November 10, 2008

How unfair is it to use Enya to make jurors want to put a murderer to death?

The Supreme Court declines to hear 2 cases about "victim impact" evidence in death sentencing, and 3 Justices protest:
In the cases denied review on Monday, the evidence was composed of a 20-minute videotape in one case, and a 14-minute videotape in the other. In each case, the... 20-minute presentation included dozens of still photographs and video clips depicting the victim’s life, set to the music of recording star Enya, with a voice narration by the victim’s mother. The 14-minute display included 118 photographs of the murdered couple, with a narration by their children....

Justice Stevens described the videos as “a far cry from the written victim impact evidence at issue” in the Court’s two prior rulings on such evidence. “As these cases demonstrate, when victim impact evidence is enhanced with music, photographs, or video footage, the risk of unfair prejudice quickly becomes overwhelming."
Is it unfair to stoke emotions with Enya?
While the video tributes at issue in these cases contained moving portrayals of the lives of the victims, their primary, if not sole, effect was to rouse jurors’ sympathy for the victims and increase jurors’ antipathy for the capital defendants.”
The test, under the existing Supreme Court case law -- from Payne v. Tennessee -- is whether the evidence "is so unduly prejudicial that it renders the trial fundamentally unfair." What sort of music/video presentation would cause you to take leave of your senses?

39 comments:

former law student said...

Enya is just within the envelope of fairness. "Dust in the Wind" would be cruel and unusual, however.

Ron said...

Use of Mojo Nixon on matters relating to the Executive may wind up closing Gitmo!

UWS guy said...

So does this usher in an era where those who kill attractive people who lived beautiful lives receive tougher sentences than say a man who murders a dirty whore off the interstate?

Where's the equality of justice for ugly people with boring petty lives who are murdered?

Hunter McDaniel said...

Not fair at all. But then I also don't much approve of the tear-jerking tactics used by most personal injury lawyers.

Maybe I am dreaming, but I believe it used to be the case that the legal profession looked upon themselves as beacons of rationality, and the occasional intrusion of emotionalism was an aberration to be avoided. Nowadays, you just have two sides presenting competing melodramas.

Palladian said...

I know that being forced to listen to Enya would make me want to kill someone.

Ann Althouse said...

Palladian, I used to go to figure drawing sessions in the evenings at the art school here, and the Enya song I linked to was the music most often chosen the young woman who presided over things.

(Why there needs to be music to do art, I don't know. When I went to art school (circa 1970) the art teachers never played music.)

Simon said...

Ann Althouse said...
"Palladian, I used to go to figure drawing sessions in the evenings at the art school here, and the Enya song I linked to was the music most often chosen the young woman who presided over things."

To the extent that music is art, and that it can have a powerful effect on one's feelings, wouldn't playing music in such a setting distort the emotional response of the artist to the subject and thus corrupt the artistic product?

BJM said...

What sort of music/video presentation would cause you to take leave of your senses?

On a jury? None, but isn't this simply an extension of the Diana cult, Simpson jury nullification and prevailing culture wherein feelings have more gravitas than evidence/data/facts?

Alex said...

Just being forced to listen to Enya is cruel and unusual punishment....

Palladian said...
This comment has been removed by the author.
Palladian said...

"Palladian, I used to go to figure drawing sessions in the evenings at the art school here, and the Enya song I linked to was the music most often chosen the young woman who presided over things.

(Why there needs to be music to do art, I don't know. When I went to art school (circa 1970) the art teachers never played music.)"

Well maybe that's why you hated them so much!

My classes are 6 hours long and usually during the drawing sessions I play music, but it's very carefully chosen to suit the lesson plan of the day. For instance, when drawing skeletal anatomy, I played a recording of Bach's Art of the Fugue performed on the harpsichord, because I felt that the components of the piece emphasize structure and the relationship of structure to form. I also thought that the crispness of the harpsichord would influence the students to produce the crisp, rigorous drawings I wanted to see.

Sometimes I choose music as a counterpoint to the drawing, abrasive things such as earlier Penderecki that engender unrest and discord and make the drawing environment more challenging.

Unfortunately the subtlety of my musical selections are often lost, as many of the students wear headphones and listen to their own crap.

Revenant said...

Is it still accurate to call the murderer "a defendant" during the sentencing phase? He's been convicted at that point; his guilt is no longer in doubt.

Revenant said...

So does this usher in an era where those who kill attractive people who lived beautiful lives receive tougher sentences than say a man who murders a dirty whore off the interstate?

"Usher in an era"? Where have you been for the past ten thousand years of human history?

John Stodder said...

Revenent, you beat me to it.

I think I'm with the libs on this one, not just because it's unfair to a convicted murderer, but because if this is allowed, there's no reason why the prosecution can't use the same techniques during the trial.

