explaining that fact finders might "gain greater insight" from audio-visual devices
How later courts described this case
- explaining that fact finders might "gain greater insight" from audio-visual devices
- "Videotaped confessions ... are regularly admitted to show the jury the demean- or of a person and the circumstances under which confessions are made."
- statute permitting pre-mortem photo of vie-tim in homicide trials did not strip trial court of authority to exclude such evidence, when appropriate, under other provisions of the Evidence Code
- statute permitting pre-mortem photo of victim in homicide trials did not strip trial court of authority to exclude such evidence, when appropriate, under other provisions of the Evidence Code
Written by the judges who cited it.
The opinion
LUMPKIN, Vice-Presiding Judge:
Concur in Result/Dissent in Part.
¶ 1 I concur in the results reached in this case, but dissent in part. My vote is based upon the following reasons.
¶ 2 First, I cannot agree with the confusing analysis used concerning proposition four, i.e., expert testimony on the ultimate issue. The opinion’s discussion of this issue and paraphrased summaries of White v. State, 1998 OK CR 69 , 973 P.2d 306 and Hooks v. State, 1993 OK CR 41 , 862 P.2d 1273 use dangerous wordplay that could dilute the applicable law. Paragraphs 9 through 11 of my specially concurring opinion in White provide a more thorough explanation of the applicable rules, rules that fully comply with the American Bar Association Standards for Criminal Justice.
¶ 3 For purpose of clarity, I reiterate here that Standard 7-6.6 of the American Bar Association Criminal Justice Mental Health Standards provides that “[o]pinion testimony, whether expert or lay, as to whether or not the defendant was criminally responsible at the time of the offense charged should not be admissible.” Furthermore, the commentary to that standard provides that an “expert witness should not be permitted to express opinions on any question requiring a conclusion of law or a moral or social value judgment properly reserved to the court or to the jury.” And later, that same commentary indicates that “[tjerms like premeditation, malice, and provocation have technical legal meanings concerning which mental health or mental retardation professionals can pretend no expertise.”
¶ 4 Accordingly, I have no qualms with the trial court’s in limine ruling that prevented the defense expert from testifying as to Appellant’s inability to develop the requisite mens rea. That issue was ultimately for the jury to decide. In addition, psychological testimony is totally subjective and not provable with objective evidence. It is educated speculation at best. For that reason, we have previously limited such testimony to educating the jury regarding the nature of the proffered mental health issue from which the jury could then render its decision based on the facts of the crime. In this case, Appellant’s ability to remember and relate the facts of the crime carry great weight in disproving that proffered opinion. In addition, Appellant admitted he knew what he had done and it was wrong.
¶ 5 Second, concerning the victim photograph issue raised in proposition five, the Court seems to abandon the clear legislative intent of 12 O.S.Supp.2002, § 2403 by applying the old rule applicable to such photographs, prior to 2002 amendments. The statutory amendment plainly means that a victim’s photo is definitely admissible in a criminal homicide prosecution so long as it is an accurate representation of the victim at the time of the death and is not an attempt to play on the sympathy or sentiment of the trier of fact. The plain language of the current statute is clear and the Court should not employ an overall relevance balancing test under the former version of the statute.
¶ 6 Third, I agree with the opinion that the videotape of the mother should have been admitted. But I agree only because of the agreement of the parties and the fact the State made no objection to the use of the videotape at the time the agreement was made. There is nothing unconstitutional about Oklahoma’s statutory method for preserving witness testimony. There may be more modern ways to preserve such testimony, but that does not make the statute unconstitutional. Until the statute is changed we *463 are bound to follow the statute even if the process is antiquated.
¶ 7 This Court has recently emphasized the importance of following a statutory provision even to the point it can be a structural error in a trial. See e.g., Golden v. State, 2006 OK CR 2 , 127 P.3d 1150 . But now the Court wants to brush away statutory provisions because it has conceived of new ways that might be better. This, of course, leads to inconsistencies. I cannot join in a result-oriented jurisprudence designed to ensure mothers always get to testify. Regardless of who they are, witnesses must comply with rules established by the Legislature. It seems the Court only wants to view statutes with the weight of “structural error” if the use of that view impedes the state.
¶ 8 I agree the Legislature should update our statutes on preserving witness testimony. But until the Legislature does, this Court is without authority to amend statutes. We can only interpret them and determine if they are Constitutional.
¶ 9 Fourth, there is no reason not to impeach family members who are offering mitigating evidence. See OUJI-CR 2d. 9-22. We cannot provide a defendant’s family members a safe haven that deprives the triers of fact the truth of their own prior illegal activates. It is for the trier of fact to decide the credibility of the witnesses, and the trier of fact must be informed of the witnesses’ character to make an informed finding.