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Does Video Victim Impact Evidence Have Probative Value?

August 25, 2009

Technology, pop culture and the Internet have changed the way we mourn.    With a few clicks, a credit card and a collection of photos, mourners can order tribute packages that include customized memorial websites, photo slide shows and videos in a matter of minutes. 

Memorial videos have played an increasingly controversial role during the penalty phases of murder trials.   The problem, says Penn Law Professor Regina Austin, is that these “commercialized expressions of loss and suffering” often fail to communicate the victims’ individuality or what their deaths meant to survivors. 
In 1991, the Supreme Court began allowing prosecutors to introduce victim impact testimony that provided a quick glimpse of the victim’s life and the impact of the murder. To prevent verdicts based on sentiment, admissible testimony had to be relevant and not unduly prejudiced. 
For Austin, the question is not whether victim impact videos (VIVs) are prejudicial but whether they are relevant.   She is exploring whether VIVs have a measurable probative value and if so, what requirements they should have to satisfy to be admissible.  
Douglas Kelly of Los Angeles was convicted of murdering 19-year-old Sara Weir in the early 1990s.   During the penalty phase of the trial, the court permitted Weir’s mother to screen a twenty-minute video to demonstrate the impact of her daughter’s murder. While Enya songs played in the background, the mother narrated a year-by-year account of Weir’s life as illustrated by pictures and video footage of birthdays and other special events. Kelly’s lawyers objected to the use of the tape, but the California Supreme Court concluded that the multimedia presentation did not prejudice jurors against Kelly, and upheld his death sentence. The Supreme Court of the United States denied review, with Justices Souter and Stevens dissenting.
The video supported an idealized reading of Weir’s life, said Austin and could have been much more probative if the mother had been more reflective about what the loss meant to her. 
For Austin, a video’s probative value increases in cases where the defendant calls the victim’s character or actions into question, or where it challenges stereotypes about the victim’s class or status group.    
Abel Leon had repeatedly violated a no-contact order and had been charged several times with abusing his wife, Angie. Despite Angie’s requests to the deputy prosecutor to keep Abel in jail while he awaited sentencing for another crime, Abel was released. Within a month, Abel tracked down Angie and shot her to death. 
Both the prosecution and the defendant’s legal teams missed an opportunity to use the VIV properly, said Austin. The VIV could have been used to dispel the gender and cultural stereotypes about Latinas that the defense employed to paint a negative portrait of Angie. The VIV portrayed her as a loving mother of three, but failed to emphasize other traits, such as the fact that she was an energetic and intelligent young woman who was seeking to complete her education. For Abel, the VIV presented an opportunity to express remorse and show that the process of rehabilitation had begun, said Austin. 
In a paper that Austin presented at a film conference at Cardozo Law School, she suggested several admission criteria that might ensure the probative value of VIVs:
- Videos should be no longer than ten minutes.
- The content should be relevant to the issues at hand during sentencing and should highlight the victim’s unique qualities as demonstrated by specific acts, behavior or events.  It should also describe the impact of the victim’s death on survivors as evidenced by the history of their interaction with the victim.  
- Chronological videos beginning at birth should only be considered probative for very young victims but not adults. 
- Only music that is indicative of the victim’s tastes, hobbies or behavior should be allowed and music should not substitute for narration.  
- Survivors must narrate the video. 
- Defense counsel should be given advance notice of and access to VIVs, and should have the right to know whether they were compiled by survivors or by an unrelated professional. 

- Defense counsel should also have the right to demand outtakes and unedited footage if there is a suspicion that the editor has cut and paste images in such a way as to distort the facts. Counsel should also have the right to challenge and cross-examine the video maker, the authenticating witness or the proponent of the video if they suspect that rhetorical or narrative manipulation has occurred.