BOB GARFIELD:
This is On the Media. I'm Bob Garfield. This week, the Supreme Court announced it would not hear cases about the use of victim impact statements, testimony given in the criminal sentencing process to demonstrate the human toll of a crime.

One of the cases involved Douglas Oliver Kelly, a man who was convicted of a 1993 first-degree murder and rape and was put on Death Row in California. Before the jury considered whether or not to sentence Kelly to death, they watched a 20-minute video montage narrated by the mother of the 19-year-old murder victim, Sarah Weir.

The montage is made up of still photographs and home video clips that follow Sarah from her birth -
[CLIP]:
SARAH WEIR’S MOTHER:
Sarah was born on May 7th, 1974 in Calgary, Alberta. Most of these pictures were taken during July and August of that year.
[END CLIP]
BOB GARFIELD:
- to the time of her death.
[MUSIC UP AND UNDER – ENYA SINGING]
SARAH WEIR’S MOTHER:
As time goes by, I try very hard not to think of Sarah in terms of this terrible crime.
[END CLIP]
BOB GARFIELD:
You may have noticed the background music. That’s Enya, the lushly orchestrated, vaguely new agey Irish vocalist, whose performance actually became an issue in the case.

Evan Young, the public defender who handled Kelly’s appeal, argued that using Enya made the testimony unduly prejudicial.
EVAN YOUNG:
“Unduly prejudicial” means that the excessive emotion of the evidence overwhelms the possibility that a decision by a jury could be reliable, accurate, not arbitrary.
BOB GARFIELD:
Now, you could argue that victim impact statements, in and of themselves, are prejudicial because they're designed, in fact, to generate emotion among a jury. But the Supreme Court has ruled, no, no, victim impact statements, they're okay.
EVAN YOUNG:
The theory behind them did not have to do with emotion. It had to do with allowing the state the same ability that a defendant had, which, in a capital case, a defendant is allowed to put on evidence to show his or her life, you know, what happened to him or her growing up. And the court wanted to balance that.

While the court acknowledged that this kind of evidence could be emotional, they also put in the idea that if it became too emotional and so infected the process that it rendered it fundamentally unfair, then that would cross the line and violate due process.
BOB GARFIELD:
But you’re saying at some point it really gets ridiculous.
EVAN YOUNG:
Well, that’s right. I mean, when you start talking about introducing videotapes, films, especially ones set to music, I mean, there really is no other reason other than to play to someone’s emotion.
BOB GARFIELD:
In fact, in your petition to the court you used a quotation of the American composer Aaron Copland about the power of music [LAUGHS] not only to soothe the savage breast but to get it agitated.
EVAN YOUNG:
He was discussing his score for the film Of Mice and Men, and he said that the score is designed to strengthen and underline the emotional content of the entire picture. And then he went on to say that the quickest way to a person’s brain is through his eye, but even in the movies the quickest way to his heart and feelings is still through the ear.
BOB GARFIELD:
[LAUGHS] Now, what is, to my way of thinking, just truly bizarre [LAUGHS] about this case is that the California Supreme Court, whose decision you were appealing to the U.S. Supreme Court, the ruling was that some music was clearly too emotional but others is just fine. They drew a distinction between Enya and, for example, James Taylor. What was that all about?
EVAN YOUNG:
Well, you have the California Supreme Court trying to be music critics. They say that the music of Enya was generally soft, not stirring. And I don't know whether they're trying to make the distinction between the volume at which it was played or the emotion that it is supposed to inspire, but it seems like a difficult distinction to make.
BOB GARFIELD:
Yeah, although, you know, you said that it puts judges and justices in the position of being music critics, but it sounds more like it puts them in the position of being, I don't know, psychoneurologists, determining at what point people’s emotions are affected by a certain vocalist.
EVAN YOUNG:
Well exactly, and there’s simply no way to know that. And, you know, as I pointed out in my brief, you would never allow a witness to testify in court accompanied by some sort of music. It just doesn't make any sense.
BOB GARFIELD:
And, in fact, it is unquestionably absurd to imagine it, and yet the victim statement is testimony. But the Supreme Court says, no, they're down with that. So what’s your next move?
EVAN YOUNG:
Just to keep on presenting this argument to the trial court and the appellate court and hope that the issue makes its way back to the Supreme Court in a case in which they find it worthy of another look. I think that they are going to have to address this situation in the near future. As I pointed out in my brief, the cases in California are coming fast and furious, and the videotapes themselves are becoming much more sophisticated.
BOB GARFIELD:
Should you ever get to appear before the Supreme Court, as you make your oral arguments, who do you have as your music track?
EVAN YOUNG:
Oh, James Taylor, absolutely.
[MUSIC UP AND UNDER]
BOB GARFIELD:
Evan, thank you so much.
EVAN YOUNG:
[LAUGHS] Oh, thank you.

BOB GARFIELD:
Evan Young is a senior deputy state public defender in the city of San Francisco.
[MUSIC UP AND UNDER: JAMES TAYLOR SINGS FIRE AND RAIN]