                  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 un
fair, 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 intro
duction 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 pro
duce a powerful purely emotional impact. It is this mini
mal 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. Flor
ida, 430 U. S. 349, 358 (1977) (plurality opinion). A re
view 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 power
ful 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.
