Lauren's Blog Scan today notes the discussion over victim impact videos and all the whining on the defense side that these are somehow "unfair." The rejoinder in the WaPo story is:
Prosecutors vigorously defend the videos, which are presented as part of "victim impact evidence" in death penalty and non-capital homicides and are usually put together by families, sometimes with help from law enforcement or funeral homes. With defendants able to present extensive "mitigating evidence," prosecutors say multimedia is often the best way to document the life that was extinguished and the pain of those left behind.That balance is the key point.* * *"I can see why these videos drive defense lawyers crazy because they actually balance things out," [Orange Co. DDA Matt] Murphy said.
The Supreme Court threw open the doors to all kinds of hand-wringing in its 1978 decision in Lockett v.Ohio, 438 U.S. 586. In one of the most high-handed decisions in modern history, the Court stripped the people of the states of the authority to decide what will be considered mitigating. Then in Booth v. Maryland, 482 U.S. 496 (1987), the Court further stripped the people of the ability to balance the scales. For four years, we had the intolerable situation of the defense being able to humanize the defendant and heap emotional appeals on his side of the scale, while the family of the victim had to just sit in the audience and say nothing.
In Payne v. Tennessee, 510 U.S. 808 (1991), the Court saw the error of its ways, with a little help from CJLF, et al. Victim impact evidence was once again admissible, and some semblance of balance was restored.
For those who think the videos are unfair and call for their elimination, I say fine. Let's get rid of the emotional presentations on both sides. Overrule Lockett and make the penalty determination depend on the circumstances of the crime, the defendant's criminal record or lack of one, and nothing else.
In Payne v. Tennessee, 510 U.S. 808 (1991), the Court saw the error of its ways, with a little help from CJLF, et al. Victim impact evidence was once again admissible, and some semblance of balance was restored.
For those who think the videos are unfair and call for their elimination, I say fine. Let's get rid of the emotional presentations on both sides. Overrule Lockett and make the penalty determination depend on the circumstances of the crime, the defendant's criminal record or lack of one, and nothing else.
