Supreme Court Won't Debate Use of Heart-Wrenching Videos in Criminal Trials

This video depicts the life of Jesse Heller, 17, who was killed by a drunk driver in Minnesota in 2006. Prepared at his family's church, it was played at his memorial service and then at the sentencing hearing for the man convicted in his death. Video courtesy of the Heller Family
By Jerry Markon
Washington Post Staff Writer
Saturday, November 29, 2008

The images are those of any childhood: a toddler wearing a snowsuit; a young boy fishing with his dad, a teenager mugging for the camera with his friends. Green Day's modern prom-night classic "Time of Your Life" plays in the background.

But Jesse Heller never made it to prom. He was killed by a drunk driver in 2006. Still, the video memorializing his life has a special resonance for the family of the Minnesota teen. When prosecutors asked to show it in court, his parents quickly agreed. Testifying, they felt, was just too hard.

"Everybody had tears in their eyes, even the security guards," Jesse's mother, Dawn Heller, said of the DVD that helped secure a 22-year prison term for the man who broadsided her son's truck at a stop sign -- on Mother's Day. "I believe it had an impact."

That is just the point. Fueled by technology and a powerful victims' rights movement, "victim impact videos" are becoming staples in criminal trials nationwide. The increasingly sophisticated multimedia presentations depict victims from cradle to grave, often with soft music in the background, tugging on the heartstrings of jurors. Defense lawyers say the videos are highly prejudicial and have sought to have them banned.

But the Supreme Court this month declined to hear challenges to two such videos, including one of Sara Weir, a dark-eyed 19-year-old who was raped and murdered in 1993. The video contains more than 90 photos of Weir and is set to the haunting tones of Enya.

As a result of the court's decision, experts say the use of such videos will probably accelerate in coming years.

"The publicity from the Supreme Court cases is going to make more victims and prosecutors aware of the possibility of technology-aided victim impact statements," said Margaret Garvin, executive director of the National Crime Victim Law Institute. "And I think that's a good thing."

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.

"You're talking about 20 minutes that actually lets the jury see these people walking and breathing and moving," said Matt Murphy, an Orange County, Calif., prosecutor who helped splice together a 25-minute video of Tom and Jackie Hawks, killed in what authorities called a plot to steal their yacht. Jurors this month recommended the death penalty for defendant Skylar Deleon after seeing the video, which was culled from home movies and shows the couple smiling and swimming during their final vacation and holding their infant grandchild.

"I can see why these videos drive defense lawyers crazy because they actually balance things out," Murphy said.

Evan Young, the lawyer who failed to persuade the Supreme Court to take up the Weir video challenge, said she thinks they tilt the scales against defendants. "Without limits on the use of this technology," she wrote in her brief, "capital trials become theatrical venues, and the determination whether a defendant receives a death sentence turns on the skill of a videographer."

The 20-minute video in that case documents virtually the entire life of Weir, who was killed by a man she befriended at a fitness center. Narrated by Weir's mother, it shows Weir smiling as an infant, dressing for Halloween, sitting with Santa Claus, singing in junior high school and graduating from high school. It ends with pictures of her grave and horsemen riding across the countryside, described as "the kind of heaven" where Weir belongs.

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