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Univ. of South Carolina School of Law

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Tuesday, December 11, 2007

California Supreme Court Accepts Enya, Rejects Celine Dion For Background Music In Victim Impact Statements

A jury convicted Douglas Oliver Kelly of the first degree murder of Sara Weir under the special circumstances of robbery, rape, and with personal use of a deadly weapon.  During the penalty phase of Kelly's trial, after which he was sentenced to death, the court allowed the prosecution to play a 20-minute videotape with a montage of photographs of Sara Weir's life, narrated by her mother.  On appeal to the Supreme Court of California, Kelly claimed that the videotape was unfairly prejudicial. 

The Supreme Court of California noted that while most courts allow for the introduction of such statements, two courts had not permitted the admission of videotaped victim impact statements.  In United States v. Sampson, 335 F.Supp.2d 166, 191 (D. Mass. 2004), Judge Mark L. Wolf of the District Court for the District of Massachusetts found that it was proper to exclude a 27-minute videotaped victim impact statement with photographs of the victim because its probative value was substantially outweighed by the danger of unfair prejudice.  The court in Sampson found the videotape to be prejudicial because "[t]he pictures were set to evocative contemporary music, including that of the Beatles and James Taylor." Id.

In Salazar v. State, 90 S.W.3d 330, 333 (Tex.Crim.App. 2002), the Texas Court of Criminal Appeals found that a trial judge improperly allowed jurors to see a 17-minute videotaped victim impact statement with photographs of the victim.  As in Sampson, the court found that the videotape was unfairly prejudicial because it was accompanied by "such selections as 'Storms in Africa,' and 'River' by Enya, and conclude[d] with Celine Dion singing, 'My Heart Will Go On,' from the movie Titanic." Id.

The Supreme Court of California then attempted to distinguish these videotapes from the videotape in the Kelly case.  The Court noted how the Sampson court characterized the Beatles and James Taylor music as "stirring" and indicated that the Supreme Court of California (1) had previously characterized the music in Salazar as "stirring," and (2) found that such music could go "beyond what the jury might experience by viewing still photographs of the victim or listening to the victim's bereaved parents."  The Court, however, found that there was no prejudicial error in the videotape in the Kelly case because the Enya music in it was "generally soft, not stirring," with most of the words unrecognizable. 

My conclusion from the Kelly cases is that judges seem pretty ill suited to be making these types of decisions.  First, we have Judge Wolf in 2004 referring to the music of the Beatles and James Taylor as "contemporary."  This was true when Judge Wolf was admitted to the bar in 1971, but but not so much in 2004 (Incidentally, my guesses for the songs played would be "In My Life" and "You've Got a Friend"). 

Then, we have the Supreme Court of California deeming Celine Dion's music as "stirring," while concluding that Enya's music is "soft."  My idea of "stirring" music would be something by The Clash, but I would have to imagine that those "stirred" by Celine Dion would be "stirred" by Enya.  Amazon has referred to Enya's music as soul-stirring, and the All Music Guide, among others, also characterizes her music as stirring.  Heck, Peter Jackson even tapped her to write and perform songs to stir the emotions of viewers for The Lord of the Rings. 

Perhaps judges should appoint experts under Rule 706  (maybe  musicologists or music critics) to help them make these decisions.  What sounds even better to me is an outright ban on background music in victim impact statements.

-CM    

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