1 Cite as: 55 5 U

. S. ____ (2008)

B REYER , J., diss enting 

## SUPREME CO URT O FTHE UNI TED STATES DO UGLA S OLIVE R K E LLY 07–11073 v. CALIF ORN IA

SAMUEL Z AMUDI O 07–11425 v. CALIF ORN IA
ON PETITIONS FOR WRI T S OF CERTI O RARI TO THE SUPREM E COURT OF CALIFORNIA Nos. 07– 11 073 an d 07–1 142 5

. Dec i ded Nov e mber10, 20 08 J USTICE B REYER , dissenting from the denial of the petitions for writs of ce rtiorari. I would grant certiorar i in these cases for many of the reasons set forth in J US TICE S T EVE NS ’ separa te statement. In Paynev. Tennessee , 501 U. S. 8 08 (1991) , t h e Court he ld that “if a State decides to permit consideration of” victim impact “e vidence, ‘the Eigh th Amendment erects no per se bar.’ ” Id. , at 831 (O’Connor, J., conc urring). Bu t th ree of the six Payne- majorityJustices, after so characterizing th e Court’s hol d ing, adde d that “ [i]f, in a parti cular case, a witness’ tes t imony or aprosecutor’s remark s oinfects the sentencing proceeding as to render it funda m entally un

fair, the de fendant may seekappropriate reli ef under the Due Process Clause of the Fourteenth Amendment.” Ibid. The question here iswhether admission at a death penalty pro c eeding of a particula r film about the victim ’ s life goes be yond due process bound s. I would concede that the film atissue will help the ju ry understand “the full extent of the harm caused by the crime, including its impact on t h e victim’s f a mily and community.” Id. , at 830. It will help “remind the jury that the person whose lif e was taken was a unique human b e ing.” Id. , at 831. And i t2 KELLY v. CALIFORNIA

B REYER , J., diss enting will give the jury, at the least, “ ‘a quickglimpse of the life’ ” the defendant “ ‘chose to extinguish.’ ” Id. , at 830. The film, i nmy view, is poignan t, tasteful, artistic, and, above all, m o ving. On the oth e r hand, th e film’s personal, emot ional, and artistic attributes themselves create the le gal proble m. They rende rthe film’s purely em otional impact st rong, perhaps unusually so. That emotional impact is driven in part by the music, the mother’s voiceover, and the use of scenes without victim or family (for example, the film concludes with a clip of wild horses running free). Those aspects of the film tell the jury litt l e or nothing about the crime’s “ci r c umstances,” Peoplev. Robinson , 37 Cal. 4th 592, 650, 1 71 P. 3d 363, 402 (200 5) (permitting the intro

duction of penalty-p hase victim impact evidence as a “circumstan ce of the cr ime” under California Penal Code Ann. §190.3 factor (a) (West 2008)), but nonetheless p r o duce a powerful purely emotional impact. It is this mini

mal probity coupled with the video’s pure ly emotional impact thatmay call due process protections into play. This Court has made c l ear that “a ny decision to impose the death s e ntence” must “be, an d appear to be, ba sed on reason rath er than ca price or emotion.” Gardner v. Flo r ida , 430 U. S. 349, 35 8 (1977) (pl u rality opi n ion). A re view of th e film itself, http://www.supremecourtus.gov/ opinions/vi d eo/k e lly_v_california. html, alon g with the sources to which J U S TICE S T EVE NSrefers, makes clear that the due process p r oblem of disproportionately power

ful emotionis a serious one. Cf. Unit e dSt at esv. Johnson , 362 F. Supp. 2d 1043, 1107 (N D Iowa 2005) (describing “juror’s sobbing” that “still ri ngs” in judge’s “ears”). I understand the difficul t y of drawi n g a line b e tween wh at is, and is not, constituti onally admissible in this area. But examples can help elucidate constitutional guidelines

. And in my view, the Court should grant certiorari and consider these cases in an effort to do so.