Asking Aurora Victims to Control Emotions When Testifying is "Insulting," Prosecutors Say

A screen capture from a video of the makeshift memorial for the shooting victims.
A screen capture from a video of the makeshift memorial for the shooting victims.

Update: Prosecutors in the James Holmes case say it's "unprecedented," "insulting" and "unnecessary" for the judge to tell victims of the Aurora theater shooting to control their emotions while testifying at the trial of James Holmes, the accused gunman. Holmes's defense attorneys filed a motion last week asking Judge Carlos Samour to do just that.

Continue to read more about Holmes's original motion and prosecutors' response.

See also: James Holmes Trial Can Be Televised, Judge Rules, But No TV Cameras in Courtroom

Holmes's attorneys asked Samour to give victims an instruction before they testify during the penalty phase of the trial, which will take place if jurors find Holmes guilty, about the impact the crime had on them. In part, the instruction says, "Your testimony should be factual, not emotional, and should be free of inflammatory comments or references. The Court will not allow you to testify if you are unable to control your emotions."

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But prosecutors say Holmes's attorneys are misinterpreting prior judges' rulings in making the argument that such an instruction is warranted. "The procedures suggested by the defendant are repetitive, cumulative and burdensome," prosecutors wrote.

Furthermore, they argue that asking victims to keep their emotions in check -- and for jurors to disregard those emotions -- is both inappropriate and unrealistic.

"In a long trial, where evidence will be presented regarding a mass shooting where twelve victims were murdered and seventy more victims were attempted to be murdered...it is possible that a witness and/or a juror listening to the testimony could unintentionally become emotional despite the very best efforts of the witness or victim or juror to refrain from becoming emotional," prosecutors wrote.

"If the Court were to grant the motion, the drop of one accidental tear or the utterance of one sniffle would inevitably form the basis of a request for sanctions, or a motion for a mistrial, by virtue of the violation of the Court's Order. The reality is that the individuals who will be testifying are human beings who may show emotion. There is no requirement in the law that the victims refrain from doing so. "

Read the prosecution's response below.

Prosecution's Response to Defense Motion Re: Instructions to Victims

Continue to read our original post about Holmes's attorneys' request.   Original post, published October 10: James Holmes's attorneys would like the judge in his murder case to instruct victims of the 2012 Aurora theater shooting to control their emotions when testifying about the impact the crime had on them.

Holmes's attorneys filed a motion (on view below) asking the judge to give victims a specific instruction before they testify during the penalty phase of the trial, which will take place if jurors find him guilty. The instruction says, in part: "Your testimony should be factual, not emotional, and should be free of inflammatory comments or references. The Court will not allow you to testify if you are unable to control your emotions."

Holmes's attorneys argue that the instruction is needed to ensure that victims' testimony doesn't "overwhelm the jurors with emotion," thereby causing them to impose an unfair sentence on Holmes. Prosecutors are seeking the death penalty against him.

Holmes is accused of murdering twelve people and injuring seventy others by opening fire in an Aurora movie theater in July 2012. He has pleaded not guilty by reason of insanity.

The motion also asks Judge Carlos Samour to give an instruction to the jury before it hears victims' testimony. That instruction says, in part: "Your consideration of victim impact evidence must be limited to a rational inquiry into the culpability of Mr. Holmes, not an emotional response to the evidence. In rendering your sentencing verdict in this case, you must not be influenced by any sort of sympathy or sentiment for the victim's family."

Holmes's attorneys asked for a hearing to debate their request, but Samour seems disinclined to grant one. The motion, he wrote in an order (also on view below), "should have been filed last year. The Court will not allow untimely motions to delay this trial." Holmes's trial is scheduled to begin on December 8 with jury selection.

Read the motion below. It includes the full text of the instructions Holmes's attorneys would like Samour to give the testifying victims and the jury.

Motion for Instructions to Witnesses and Jurors Re: Victim Impact Evidence

Order Setting Briefing Schedule on Defense Requests

Follow me on Twitter @MelanieAsmar or e-mail me at melanie.asmar@westword.com

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