Federal Evidence Review

In unusual move, the Supreme Court posts victim impact video on website, in Kelly v. California (No. 07-11073)

In criminal cases, a central sentencing hearing objective is to allow the sentencing court to consider relevant information in imposing the appropriate sentence. See generally 18 U.S.C. § 3553(a) (listing sentencing factors). The sentencing hearing also allows the court to hear victim impact evidence at sentencing.

In capital cases, the jury may consider victim impact evidence during the penalty phase. See generally Payne v. Tennessee, 501 U. S. 808, 827 (1991) (“We thus hold that, if the State chooses to permit the admission of victim impact evidence and prosecutorial argument on that subject, the Eighth Amendment erects no per se bar. A State may legitimately conclude that evidence about the victim and about the impact of the murder on the victim's family is relevant to the jury's decision as to whether or not the death penalty should be imposed. There is no reason to treat such evidence differently than other relevant evidence is treated.”). However, questions have been recently posed whether there are limits to victim impact evidence. Two recent capital cases presented this issue. See People v. Kelly, 42 Cal.4th 763, 171 P.3d 548 (2007); Kelly v. California (No. 07-11073) and People v. Zamudio, 43 Cal.4th 327, 181 P.3d 105 (2008); Zamudio v. California (No. 07-11425).

Defendant Kelly was convicted for the capital murder, rape and robbery of a nineteen-year old victim, who was found stabbed twenty-nine times. During the penalty phase, the victim’s mother provided victim impact testimony. The government then played a twenty-minute video which included photograph images of the victim, was set to music and narrated by her mother. The Zamudio case involved the capital murder and robbery of seventy-nine-year old and seventy-four-year old husband and wife. During the penalty phase, the jury heard victim impact testimony from four members of the victims’ family, two daughters and two grandchildren. The government also played a fourteen-minute video of the lives of the victims which was narrated by one of their daughters. The video include 118 photographs and concluded with gravesite photographs. Both defendants were sentenced to death. The defendants claimed the video evidence deprived their due process rights and risked an arbitrary result under the Eighth Amendment. The government argued the evidence was not fundamentally unfair and constitutional standards had not been breached. See:

• Kelly Petition for Certiorari Review;
• Kelly Brief in Opposition to Petition for Writ of Certiorari;
• Reply to Opposition to Petition for Writ of Certiorari;
• Zamudio Petition for Certiorari Review;
• Zamudio Brief in Opposition to Petition for Writ of Certiorari;

The California Supreme Court affirmed the convictions and death sentences and found no error in admitting the video victim impact evidence.

By one vote, the U.S. Supreme Court narrowly declined to hear the Kelly case. Two Justices posted their dissents. Justice Breyer dissented from the denial of the petitions for writs of certiorari in both Kelly and Zamudio. The Justice framed the issue: “The question here is whether admission at a deathpenalty proceeding of a particular film about the victim’s life goes beyond due process bounds.” Justice Stevens issued a statement respecting the denial of the petitions for writs of certiorari in both cases. Among other concerns, Justice Stevens believes the Supreme Court should provide guidance on the circumstances in which victim evidence may be considered in capital cases, and that the evidence in both cases was unfairly prejudicial. Justice Souter provided a third vote in favor of granting the petition for a writ of certiorari in the Kelly case. Four votes are need for certiorari review. In an unusual move, the Supreme Court posted the victim impact video from the Kelly case.

There appears to be no dispute about the relevance and role of victim impact evidence in capital and non-capital cases. The question and debate raised by these cases is whether at some point there are limits to the nature of this evidence, and where any lines should be drawn.