Should a Killer’s Victim Be Able to “Speak” at a Sentencing Through AI?
Last week, the road-rage killer of an Arizona man was sentenced to 10 1/2 years in prison after his victim “spoke” to the court via a victim impact statement (VIS) created through artificial intelligence. The trial court judge allowed the victim’s family to play an AI-generated video with a version of the victim—including his face and body and a lifelike voice—which appeared to ask the judge for leniency. The family has posted the statement here on YouTube. The defendant was apparently sentenced to the maximum term and has promised to challenge the statement on appeal. In my view, this kind of statement seems like a useful technological innovation that should be generally allowed, subject to reasonable limitations imposed by the trial court (which I discuss at the end of this post).
In this post, I discuss this AI-generated victim-impact statement against the backdrop of the existing legal landscape in this country. All fifty states and the federal system allow victims to deliver victim impact statements, as I outline in this article. (Interestingly, many other countries use some form of victim impact statement as well.) In homicide cases such as this Arizona case, the victim’s family members step into his shoes as his representative to deliver the statement. I have made the general case for allowing victim impact statements in two papers, “In Defense of Victim Impact Statements” and “How Victim Impact Statements Promote Justice: Evidence from the Content of Statements Delivered in Larry Nassar’s Sentencing” (co-authored with Professor Edna Erez). The U.S. Supreme Court has also approved victim impact statements even in capital cases, in Payne v. Tennessee (1991). To be sure, academics such as Professor Susan Bandes and Professor Mike Vitiello have raised objections to VISs. But for purposes of this post, I will assume that the legitimacy of VISs and address the narrower question of whether an AI-generated statement should be permitted.
This question should be assessed in light of the recognized purposes of victim impact statements. The first purpose is to provide relevant information to the sentencers, often (as in this Arizona case) a judge. This purpose has been described as the “informational rationale” for victim impact statements. Through a VIS, the victim’s family members are allowed to provide “a quick glimpse of the life” the defendant “chose to extinguish,” thereby reminding the sentencer that “the person whose life was taken was a unique human being,” as Justice O’Connor explained in her concurring opinion in Payne. An AI-generated statement simply builds on that approach.
An AI-generated statement is not too far removed from previously used technologies, which help to provide the glimpse into the victim’s life. For example, in homicide trials, it has long been the practice to allow the prosecution to introduce a photograph of the victim taken when the victim was alive. For example, a Utah statute (enacted in 1994 to enforce Utah’s Victims’ Rights Amendment) provides that “[i]n any homicide prosecution, the prosecution may introduce a photograph of the victim taken before the homicide to establish that the victim was a human being, the identity of the victim, and for other relevant purposes.” Of course, in a criminal case by the time of sentencing, the defendant has been proven guilty beyond a reasonable doubt, and so issues related to potential bias while determining guilt are no longer in play.
At sentencing, appellate courts have approved of video montages of photographs of a victim and even videos of a victim. For example, in 2009, the California Supreme Court considered the admissibility in a death penalty case of an eight-minute video of the victim and his family enjoying a trip to Disneyland. The Court rejected a defendant’s challenge, calling the tape an “awkwardly shot ‘home movie'” lacking the elements generally designed to stir up emotions.” People v. Dykes, 209 P3d 1, 44-45 (Cal. 2009).
However, such videos can go too far. For example, in 2004, a federal district court
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