Cal. Supreme Court Splits On Admissibility Of "Eulogy" Video At Capital Sentencing Hearing

During the penalty phase of the defendant's capital trial, the court permitted the prosecution to show the jury a videotape prepared by the victim's mother portraying the victim's life. The trial court concluded, under Evidence Code section 352, that the videotape was more probative than prejudicial.

In Justice Chin's majority opinion, the California Supreme Court reiterated the principles recently discussed in People v. Prince (2007) 40 Cal.4th 1179, which permitted the use of videotapes regarding the victim so long as the prosecution does not introduce "irrelevant or inflammatory material that diverts the jury’s attention from its proper role or invites an irrational, purely subjective response." Prince provided the following guidance: "“[c]ourts must exercise great caution in permitting the prosecution to present victim-impact evidence in the form of a lengthy videotaped or filmed tribute to the victim. Particularly if the presentation lasts beyond a few moments, or emphasizes the childhood of an adult victim, or is accompanied by stirring music, the medium itself may assist in creating an emotional impact upon the jury that goes beyond what the jury might experience by viewing still photographs of the victim or listening to the victim’s bereaved parents. . . . In order to combat this strong possibility, courts must strictly analyze evidence of this type and, if such evidence is admitted, courts must monitor the jurors’ reactions to ensure that the proceedings do not become injected with a legally impermissible level of emotion.”

The majority described the video at issue in this case in the following manner: "It lasts about 20 minutes. It consists of a montage of still photographs and video clips of Sara Weir’s life, from her infancy until shortly before she was killed at the age of 19, narrated calmly and unemotionally by her mother. Throughout much of the video, the music of Enya — with most of the words unrecognizable — plays in the background; the music is generally soft, not stirring. One segment shows Sara singing a couple of songs with a school group, including 'You Light Up My Life.' Part of the time she was singing solo, with her mother explaining that every student was required to sing solo. The videotape concerns Sara’s life, not her death. It shows scenes of her swimming, horseback riding, at school and social functions, and spending time with her family and friends. The closest it comes to referring to her death is the mother’s saying near the end, without noticeable emotion, that she does not want to dwell on this 'terrible crime.' There is no mention of the facts of the murder or of defendant. The video ends with a brief view of Sara’s unassuming grave marker followed by a video clip of people riding horseback in Alberta, Canada, over which the mother says this was where Sara came from and was the 'kind of heaven' in which she belonged."

The majority acknowledged that the Enya music and the video clip of people riding horseback in Canada did not appear to be relevant. However, in light of Prince, the majority concluded that the defendant was not prejudiced by the admission of the video in question. Finding no prejudice, the majority explicitly declined to rule whether the trial court abused its discretion in permitting the prosecution to introduce the video.

Justice Werdegar filed a concurring opinion in which she opined that the trial court abused its discretion in admitting the videotape because it was "unduly lengthy, has elements of theatricality in the use of evocative music and visions of the victim’s place in the hereafter, and goes beyond a factual presentation of the victim as she was in life . . . ." Nevertheless, she agreed with the majority that the error was not prejudicial.

Justice Moreno filed a concurring and dissenting opinion in which he described the video as being "akin to a eulogy" and "precisely the kind of tape that we warned against admitting in Prince." Therefore, like Justice Werdegar, he would have found the trial court's ruling permitting introduction of the video to be an abuse of discretion. But, like all members of the Court, he, too, could not "say that this additional evidence so inflamed the passions and the sympathy of the jury that the penalty phase was rendered unfair."

People v Kelly, no. S049973 (Cal. Supreme Ct., filed 12/6/07)