Motion Bank # M-3017 (Re: F 8.85 n25/F 8.85 n26/F 8.85 n27 [Victim Impact: Motion For Video Tape In Lieu Of Live Testimony/Motion To Instruct Witnesses On Limitations Of Testimony/Motion For Prior Disclosure Of Proposed Testimony].)
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Date of Motion: September 18, 2002
MARCIA A. MORRISSEY (SBN 66921)
2115 Main Street
Santa Monica, California 90405
Telephone: 310-399-3259
Facsimile: 310-399-1173
MICHAEL N. BURT (SBN 83377)
555 Seventh Street
San Francisco, California 94103
Telephone: 415-553-1671
Facsimile: 415-553-9810
Attorneys for Defendant
JOHN DOE
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SANTA CLARA
PEOPLE OF THE STATE OF CALIFORNIA, CASE NO. 000000
Plaintiff,
vs.
JOHN DOE,
Defendant.
______________________________________
NOTICE OF MOTION AND MOTION THAT ALL VICTIM IMPACT WITNESSES
BE PRESENTED BY WAY OF VIDEOTAPED EXAMINATION IN LIEU OF LIVE
TESTIMONY AND REQUEST FOR CAUTIONARY VICTIM IMPACT INSTRUCTIONS
TO WITNESSES AND THE JURY
TO CHRISTINE A. JOHNSON, MARIPOSA COUNTY DISTRICT ATTORNEY, KIMBERLY FLETCHER, ASSISTANT DISTRICT ATTORNEY, GEORGE WILLIAMSON, DEPUTY DISTRICT ATTORNEY OF SOLANO COUNTY, AND MICHAEL CANZONERI, DEPUTY ATTORNEY GENERAL:
PLEASE TAKE NOTICE that on the 19th day of September 2002, at 9:30 a.m. or as soon thereafter as the matter may be heard in the above-entitled court, defendant, through his attorneys, will and hereby does move for an order: (1) requiring all victim impact evidence to be presented by way of videotaped examination in lieu of live testimony; (2) requiring that all victim impact witnesses be instructed prior to their testimony in accordance with the attached victim impact Instruction No. 1 or similar language; and (3) requiring that the jury be instructed prior to the receipt of any victim impact evidence in accordance with the attached victim impact Instruction 2 or similar language.
This motion is made pursuant to the Sixth, Eighth, and Fourteenth Amendments and their California constitutional counterparts.
This motion is based upon this Notice, the attached Points and Authorities , the files and records of this case, and any evidence and argument to be presented at the hearing on this motion.
DATED: September18, 2002
Respectfully submitted,
MARCIA A. MORRISSEY
MICHAEL N. BURT
Attorneys for Defendant
JOHN DOE
By: _______________________
MICHAEL N. BURT
STATEMENT OF FACTS
I
ALL VICTIM IMPACT WITNESSES SHOULD BE VIDEOTAPED IN LIEU OF LIVE TESTIMONY AND SUCH WITNESSES AND THE JURY SHOULD BE GIVEN CAUTIONARY INSTRUCTIONS ABOUT THE PROPER SCOPE AND LIMITATIONS OF VICTIM IMPACT EVIDENCE
In 1987, the Supreme Court declared in Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), that the use of a victim impact statement based on interviews with the family survivors of a murdered elderly couple violated the Eighth Amendment. Two years later, the Court held in South Carolina v. Gathers, 490 U.S. 805, 109 S.Ct. 2207, 104 L.Ed.2d 876 (1989), that a prosecutor’s closing argument was grounds for reversing a death sentence in a murder case because of extensive reference to inferences regarding the victim because a prayer card and a voter’s registration card were found near his body.
In 1991, the Supreme Court overruled those prior decisions insofar as they imposed a per se rule of inadmissibility of victim impact evidence. The Court held in Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), that there was no Eighth Amendment violation in a penalty hearing which included testimony from a grandmother about the effects on her young grandson of the murders of his mother and sister and the prosecutor’s comments on those effects in his closing argument. In the Court’s opinion and in concurring opinions, the justices recognized the potential for inflammatory effects of such evidence and cautioned that it could render the proceeding fundamentally unfair in violation of the Due Process Clause. In reversing the per se exclusion in the prior cases, the Court expressly recognized the requirement that trial courts exercise their discretion to avoid the influence of passion or prejudice. Id. at 825, 111 S.Ct. at 2608.
