Cert denied, but Stevens and Breyer still speak out on capital victim videos

Yesterday the U.S. Supreme Court declined to take up cases considering the admissibility of video victim impact statements during the penalty stage of capital murder trials — and three justices were not happy about it.

The videos – which can be seen here on the Court’s website – featured images of the murder victims, voiceovers from loved ones, music and other images (like galloping horses in the case of a victim who was an avid horseback rider). The defendants challenged the admission of the videos, and ultimately petitioned the Court to decide whether they were unduly prejudicial.

It takes four justices to grant certiorari in a case, and the Court apparently fell one justice short.  Justices David Souter, John Paul Stevens and Stephen Breyer wanted to take up the case.

stevens3Stevens, as he has several times this term, issued a statement on the cert denial, expressing in no uncertain terms his concerns about such statements.

“Victim impact evidence is powerful in any form,” Stevens wrote. “But in each of these cases the evidence was especially prejudicial. Although the video shown to each jury was emotionally evocative, it was not probative of the culpability or character of the offender or the circumstances of the offense. Nor what the evidence particularly probative of the impact of the crimes on the victims’ family members.”

Stevens found the form of the statements particularly troubling. “As these cases demonstrate, when victim impact evidence is enhanced with music, photographs, or video footage, the risk of unfair prejudice quickly becomes overwhelming.”


Breyer, in a separate statement, echoed Stevens’ concerns. “[T]he film’s emotional and artistic attributes themselves create the legal problem,” Breyer wrote. “They render the film’s purely emotional impact strong, perhaps unusually so.”

Breyer added: “The due process problem of disproportionately powerful emotion is a serious one” in the videos.


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