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The video that helped put a man in prison for 22 years for running a stop sign.

Is it fair?

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.

(We discussed the cert. denials here.)

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.

"You're talking about 20 minutes that actually lets the jury see these people walking and breathing and moving," said Matt Murphy, an Orange County, Calif., prosecutor.... "I can see why these videos drive defense lawyers crazy because they actually balance things out"....

Evan Young, the lawyer who failed to persuade the Supreme Court to take up the Weir video challenge, said she thinks they tilt the scales against defendants. "Without limits on the use of this technology," she wrote in her brief, "capital trials become theatrical venues, and the determination whether a defendant receives a death sentence turns on the skill of a videographer."

But of course there is a limit:

Until the early 1990s, victims and family members rarely testified about the impact of a crime, having been held back by a series of Supreme Court rulings that said such testimony would violate the defendant's constitutional rights. A 1991 Supreme Court decision reversed the prohibition, a key milestone for advocates who say victims have historically felt marginalized by the criminal justice system.

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."

So the question is whether the Supreme Court should set more detailed rules. Was that video about Jesse Heller too much? If you say yes, do you think that the Supreme Court can come up with constitutional law specifying how many photographs or how many minutes of photographs are "unduly prejudicial"? Should it be said that the Constitution forbids pop songs?

Full post as published by Althouse on November 30, 2008 (boomark / email).