In People v. Edwards (1991) 54 Cal.3d 787, the California Supreme Court, following Payne v. Tennessee (1991) 501 U.S. 808, 111 S.Ct. 2597 held that “factor (a) of section 190.3 allows evidence and argument on the specific harm caused by the defendant, including the impact on the family of the victim. This holding only encompasses evidence that logically shows the harm caused by the defendant. We do not now explore the outer reaches of evidence admissible as a circumstance of the crime, and we do not hold that factor (a) necessarily includes all forms of victim impact evidence and argument allowed by Payne. Our holding also does not mean there are no limits on emotional evidence and argument.” Id. at 835-836.
Like Payne itself, Edwards thus recognized a number of limitations on victim impact evidence, including the following principles: (1) “[T]here are . . . limits on emotional evidence and argument” ; (2) “[T]he jury must face its obligation soberly and rationally, and should not be given the impression that emotion may reign over reason”; (3) ” In each case, therefore, the trial court must strike a careful balance between the probative and the prejudicial”; (4) “On the one hand, it should allow evidence and argument on emotional though relevant subjects that could provide legitimate reasons to sway the jury to show mercy or to impose the ultimate sanction.”; and (5) “On the other hand, irrelevant information or inflammatory rhetoric that diverts the jury’s attention from its proper role or invites an irrational, purely subjective response should be curtailed.” Id. at 836. Exactly how a trial court is supposed to apply these sometimes conflicting principles in a particular case was not spelled out in Edwards or any subsequent California Supreme Court case.
In United States v. O’Driscoll (M.D. Pa. 2002) 203 F. Supp 2d 334, 340-341, a federal district court was recently confronted with the task of keeping victim impact testimony within proper limits in a federal death penalty prosecution. The Court’s solution to the problem reflects a reasonable and constitutionally required accommodation between the prosecution’s right to present victim impact testimony and the defendant’s due process, Sixth, and Eighth Amendment right to a fair and reliable sentencing hearing. The Court wrote:
The presentation of victim impact evidence can be problematic because of the potential for emotional outbursts during the testimony of family members. One district court in commenting on victim impact evidence stated as follows:
This is the most problematical of all of the aggravating factors and may present the greatest difficulty in determining the nature and scope of the “information” to be considered. Congress expressly provided for victim impact consideration in the Death Penalty Statute but did not put any limits on what can be considered. §§ 3593(a). That is a matter for the court’s discretion and must be determined with consideration for the constitutional limitation that the jury must not be influenced by passion or prejudice.United States v. McVeigh, 944 F.Supp. 1478, 1491 (D.Colo.1996)(Matsch, J.).
Victim impact testimony cannot be totally divorced from emotion. However, the court has an obligation to keep the emotions of witnesses in check so that the jury is, as noted by Judge Matsch, not “influenced by passion or prejudice.” In order to evaluate the potential prejudice of victim impact testimony, one court required the government to submit a written statement describing the proposed testimony of each victim impact witness. United States v. Glover, 43 F.Supp.2d 1217, 1235-36 (D.Kan.1999)(Lungstrum, J.). The court also adopted instructions to be given the witnesses relating to control of their emotions at the time their testimony was presented. Id.
We are not convinced that the government’s notice of intent to seek the death penalty is so vague that it is impossible for defense counsel to undertake an investigation and prepare a defense. However, out of an abundance of caution we will adopt procedures similar to those adopted by the district court in Glover.
In a footnote to this passage, the Court stated:
We will give serious consideration to a motion filed by either the government or O’Driscoll requesting that the testimony of the victim impact witnesses be videotaped and presented to the jury in that manner at the time of trial. This procedure would eliminate the possibility of emotional and potentially prejudicial outbursts of witnesses during live testimony before the jury. If live testimony is presented we will instruct each witness that if the witness is unable to control his or her emotions the witness will not be permitted to testify. Furthermore, as the district court did in Glover we will advise each witness to refrain from giving any opinions about the defendant, the crime, or the appropriate sentence.
Id. at 341 n. 6
In accordance with the persuasive reasoning of O’Driscoll, the defense requests that any victim impact evidence in this case be given by way of videotaped examination in lieu of live testimony. Further, in accordance with O’Driscoll and Glover, the defense requests that each victim impact witness be instructed in advance of giving testimony in the language of the attached Victim Impact Instruction No. 1 or similar language.
In addition to endorsing procedural protections of the type outlined in cases such as Glover and O’Driscoll, numerous courts have also recognized that “(a)llowing victim impact information to be placed before the jury without proper limiting instructions has the clear capacity to taint the integrity of the jury’s decision on whether to impose death.” State v. Hightower, 680 A.2d 649, 661 (N.J. 1996) . See also, Wayne Logan, Through the Past Darkly: A Survey of the Uses and Abuses of Victim Impact Evidence in Capital Trials, 41 Az. L. Rev. 143, 180 (1999)(“(D)ue process and fair play require explicit acknowledgment by the trial court that jurors are not to make use of impermissible impact evidence.”)(collecting cases).
