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November 10, 2008

Should Victim Impact Videos Be Allowed?

The Supreme Court declined to accept two death penalty cases in which the juries were shown victim impact videos before sentencing. Under old guidance, the Court allows evidence which provides the jury with "a quick glimpse of the life" of the victim and demonstrates "the loss to the victim’s family and to society." However, such evidence cannot be prejudicial under the Fourteenth Amendment.

The victim impact videos in these cases were emotional photo montages, one of them set to Enya. The Cal Supreme Court held that they were not unduly emotional and did not call for vengeance and were thus permissible under the Fourteenth Amendment.

Justice Stevens used the denial as an opportunity to recycle his opposition to the death penalty (PDF). However, Justice Breyer's dissent from the denial (PDF) presents a more interesting question. Breyer writes:

This Court has made clear that "any decision to impose the death sentence" must "be, and appear to be, based on reason rather than caprice or emotion." A review of the film itself, http://www.supremecourtus.gov/opinions/video/kelly_v_california.html, along with the sources to which JUSTICE STEVENS refers, makes clear that the due process problem of disproportionately powerful emotion is a serious one.

You can download the video from the Court's website at the link provided by Justice Breyer's clerks above or view it on YouTube here (part 1) and here (part 2). It's twenty minutes long, but a brief glimpse will give you the gist.

So here are my questions:

Should the decision to impose the death penalty be based on reason rather than emotion?
If yes, do victim impact statements aid that purpose?
And in this particular case, did the video aid that purpose?

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posted by Gabriel Malor at 12:06 PM

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