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Univ. of San Diego School of Law

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Monday, September 1, 2008

Petition Preview: Enya, the Death Penalty, and Video Victim Impact Evidence

Nearly two decades ago, in Payne v. Tennessee (1991), the Supreme Court held that the Eighth Amendment did not bar the introduction of “victim impact evidence” at the penalty phase of capital trials. The Court held that just as the Constitution gave defendants the right to present evidence designed to avoid imposition of the death penalty, it did not forbid testimony designed to show the victim was a unique human being whose loss left an impact on the survivors and society at large.

At the opening conference at the end of September, the Justices will decide whether to grant review in a case involving whether the Constitution nonetheless places limits on how such evidence may be presented. The petition in Kelly v. California (07-11073) asks whether the presentation of what might be called video scrapbooks – containing photographs and home movie footage of the victim, and, in this case, set to background music – can so prejudice the jury as to deprive the defendant of a fair trial in violation of the Due Process Clause of the Fourteenth Amendment, or create an arbitrary risk of capital punishment in violation of the Eighth Amendment.

The case stems from the capital murder trial of Douglas Oliver Kelly, whom a

California

jury convicted in the 1993 killing of Sarah Weir, a 19-year-old he had befriended at a local gym. According to an autopsy, the victim — whose body was found naked — had been stabbed twenty-nine times with a pair of scissors. Less than three months later, authorities arrested the defendant as he attempted to re-enter the country through

Mexico

, finding two of the victim’s personal checks, containing what appeared to be her signature, in his possession. [Mark Godsey]

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