For instance, in Cargle v. State, 909 P.2d 806, 828 (Okla. Crim. App. 1995), the Court wrote:
The statutory language is clear the evidence should be restricted to the “financial, emotional, psychological, and physical effects,” or impact, of the crime itself on the victim’s survivors; as well as some personal characteristics of the victim…. So long as these personal characteristics show how the loss of the victim will financially, emotionally, psychologically, or physically impact on those affected, it is relevant, as it gives the jury “a glimpse of the life” which a defendant “chose to extinguish,” Payne, 501 U.S. at 822, 111 S.Ct. at 2607. However, these personal characteristics should constitute a “quick” glimpse, see Payne, 501 U.S. at 830, 111 S.Ct. at 2611 (O’Connor, J., with whom White and Kennedy, JJ., join, concurring), and its use should be limited to showing how the victim’s death is affecting or might affect the victim’s survivors, and why the victim should not have been killed. Mitigating evidence offers the factfinder a glimpse of why a defendant is unique and deserves to live; victim impact evidence should be restricted to those unique characteristics which define the individual who has died, the contemporaneous and prospective circumstances surrounding that death, and how those circumstances have financially, emotionally, psychologically, and physically impacted on members of the victim’s immediate family….
To further assist the jury in using victim impact evidence, we hereby promulgate the following instruction, to be used in all future capital murder cases in which victim impact evidence is presented:
The prosecution has introduced what is known as victim impact evidence. This evidence has been introduced to show the financial, emotional, psychological, or physical effects of the victim’s death on the members of the victim’s immediate family. It is intended to remind you as the sentencer that just as the defendant should be considered as an individual, so too the victim is an individual whose death may represent a unique loss to society and the family. This evidence is simply another method of informing you about the specific harm caused by the crime in question. You may consider this evidence in determining an appropriate punishment. However, your consideration must be limited to a moral inquiry into the culpability of the defendant, not an emotional response to the evidence.
As it relates to the death penalty: Victim impact evidence is not the same as an aggravating circumstance. Proof of an adverse impact on the victim’s family is not proof of an aggravating circumstance. Introduction of this victim impact evidence in no way relieves the State of its burden to prove beyond a reasonable doubt at least one aggravating circumstance which has been alleged. You may consider this victim impact evidence in determining the appropriateness of the death penalty only if you first find that the existence of one or more aggravating circumstance has been proven beyond a reasonable doubt by evidence independent from the victim impact evidence, and find that the aggravating circumstance(s) found outweigh the finding of one or more mitigating circumstances.
As it relates to the other sentencing options: You may consider this victim impact evidence in determining the appropriate punishment as warranted under the law and facts in the case.
The instruction is to be used in all future capital murder trials where victim impact evidence has been introduced, and is effective from the date this opinion is published.
In Turner v. State, 486 S.E.2d 839, 843 (Ga. 1997), the Court also addressed the need for cautionary instructions on victim impact evidence:
Turner did not request and the court did not instruct the jury regarding the victim impact statements. Because of the importance of the jury’s decision in the sentencing phase of a death penalty trial, it is imperative that the jury be guided by proper legal principles in reaching its decision. Additionally, we note that other states require that the jury be instructed on the purpose of victim impact evidence. Therefore, in future cases in which victim impact evidence is given in the sentencing phase of a death penalty or life without parole case, the trial court should instruct the jury regarding the purpose of victim impact evidence. For example, the trial court might charge:
The prosecution has introduced what is known as victim impact evidence. Victim impact evidence is not the same as evidence of a statutory aggravating circumstance. Introduction of victim impact evidence does not relieve the state of its burden to prove beyond a reasonable doubt the existence of a statutory aggravating circumstance. This evidence is simply another method of informing you about the harm caused by the crime in question. To the extent that you find that this evidence reflects on the defendant’s culpability you may consider it, but you may not use it as a substitute for proof beyond a reasonable doubt of the existence of a statutory aggravating circumstance.
Similarly, in State v. Nesbit, 978 S.W.2d 872, 891 (Tenn. 1998), the Tennessee Supreme Court permitted the introduction of impact evidence only when, on the basis of an in-camera hearing, the trial judge “determines that evidence of one or more aggravating circumstances is already present in the record.” Id. at 891. The Court also mandated that the jury must then instructed as follows:
The prosecution has introduced what is known as victim impact evidence. This evidence has been introduced to show the financial, emotional, psychological, or physical effects of the victim’s death on the members of the victim’s immediate family. You may consider this evidence in determining an appropriate punishment. However, your consideration must be limited to rational inquiry into the culpability of the defendant, not an emotional response to the evidence.