In a case I know about, the prosecution was permitted to play a clip from a video deposition in a civil case that had no evidentiary connection to the criminal case. They played it, with the judge's permission, because they knew this defendant had a repellent personality, and the deposition clip showed him acting like a complete asshole. Since the defendant never testified, this opportunity was given to the prosecution to help the jurors come to hate the defendant, who was convicted.

What's to stop them in future cases from playing an evil-sounding soundtrack during opening or closing arguments? What's to stop them from using movie clips? "You're not trying Joe Blow, ladies and gentlemen. We want you to convict...Hannibal Lecter!"

The defense could also use these tactics, using imagery to make the defendant appear lovable and kind. Look at the power of Obama's hypothetical puppy to distract even the supposedly tough-minded press.

This is a bad idea that should be expressly banned.

Toby said...

The great Flannery O'Connor quote--subsequently lifted b Walker Percy--has never been more true than in this case: Tenderness leads to the gas chamber.

Ann Althouse said...

Palladian: "Unfortunately the subtlety of my musical selections are often lost, as many of the students wear headphones and listen to their own crap."

But you are partly justified imposing your music on them, mediating the visual for them, by their power to put in earphones. Circa 1970, it wasn't possible to do that, except maybe with a transistor radio and a single earplug (which I must say I tried in my 6th grade class and got away with for a while).

Cedarford said...

If we are to live in an era when juries are supposed to be subjected to blatant emotional manipulation by not just slick-talking trial lawyers and cunning female prosecutors and token "authentic blacks" playing juror demographics, and telegenic serial rapists? But by external parties showing up with complete AV productions to sway opinion? well perhaps.....

1. It is time to allow juries to ask questions during the trial of witnesses, prosecution & defense lawyers - submitted through the foreman to the judge.

2. It is time that the jury be allowed to view the defendents previous rap sheets, going back to juvie in the case of violent felonies, and any court transcripts, prior to sentencing.

3. That the judge be empowered, by trying a case, to charge an uncovered false accuser or railroader with a crime of the same penalty range they wished to punish the innocent with -if such malicious activity is found out during or after the trial. Not the prosecutor's office which all too much is sympathetic with, invested in, or complicit with the false accuser - the judge empowered to make the charge for another court to decide on..

UWS guy said...

There's too much noise in the world already to impose it in a classroom not expressly dedicated to music.

The students alarm plays music as they wake...snip...song cut short...as they turn on the car...a middle section of some song comes on...snip...burt bacherach croons as they rush into starbucks....snip...song cut short.

Then you have the gall to put on a record of bach? noise noise noise. The students minds are already deafened by a constant bombard of music, without silence there is no concomitant sound.

Better to ask for complete silence for an hour to re-tune your students ears to the correct pitch.

John Cage is dreadful, but he was also right in one regard . There is an enormity of disorganized sound that makes mockery of the organized.

playing Bach in class is not organized sound, it is cacophony. It is no wonder that my own students grow bored with sitting through music concerts, their ears are tired and need a rest.

better to rest from canned music than to find that during the concert the constant masturbation of sound from radios has sucked the libido of listening from that sex organ between your ears.

Freeman Hunt said...

We are talking about convicted murderers, yes? No music is going to alter my disposition from that of wanting to send down the maximum sentence possible. (The only exception being murders committed in retaliation for some other heinous crime, i.e. some guy murders the man who molested one of his children. In that case, I could go as light as probation and time served.) Most any music someone else chooses is probably only going to annoy me anyway.

I'm with Palladian on playing Enya. It is not fair to subject the jurors, who have not even been convicted of crimes, to cruel and unusual punishment.

M. Simon said...

Blows Against The Empire works for me.

Christy said...

Doesn't Enya pack a more powerful punch in that her "Only Time" underlay serveral of the memorial videos we all cried over 7 years ago? I tear up just hearing her voice.

ricpic said...

...the crisp, vigorous drawings I wanted to see.

Sheesh, what a dictator. What if the students wanted to do an impressionistic rendering of the skeleton, huh, huh?

Synova said...

No music is going to alter my disposition from that of wanting to send down the maximum sentence possible.

That's because you're bloodthirsty and wouldn't be allowed on a jury by the defense lawyer to start. ;-)

My opinion... video tribute, yes. Music (of any sort), no.

Music goes around our rationality. Vision doesn't.

My Enya CD's are from about 15 years ago. They're among my favorites. I don't know what she's done lately, though.

Steven said...

What a made-up issue. If we didn't have the Supreme Court-imposed extraconstitutional "sentencing phase" nonsense, nobody would have to worry about unduly increasing the antipathy of the jury.

And Stevens, Breyer, and Souter are not actually concerned about the influence, anyway. They're just going to do anything they can to stop the application of the death penalty, at any excuse.

rhhardin said...

