then I do think victim-impact evidence is important. However, these blatant tugging at the heartstrings of jurors by 20-minute narrated video tributes, set to Enya music nonetheless, is over the top.

Similarly, I don't think Payne needs to be overruled. But these presentations need to be reigned in.

Posted by: DEJ | Nov 10, 2008 1:35:26 PM

Talk about non-problem . . . . the defendant gets to bring in all kinds of sob-stories, and he's the one that did the killing. Why can't the victims'?

Posted by: federalist | Nov 10, 2008 1:49:50 PM

I share DEJ's uneasiness at this sort of thing, but as Justice Stevens notes, there is a line-drawing problem. Once you accept that the general category of evidence is in, it's hard to come up with parameters for regulating it. Do we draw the line at soundtracks?

federalist also has a good point. At sentencing, the defendant is basically given carte blanche to say or present whatever he thinks will dissuade the jury from voting for death. It seems only fair that the prosecution should be able to rebut that sort of presentation with something similar going the other way.

Dahlia Lithwick had a great article about this a few years back. http://www.slate.com/id/2110567/

Posted by: | Nov 10, 2008 5:55:43 PM

Besides, the standard for constitutional prejudice is pretty high . . . . so the Supreme Court would have to go to the "death is different" storehouse to come up with some rules here. They should leave this alone. Haven't they mucked up capital punishment "jurisprudence" enough already?

Posted by: federalist | Nov 10, 2008 6:08:54 PM

So can the defendant present similar media, with pictures of his(/her) kids and tearful narration saying 'please don't kill my daddy'?

Can we not trust (death-qualified) jurors to grasp the horror of having a loved one murdered?

Does capital sentencing become a case of which side merely has the better video production specialists?

Posted by: | Nov 10, 2008 11:16:49 PM

federalist wrote: "Talk about non-problem . . . . the defendant gets to bring in all kinds of sob-stories, and he's the one that did the killing. Why can't the victims'?"

Because the trial is about the defendant (whether he did it and, if so, what his sentence should be), not the victim or the victim's family. The victim's family can play a video montage to a civil jury all it wants for all I care, but this is a criminal action. The State (not the victim and not the victim's family) is the plaintiff. As I'm sure you're aware, a civil action lies when one person murders another. Because your political priorities have bankrupted so many people, however, many victims and their families find a civil action infeasible. But that's your problem, not mine. Well, I guess it is my problem since you and your ilk have utterly destroyed the country for the last 28 years. But we're working on that.

Posted by: DK | Nov 11, 2008 12:04:37 AM

DK, if you want to emote, punch a wall or something. You start off with a serious point and then digress into stupidity.

The trial isn't "about the defendant" to the exclusion of the victim and the victim's family. At sentencing, the proceeding is "about" what punishment the defendant should get. Unless you're a pure retributivist, the impact of the defendant's crime has some relevance to that question.

The best argument against this sort of thing is that the defendant has due process rights, and that crime victims and their families don't have some sort of symmetrical rights meant to mirror the defendant's. Thus, the fact that the defendant didn't give the victim any sort of "due process" is no excuse for denying the defendant a fair trial. Similarly, even though the defendant gets to make more or less whatever argument he wants in whatever form he wants for sparing his life, it doesn't necessarily follow that the prosecution and the victim's survivors get to make whatever arguments they want, complete with professional editing services and an Enya soundtrack. The defendant is subject to the coercive power of the state, and the state has some procedural obligations to the defendant in the way it exercises that power.

I'm not sure how to give content to those obligations in this context, or how to explain what's in or out, but it has nothing to do with "destroy[ing] the country" or what you think an anonymous commenter and his/her/its "ilk" have been up to for the past 28 years. AFAIK, kos is still up and running and very hospitable to uninformed rants.

Posted by: | Nov 11, 2008 12:20:46 AM

An anonymous person wrote: "The trial isn't "about the defendant" to the exclusion of the victim and the victim's family."

Yes, it is. It is about the State versus the Defendant. That's its very title in fact. Victims and their families may complain through the civil courts.

An anonymous person wrote: "At sentencing, the proceeding is "about" what punishment the defendant should get. Unless you're a pure retributivist, the impact of the defendant's crime has some relevance to that question."

No, it doesn't. Every death penalty state has statutes that circumscribe what is relevant at sentencing, and it is not the crime's "impact." So much for informed commentary.

Posted by: DK | Nov 11, 2008 12:45:37 AM

You know, I keep hearing this notion that trials are not about victims. Am I the only one who thinks this statement is bizarre?

Posted by: | Nov 11, 2008 10:07:36 AM

The issue, DK, is what limitation the constitution places on so-called victim impact evidence. Since your side, through unelected judges, has imposed all sorts of silliness that passes for jurisprudence in the capital punishment, including the idea that a capital defendant gets to throw whatever he wants at the wall to see what sticks, you really don't get to complain all that much when legislatures pass laws giving victims a voice at these sentencing procedures.

Personally, I'd rather do away with all this silliness and go back to mandatory death sentences and judicial sentencing once a jury found someone death eligible. But we cannot, as our robed masters have determined that the 8th Amendment, when it comes to capital punishment, provides for a detailed code of criminal procedure. And even this little pushback from the democratic process gives Breyer and Stevens heartburn--waaaaaaaaaaaah. And of course, let's not forget that challenging, on a constitutional basis, the admissibility of evidence because of its alleged prejudice is extremely difficult. Of course, judges have a tailor made response--"Death is different".

DK, I'm sure your policy preferences are what they are, and I am sure that you don't care a whit if they are imposed by judges, but please don't pretend that your policy preferences are anything but that.

