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Videos In The Courtroom: The Use of Emotional Video Montages on the Rise in Criminal Cases … But Are They Fair?

As reported in a recent Newsday story, the use of a video photo montage (an emotional video providing a glimpse into the life of a deceased victim) is becoming more common in criminal courtrooms across the country, including criminal courts here on Long Island.  These powerful videos — played during sentencing hearings as part of “victim impact statements” – provide family members with the opportunity to have their loved one’s voice heard … and are increasingly adding a new element to criminal sentencing proceedings.

These video montages are powerful, emotional and moving tributes to homicide victims.  They are an important part of celebrating the lives and accomplishments of victims who do not have the opportunity to speak for themselves.  They are, for many families, something that can help bring closure to criminal proceedings.  But in today’s criminal justice system, are they fair?

It has always been customary for victims to speak at sentencing, and the victim impact statement is one of the most established, and effective, ways to communicate the voice of the victim throughout the criminal justice system.  However, in the case of a video/photo montage, the issue is that although it paints a very vivid portrait of the victim’s life and the impact of the tragic loss of life, it is a portrait that has, in effect, been painted by the person producing the video, rather than by the actual victim.  And while nobody will ever question that the words and photos brought to life via these videos are heartfelt and poignant, it’s important to consider the impact that these video tributes have on sentencing – as emotions can often run so high during viewing these videos that judgment may be improperly skewed.

To date, video montages in criminal trial cases here on Long Island have most often been played after the judge has already decided how much prison time would be given to the defendant – and criminal defense attorneys have not typically objected to their use since a sentencing commitment has been set.  However, if a judge is undecided, the playing of these videos is certainly likely to have an impact on the judge’s sentencing decision … and may serve to prejudice him or her based on an emotional portrait painted by a third party videographer.

Although it hasn’t happened here on LI as of yet, there have been cases throughout the country where sentences have been thrown out and new trials called for based on later rulings that the video montages used as victim impact statements should not have been admissible.  Last year, the New Jersey Supreme Court “was the latest in a long line of courts to rule on whether a lengthy and very personal victim impact statement is admissible”, with the Supreme Court noting the video’s “potential to unduly arouse or inflame emotions.”

As noted in the Newsday article, the legal debate over whether these video montages are appropriate, and fair, will certainly continue to expand … as technology will continue to make it easier than ever to take video and create home-based video montages.  However, it’s critical to keep in mind that although these videos might become more commonplace, their admission into a court of law remains questionable – and defense attorneys need to be vigilant in working to protect the rights of defendants to make sure that anything entered into the court is admissible – and fair – to their clients.

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