Cite as: 555 U. S. ____ (2008) 1 

BREYER, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

DOUGLAS OLIVER KELLY 

07–11073 v. 

CALIFORNIA 

SAMUEL ZAMUDIO 

07–11425 v. 

CALIFORNIA 

ON PETITIONS FOR WRITS OF CERTIORARI TO THE SUPREME

COURT OF CALIFORNIA

Nos. 07–11073 and 07–11425. Decided November 10, 2008 

JUSTICE BREYER, dissenting from the denial of the

petitions for writs of certiorari. 

I would grant certiorari in these cases for many of the

reasons set forth in JUSTICE STEVENS’ separate statement. 

In Payne v. Tennessee, 501 U. S. 808 (1991), the Court held 

that “if a State decides to permit consideration of” victim

impact “evidence, ‘the Eighth Amendment erects no per se 

bar.’” Id., at 831 (O’Connor, J., concurring). But three of 

the six Payne-majority Justices, after so characterizing the 

Court’s holding, added that “[i]f, in a particular case, a 

witness’ testimony or a prosecutor’s remark so infects the 

sentencing proceeding as to render it fundamentally unfair, the defendant may seek appropriate relief under the 

Due Process Clause of the Fourteenth Amendment.” Ibid. 

The question here is whether admission at a death

penalty proceeding of a particular film about the victim’s 

life goes beyond due process bounds. I would concede that 

the film at issue will help the jury understand “the full 

extent of the harm caused by the crime, including its

impact on the victim’s family and community.” Id., at 830. 

It will help “remind the jury that the person whose life 

was taken was a unique human being.” Id., at 831. And it 
2 KELLY v. CALIFORNIA 

BREYER, J., dissenting 

will give the jury, at the least, “‘a quick glimpse of the 

life’” the defendant “‘chose to extinguish.’” Id., at 830. 

The film, in my view, is poignant, tasteful, artistic, and, 

above all, moving. 

On the other hand, the film’s personal, emotional, and 

artistic attributes themselves create the legal problem. 

They render the film’s purely emotional impact strong,

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 little or nothing about the

crime’s “circumstances,” People v. Robinson, 37 Cal. 4th 

592, 650, 171 P. 3d 363, 402 (2005) (permitting the introduction of penalty-phase victim impact evidence as a

“circumstance of the crime” under California Penal Code 

Ann. §190.3 factor (a) (West 2008)), but nonetheless produce a powerful purely emotional impact. It is this minimal probity coupled with the video’s purely emotional

impact that may call due process protections into play. 

This Court has made clear that “any decision to impose

the death sentence” must “be, and appear to be, based on 

reason rather than caprice or emotion.” Gardner v. Florida, 430 U. S. 349, 358 (1977) (plurality opinion). A review of the film itself, http://www.supremecourtus.gov/

opinions/video/kelly_v_california.html, along with the 

sources to which JUSTICE STEVENS refers, makes clear 

that the due process problem of disproportionately powerful emotion is a serious one. Cf. United States v. Johnson, 

362 F. Supp. 2d 1043, 1107 (N D Iowa 2005) (describing 

“juror’s sobbing” that “still rings” in judge’s “ears”). 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. 

And in my view, the Court should grant certiorari and

consider these cases in an effort to do so.