Posted by: federalist | Nov 11, 2008 11:55:00 AM

First, I have no sympathy to the idea that this is a difficult matter in which to draw lines. Drawing lines is exactly what judges are paid to do; that's what a judgment is: it includes some things and excludes other things.

I draw the line between the presentation of data which does in fact causes people to emote and the presentation of data that is *designed* to cause people to emote. Can the distinction between these two situations be a difficult line to draw? Sure, so what. Judges draw difficult lines all the time. They can draw them here.

For me, I agree with DEJ "What little probative information they contain could easily be conveyed in a less-prejudicial manner." That's the correct test for both the defendant and the victim.

Posted by: Daniel | Nov 11, 2008 8:28:51 PM

Daniel, it is true that judges "draw lines", but the lines have to have some tether to the Constitution. Some vague idea of prejudice is just not enough to junk state evidence rules, unless you think that federal courts have free rein to simply declare that they don't like something so, ergo, it must be unconstitutional. Certainly, there is NOTHING in the constitution which dictates that a convicted murderer has some freestanding right to present evidence about his entire life in order to tug on the heartstring of some squeamish juror--yet courts have gleefully imposed this hogwash, and now when the elected branches introduce some notion of equality, your precious sensibilities are offended. Give me a break.

These people are killers. Why in the world do we twist the law (thereby harming our democracy) to help them? Because idiot do-gooder arrogant judges find it fashionable. And they have all too many sycophants in the legal community. Own it guys--you guys are pro-criminal. Why you think that qualifies you to look down on people like me who simply read the constitution and find nothing dictating the evidence admissible on these questions is beyond me.

Posted by: federalist | Nov 11, 2008 10:19:58 PM

Oh, and DK, people like me work hard to pay the f'in bills in this country. So take the comment that I have "bankrupted the country" and shove it up your ass.

Posted by: federalist | Nov 11, 2008 10:21:59 PM

federalist. Did you even read this sentence? "That's the correct test for both the *defendant* and the victim." (Emphasis added.). I don't think either the defendant or the victim should get to "tug at the heartstrings." If there is a desire for equality, then the equality should come from rolling back any tugging the defendant might do, not adding tugging on the victim's part.

Posted by: Daniel | Nov 12, 2008 9:54:58 AM

Problem is, Daniel, that your "test" has no real tether to the constitution. And while "equality" sounds good, there's no real constitutional basis.

My calumny was not directed at you--I should have been clearer about that.

Posted by: federalist | Nov 12, 2008 10:05:52 AM

The "tether to the constitution" is the due process clause, which the Justices explicitly explained in Payne: "in the event that evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief."

And federalist's point that "the Supreme Court would have to go to the 'death is different' storehouse to come up with some rules here" is untrue. The constitutional principle is this: Due Process prohibits the state from introducing evidence that is so unduly prejudicial that it renders the proceeding unfair. This principle applies in all criminal proceedings, not just in the capital sentencing context.

Posted by: DEJ | Nov 12, 2008 11:42:26 AM

DEJ, that's a very high standard. Not sure that in a proceeding which is designed to get at the moral culpability of a killer and which proceeding allows the defendant to bring in all sorts of sob stories is unfair let alone "fundamentally unfair" because of some video showing the victim while alive. Moreover, outside of the capital sentencing context, successful arguments that evidence should have been excluded since it rendered a trial "fundamentally unfair" are pretty rare. For example, the depraved sexual instinct rule raises concerns about fundamental fairness since it permits a jury to infer bad conduct simply due to other acts evidence. Yet that rule passes muster, and it's a lot more prejudicial than a video of a murder victim in a proceeding where the murderer gets to put on any and all mitigating evidence. That's the genesis of my "death is different" point. No one thinks twice about the depraved sexual instinct rule, but we're going to get squeamish about a video. Gimme a break. This isn't about Due Process; this is about yet another bullshit argument gussied up with the pious view that since "there's a life at stake" we have to bend over backwards.

Guess what--the decision to convict or not convict an accused sex offender is a lot more of an important question than whether we execute a convicted murderer, yet we approve of a radical departure from the traditional limitations of Evidence Rule 404(b) to allow depraved sexual instinct evidence. Now I am not saying that I disagree with the depraved sexual instinct rule. I am simply comparing the silly worry about some video with the introduction of devastating other acts evidence. For Pete's sake, a capital trial is emotional. It cannot help but be. The introduction of a video reflects that reality--it doesn't change a cold proceeding into an emotional one.

Posted by: federalist | Nov 12, 2008 12:14:33 PM

I think your frequent characterizing the evidence in this case as "some video" grossly undervalues its prejudice, but probably quite accurately explains its probative value.

Emotion has a role in these proceedings. But it shouldn't be the focus, and it shouldn’t intentionally be played upon. This evidence tells a juror nothing (or very little) about whether the defendant is the type of person that deserves to die, but it simultaneous makes the juror want to see him die.

The evidence here makes the proceeding "fundamentally unfair" because there is no (or little) evidence being presented that goes to the real issue, yet it is intentionally interjecting emotion in an attempt to get the government's desired result. Further, and importantly, whatever probative value the "some video" contains can be presented via less prejudicial means.

Such is not the case with your comparison to the depraved sexual instinct rule. There, the evidence is arguably quite probative because it shows that the defendant has an "instinct" to commit these types of acts. Yes, it's also quite prejudicial, but there is no other way to inform the jury of this. (NOTE: I'm not saying I agree with the rule, but I think a Justice could easily hold that introduction of these "videos" violates due process, while, in a separate case allowing the introduction of past depraved sexual acts. Resort to "death is different" is not needed.)

Posted by: DEJ | Nov 12, 2008 1:24:50 PM

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