EvidenceProf Blog

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

Wednesday, May 23, 2012

Can't Stop The Music, Take 3: Supreme Court Of California Rejects Challenge To Victim Impact Video With Flashbacks & Special Effects

Back in 2007, I posted an entry about the Supreme Court of California rejecting a Constitutional challenge to the admission of a 20-minute victim impact video with a montage of photographs of the victim's life that was accompanied by her mother's narration and Enya and Celine Dion music. In 2008, I followed up on that post with a second post concerning the United Supreme Court's refusal to grant cert in the case despite two strongly written dissents. Well, I just realized that last year, the California Supremes addressed a similar challenge to a similar victim impact video in People v. Garcia, P.3d 751 (Cal. 2011). So, was the result the same?

In Garcia, Randy Garcia was convicted of the first degree murder of Joseph Finzel, the attempted premeditated murder of FInzel's wife, L., and related crimes. During sentencing,

Following L.'s testimony, the jury watched an 11–minute 45–second videotape. The videotape shows L. from the shoulders up, talking in front of a plain gray backdrop. Her voice also is heard describing video clips and still photographs that appear on the screen. Both the narration and images concern the joy L. and Joseph shared as a couple (e.g., getting married, raising children, relaxing at home, and enjoying the outdoors), and the loss she experienced from his death (e.g., emotional turmoil, estrangement from Garrett, and a gravesite visit with Brinlee on Christmas Day).

The videotape departs from the foregoing format in only two respects. First, at the beginning, white lettering silently appears on a black screen, referring to an "intruder" who entered L. and Joseph's home on Mother's Day 1993, and who forever "altered" their lives and the lives of family and friends. Second, at the end of the videotape, a song plays softly in the background for 80 seconds, with lyrics about a "hero [who] goes free" and a " villain [who] goes to jail." More images of the Finzels appear at that time, including one of Joseph as a boy sleeping with a puppy.

Garcia was given the death penalty. After he was sentenced, Garcia appealed, claiming that the video was so unduly prejudicial as to render the sentencing hearing fundamentally unfair. Specifically, Garcia claimed that

the trial court erred in admitting the videotape because such evidence contained "special effects" that prejudiced the jury against him. He complains on appeal, much as he did at trial, about "repeated flashbacks to scenes from Jo[seph] and L[.]'s wedding, a photo montage, including pictures of Jo[seph] as a young boy, one with him fast asleep on a couch next to a sleeping puppy; music; lyrics; echo effects; and voiceovers."

The Supreme Court of Califonia disagreed, initially noting that

Videotapes may be used for victim impact purposes in capital penalty trials. We have said, however, that trial courts must take care in admitting such evidence, because "the medium itself may assist in creating an [undue] emotional impact upon the jury."... Under this case-by-case approach, we have had little difficulty upholding videotaped tributes to murder victims

The court then found the Kelly case that I previously blogged about to be especially instructive:

Kelly seems highly relevant here. There, the defendant was convicted of robbing, raping, and murdering a 19–year–old woman, Sara, who was a Native American and who had been adopted as an infant into a Caucasian home. At the penalty phase, Sara's mother described Sara's life and the pain her death had caused family and friends. Over defendant's objection, the prosecution also played a 20–minute videotape that Sara's mother had prepared. It consisted of video clips and still photographs spanning Sara's life, with the voice of her mother calmly narrating events in the background. The music of Enya played through most of the video, but the volume was soft and the lyrics were faint. On screen, Sara was seen singing with a school group, including the song, "You Light Up My Life." Other images showed her swimming, horseback riding, and interacting with family and friends. Near the end of the videotape, Sara's mother stated that she does not dwell on the "terrible crime."...The video ended with a view of Sara's gravestone, followed by a clip of people riding horseback in Alberta, Canada—the "kind of heaven" in which Sara was said to belong....

Rejecting the defendant's contrary claims, Kelly held that that because the presentation was relevant and not unduly emotional, it was permissible....We noted that even though the mother's testimony and the videotape covered similar ground, they supplemented, rather than duplicated, one another. The reason was that the videotape "humanized" Sara in a way that live testimony could not do...."In particular, the videotape helped the jury to see that defendant took away the victim's ability to enjoy her favorite activities, to contribute to the unique framework of her family...and to fulfill the promise to society that someone with such a stable and loving background can bring."...

At most, only two questionable elements emerged—the background music by Enya and the horseback-riding scene from Canada. Kelly  made clear that such sentimentality is not impermissible as long as it helps show "what [the murder victim] was like."...We acknowledged that the challenged features seemed to play a mostly "theatric" role in Sara's case because they imparted little “additional relevant material."...However, there was no reason to decide whether the trial court abused its discretion in admitting the videotape with these features intact, because any such error was harmless beyond a reasonable doubt. In making this point, Kelly relied on the routine use of music and special effects in videotapes, the factual nature of Sara's videotape overall, and the aggravating nature of the penalty evidence as a whole.

The California Supremes then found that

No different result is warranted here. After reviewing the videotape, we agree with the trial court, which conducted its own careful analysis, that there is nothing objectionable about the manner in which the videotape was edited and prepared. The "flashbacks" to which defendant objects "were simply photographs being shown," in the words of the trial court. The complained-of "voiceover" is L. speaking in a somber, almost flat, tone about scenes from her everyday life with Joseph. For the reasons discussed above, the images themselves are factual and relevant. Though L. is seen wiping tears away while describing some of these events, she never loses her composure on tape.

As noted, two audio features caught the trial court's attention—the echo effect accompanying the phrase "until death do us part" in the Finzels' wedding ceremony, and the "hero/villain" song that played during the photo montage at the end of the videotape. Though more dramatic than factual, these features seem fairly unobtrusive in context, and do not fundamentally alter the subdued tone of the presentation. In any event, we need not decide whether the contrary is true, because any error was clearly harmless. For the reasons set forth in Kelly..., and described above, there was "no reasonable possibility these portions of the videotape affected the penalty determination



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Although I think it would be bad public relations, I can't help but wonder what would happen if one of the artists sent a cease and desist letter for copyright infringement. I cant see anything here that is fair use and I can't imagine these people are paying royalties.

Posted by: Daniel | May 26, 2012 4:47:50 PM

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