In Salazar v. State, 90 S.W.3d 330 (Tex. Crim. App. 2002), the CCA reversed a case because the trial court admitted a video montage about the victim during the punishment phase. The video was set to music from the movie Titanic.

Last week, the Supreme Court declined to review two cases from California where similar videos were admitted in the punishment phase of a trial. The Court posted one of the videos, set to music by Enya, on its website. video page

Is a victim nothing but a chalk outline on the ground? Nothing but a cardboard cutout leaning against the wall? A framed picture on the judge's bench? Even a mute defendant sitting at counsel table is alive and solid. Jurors can look into his eyes and see him breathe. Jurors can see the living bonds between the defendant and his parent's pleading for mercy on the witness stand.

Why is emotion not a proper part of punishment? Must we check our passion at the courtroom door and trade our hearts for lumps of stone? Surely, the punishment phase should not become a contest between videographers, but the idea that the assessor of punishment is nothing more than an actuarial robot is offensive. Deterrence is a prime part of our system of justice, and to deter a sentence must make an emotional impact on the defendant at hand as well as others in society. California is right on this issue, and Texas is wrong. I bet I never say that again.

[This message was edited by JohnR on 11-18-08 at .]

Maybe the SCOTUS has more tolerance for Enya than the CCA has for Celine Dion.

But, seriously, does anyone really believe that it is legally relevant to add mood music to photographs that portray a victim of a crime? Do you want that same standard for presentation of the defendant?

The Rules of Evidence require a logical (not emotional) connection between the evidence and an issue to be decided by the jury. As to punishment, the issues are more generic (how much confinement or fine to impose; whether probation is appropriate), but there still must be some logical connection between the evidence and an argument for harsher punishment.

By denying review, SCOTUS is not saying that the California cases were decided correctly or that the CCA got it wrong. They merely decided that, at this particular moment, those cases don't merit review by SCOTUS. It could well be that they decided among themselves that the error, if any, was harmless because of the terrible facts involved in the California cases.

And the SCOTUS likewise has not suggested that their earlier cases drawing a line between proper victim impact evidence and improper emotional pleas for sympathy have been overruled.

In the Texas case, the video went on for several minutes, included hundreds of photos of the adult victim from birth to death. It had been created and shown at the funeral as a memorial to the victim. It had not been created or designed as victim impact evidence. Indeed, when it was offered into evidence, the defendant's attorney objected that he had never even seen or been given an advance copy of the exhibit. The judge overruled the objection and just admitted it without even viewing it himself.

Photos of a victim are admissible to humanize and provide impact evidence. But it is all about providing the evidence in a rational way without overtly appealing to emotion. Frankly, a tight, well-designed presentation is likely to have even more impact than an over the top video with music.

The issue is just interesting to me. The video the Supreme Court posted looks much like the slide show in Salazar but has the addition of narration by the victim's mother.