I'd vote for Enya's Caribbean (real audio), which repeats a cliche that I happen to like. The jurors would at least be entertained.

Quiz: What is the time signature of the introduction? I suppose the rest is in 12/8 time.

blake said...

Enya's music should be limited to deliberations on whether to put Enya to death.

And even there, they may be unduly prejudicial.

paul a'barge said...

3 justices objected?

someone should have built the victim statement tapes and used the opportunity to RickRoll the justices.

The 3 deserve it.

Revenant said...

My Enya CD's are from about 15 years ago. They're among my favorites. I don't know what she's done lately, though.

Nothing as good as "Watermark".

I, at any rate, still like Enya. She has a special place in my heart just for the use of her music in a couple of really good scenes in "LA Story", my favorite movie about life in southern California.

SGT Ted said...

And Stevens, Breyer, and Souter are not actually concerned about the influence, anyway. They're just going to do anything they can to stop the application of the death penalty, at any excuse.

Exactly. Compared to their stated preferences to using foreign laws as an influence on deciding American legal issues, music during sentencing phase is pretty small beer.

veni vidi vici said...

UWS Guy is on fire today. Note also the proper use of "enormity".

John Stodder said...

Blows Against The Empire works for me.

Boy I remember how excited I was to bring that one home, and how disappointed I was at how unbelievably crappy it was.

Just saw Van Morrison live, performing "Astral Weeks" in its entirety at the Hollywood Bowl. It'll be a DVD soon.

Freeman Hunt said...

That's because you're bloodthirsty and wouldn't be allowed on a jury by the defense lawyer to start. ;-)

Heh. In high school and college lots of older people liked to tell me that I should be a judge. I would so have been the Hanging Judge.

Simon said...

SGT Ted said...
"Compared to their [Stevens, Kennedy, Ginburg and Breyer] stated preferences to using foreign laws as an influence on deciding American legal issues...."

Something that they've gone quiet about in recent terms in the face of withering criticism, as a deflated-sounding Roger Alford complains in the most recent issue of Engage. I was surprised to hear in a recent speech Kennedy gave that he's still clueless on this issue - he still doesn't seem to understand what the objection is. But to tell the truth, so long as they don't use it I don't care that they feel sore about not doing so. I know Althouse has taken a different view on this, but it struck me as one of the most painfully illegitimate excuses ever offered for judicial decisionmaking. You know that a movement is in trouble when the people defending it - notably Alford and Justice Breyer - actually make it seem worse in their attempts to defend it.

veni vidi vici said...

You saw the Astral Weeks show then, eh? How was it?

I've driven by a billboard advertising it for a few weeks; big, horrid photo of Van Morrison looking like a complete toolbag though, all unease and edginess, from a guy wearing a suit and tinted glasses.

I remember getting that album from the library in Windsor Ontario back in the 80's. At the time (I was a teenager) I didn't think of it as a landmark (other than the great title). Imagine my surprise seeing that billboard!

The Bowl rules for rock bands. Saw Page & Plant there in 1998. Whoa!

veni vidi vici said...

I can't believe that posting inanities on this thread just cost me a winning bid on an ebay Item i've been watching for 5 days. i missed the expiration by 11 seconds.

I feel like Charlie Brown after Lucy's fooled him with the football.

gbarto said...

The first thing I thought of when I saw this was the South Park episode where Stan Marsh is convinced to euthanize his grandfather after hearing a snippet of Enya and being told that's what it feels like to be old.

I like Enya, but her marketing people should be worried about her becoming too associated with putting people to sleep.

John Stodder said...

The Van Morrison show was spectacular. The first half less so than the second half, which was devoted to playing the entirety of "Astral Weeks." It was like the album, except a little bigger and freer. There was a fiddler in his band who was amazing. The original guitarist from the album was there and was also wonderful. Van, 63, still has pretty much the same voice he had when he was 22. A little thicker, maybe, but just as powerful and supple.

I'm not sure, but I suspect devotion to Astral Weeks partly depends on how soon after its release you heard it. In 1969-70 it was utterly unique, an astonishing work of genius. In the mid-80s, maybe it could be confused for a better-than-average New Age album unless you listened to it carefully.

To me, it's the ultimate beatnik album, with its combination of spontaneous poetry, jazz and folk, sung by a guy who you would assume was black if you didn't know he was an Irish troll. It's also one of the most romantic albums ever made -- a great soundtrack for doing stuff with girls. What Sinatra & martinis was for men in the 50s, Van Morrison & a joint was in the early 70s.

hypermonk said...

Geez reading the comments and the negative reactions to Enya are more weird than the subject being discussed.You guys are musical Nazis for persecuting other people's musical tastes.

blake said...

No, I think we're more musical communists.

That is to say, we don't want to put Enya lovers in musical death camps, just in musical gulags.