Victim impact evidence is not the same as an aggravating circumstance…. Introduction of this victim impact evidence in no way relieves the State of its burden to prove beyond a reasonable doubt at least one aggravating circumstance which has been alleged. You may consider this victim impact evidence in determining the appropriateness of the death penalty only if you first find that the existence of one or more aggravating circumstances has been proven beyond a reasonable doubt by evidence independent from the victim impact evidence, and find that the aggravating circumstance(s) found outweigh the finding of one or more mitigating circumstances beyond a reasonable doubt. Id. at 892.
Most recently, in Commonwealth v. Means, 565 Pa. 309, 334-335, 773 A. 3d 143 (2001), the Pennsylvania Supreme Court addressed the instructional issue as follows:
Moving to the concern raised by the lower court regarding jury instructions we note that it has always been the policy of this court to give our trial judges latitude in phrasing instructions. However, recognizing the complexity of victim impact testimony within the volatile atmosphere of the penalty phase in a death case we offer the following language as a prototype jury instruction. While the following charge is not mandated we believe it furthers the intended goal of admitting relevant victim impact testimony, while eliminating the potential for impassioned emotional appeals to the jury.
The prosecution has introduced what is known as victim impact evidence. Victim impact evidence is not evidence of a statutory aggravating circumstance and it cannot be a reason by itself to impose the death penalty. The introduction of victim impact evidence does not in any way relieve the Commonwealth of its burden to prove beyond a reasonable doubt at least one aggravating circumstance. You may consider this victim impact evidence in determining the appropriateness of the death penalty only if you first find that the existence of one or more aggravating circumstances has been proven beyond a reasonable doubt independent from the victim impact evidence, and if one or more jurors has found that one or more mitigating circumstances have been established by a preponderance of the evidence. Victim impact evidence is simply another method of informing you about the nature and circumstances of the crime in question. You may consider this evidence in determining an appropriate punishment. However, the law does not deem the life of one victim more valuable than another; rather, victim impact evidence shows that the victim, like the defendant, is a unique individual. Your consideration must be limited to a rational inquiry into the culpability of the defendant, not an emotional response to the evidence. The sentence you impose must be in accordance with the law as I instruct you and not based on sympathy, prejudice, emotion or public opinion and not based solely on victim impact.
Obviously, not all of the foregoing instructional language is a perfect fit with the California death penalty scheme. However, some of the Pennsylvania Supreme Court’s language in Means comes closest to our Supreme Court’s holding in Edwards that “factor (a) of section 190.3 allows evidence and argument on the specific harm caused by the defendant, including the impact on the family of the victim.” 54 Cal.3d at 835. The defense therefore proposes that in the absence of guidance by our own Supreme Court, the Court give a modified version of the Means instruction as proposed in the attached Victim Impact Instruction No. 2.
CONCLUSION
For all of the foregoing reasons, defendant JOHN DOE respectfully moves for an order : (1) requiring all victim impact evidence to be presented by way of videotaped examination in lieu of live testimony; (2) requiring that all victim impact witnesses be instructed prior to their testimony in accordance with the attached victim impact Instruction No. 1 or similar language; and (3) requiring that the jury be instructed prior to the receipt of any victim impact evidence in accordance with the attached victim impact Instruction 2 or similar language.
DATED: September 18, 2002
Respectfully submitted,
MARCIA A. MORRISSEY
MICHAEL N. BURT
Attorneys for Defendant
JOHN DOE
By:
______________________
MICHAEL N. BURT
VICTIM IMPACT INSTRUCTION NO. 1
(to be read to each victim impact witness)
The court will not allow a witness to testify if the person is unable to control his or her emotions. The court will also caution you that the court will not permit any testimony concerning your characterizations and opinions about the defendant, the crime, or the appropriate sentence.
___Given as requested
___Given as modified
___Refused/Reasons:
VICTIM IMPACT INSTRUCTION NO. 2
(to be read to the jury prior to any victim impact evidence)
The prosecution will now introduce what is known as victim impact evidence. Victim impact evidence cannot be a reason by itself to impose the death penalty. Victim impact evidence is simply another method of informing you about the nature and circumstances of the crime in question. You may consider this evidence in determining an appropriate punishment. However, the law does not deem the life of one victim more valuable than another; rather, victim impact evidence shows that the victim, like the defendant, is a unique individual. Your consideration must be limited to a rational inquiry into the culpability of the defendant, not an emotional response to the evidence. The sentence you impose must be in accordance with the law as I instruct you and not based on sympathy, prejudice, emotion or public opinion and not based solely on victim impact.
___Given as requested
___Given as modified
___Refused/Reasons:
