EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Tuesday, September 2, 2008

Can't Stop The Music?: Defendant Files Petition For Writ Of Certiorari In Enya Victim Impact Statement Case

Last December, I posted an entry about a strange California case involving a victim impact statement.  In that case, 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. And 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 videotaped victim impact statement 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.

One of the grounds for his appeal was that the videotape should have been excluded because it was accompanied by Enya music.  The Supreme Court of California attempted to distinguish previous cases where courts had found that videotaped victim impact statements accompanied by music from the Beatles, James Taylor, and Celine Dion were or should have been deemed inadmissible.  According to the Court, a rational line could be drawn because Beatles and James Taylor music is "stirring" and could go "beyond what the jury might experience by viewing still photographs of the victim or listening to the victim's bereaved parents" while the Enya music in the video in Kelly's case was "generally soft, not stirring," with most of the words unrecognizable. 

Well, according to SCOTUSblog, Kelly has now filed a petition for writ of certiorari to the Supreme Court (SCOTUSblog has the impact statement on its site).  In that petition, he has claimed that "courts have 'held the line' against the introduction of tapes containing both background music and extensive video footage or collections of photographs....The petition also contends the inclusion of background music serves no purpose beyond heightening the emotional experience of the viewer. Kelly’s attorney cites a 1940 essay in the New York Times in which composer Aaron Copland discussed his score for the movie, Of Mice and Men. 'The quickest way to a person’s brain is through his eye,' Copland wrote, 'but even in the movies the quickest way to his heart and feelings is still through the ear.'  The petition argues that just as background music could not be played during in-court testimony, nor should it be allowed to accompany evidence on videotape."

Meanwhile, in its brief in opposition, California has argued that no genuine conflict exists on the admissibility of victim impact evidence presented on videotape.  According to the state, most courts have admitted such evidence, and those that excluded it relied on state rules of evidence rather than the due process clause.  California has claimed that even if the background music or closing images were irrelevant to the impact on the victim’s family and should not have been admitted, their inclusion did not prejudice the defendant when considered in light of the trial as a whole.

Kelly's petition will be heard on September 29th, and I hope that the Supremes decide to take the case.  As I noted in my previous post, judges seem pretty ill suited to be making decisions about what type of music is too "stirring," and I think that there's a strong argument that any music in victim impact statements is exploitation rather than exposition.

(Hat tip to Ben Winograd of SCOTUSblog).



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