The Supreme Court refused on Monday, over the protests of three Justices, to provide new guidance on the kinds of “victim impact” evidence that may be put before jurors to try to convince them to impose a death sentence. Specifically, the Court turned down two appeals seeking to challenge the use of music and video portrayals that may be highly emotional. It would have taken the votes of four Justices to grant review; three said the Court should have examined anew that kind of evidence.

 The Court granted no new cases for review.

In the new “victim impact” cases, Justice John Paul Stevens noted that the Court has not reviewed that type of evidence since its ruling 17 years ago in Payne v. Tennessee — the first ruling to allow the introduction, in the sentencing phase of capital cases, testimony that seeks to show the impact of the crime on relatives and other survivors of the victim.

“In the years since Payne was decided,” Stevens wrote Monday, “this Court has left state and federal courts unguided in their efforts to police the hazy boundaries between permissible victim impact evidence and its impermissible, ‘unduly prejudicial’ forms….Having decided to tolerate the introduction of evidence that puts a heavy thumb on the prosecutor’s side of the scale in death cases, the Court has a duty to consider what reasonable limits should be placed on its use.”

Justice Stephen G. Breyer said in dissent from the denial: “I understand the difficulty of drawing a line between what is, and is not, constitutionally admissible in this area.  But examples can help elucidate constitutional guidelines.”  The Court, he added, should have granted review of the two new cases “in an effort to do so.”

Justice David H. Souter said he, too, would have heard one of the cases; he did not write separately, however.

All 37 states and the federal government that maintain the death penalty allow victim impact evidence in the sentencing phase of murder trials.  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.  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.  In both cases, the California Supreme Court upheld the use of these presentations.

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 — Payne and Booth v. Maryland (a 1987 ruling against admission of such evidence, overruled by Payne).  “As these cases demonstrate, when victim impact evidence is enhanced with music, photographs, or video footage, the risk of unfair prejudice quickly becomes overwhelming. 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,” Stevens wrote.

The Court’s only guidance to lower courts in this area was its statement in the Payne case in 1991 that “in the event that evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief.”

The cases denied review were Kelly v. California (07-11073) and Zamudio v. California (07-11425).  While Justices Breyer and Stevens were in favor of hearing both, Justice Souter indicated he would grant only the Kelly petition.

For the fourth time since the new Term began, the Court took no action on a significant test case on whether it is unconstitutional for an elected state judge to take part in deciding a case involving the financial interests of a major donor to the judge’s political campaign.  The case, Caperton, et al., v. A.T. Massey Coal, et al. (08-22), is scheduled for another look at this Friday’s Conference, according to the Court’s electronic docket.

The Court also took no action on a new election law case, testing the constitutionality of a state law banning all payments to those who circulate nominating or ballot measure petitions on the basis of the number of signatures they gather, including a ban on per-signature payments.   The case is Ohio v. Citizens for Tax Reform (08-151).  However, the Court denied review in another Ohio election case — O’Neill v. Coughlan (08-177) — on whether the opening of a state ethics investigation of a judicial candidate’s election tactics serves to block a federal court’s review of that candidate’s constitutional challenge to the state’s judicial code.  The case involves a state probe of the state supreme court campaign of William M. O’Neill; he was not elected when he ran in 2004.

The Court also refused to hear a case seeking a constitutional right of access for the press and the public to the records in civil cases in court.  The appeal in New York Law Publishing, et al., v. Doe, et al. (08-330) sought to challenge the complete closing of the trial and most of the appellate record, for a seven-year period, of a lawsuit over workers’ rights to pregnancy benefits as applied to a worker who had had an abortion.

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