The Death Penalty


I. Introduction
The use of victim impact evidence, usually in the form of a
victim impact statement ("VIS"), in death penalty
litigation is relatively recent. This type of evidence
falls into three categories: information pertaining to the
characteristics of the victim, information about the
repercussions of murder on family and friends, and opinions
of the victim's family members concerning the crime, the
defendant, and the proper sentence.1 The Supreme Court
first considered the issue in a 1987 case, Booth v.
Maryland, holding that evidence pertaining to the victim
and the effect of the crime on the victim's family is per
se inadmissible at a capital sentencing hearing because it
violates the Eighth Amendment.2 Four short years later, the
Court revisited the issue and did an abrupt shift holding
that this type of evidence was now admissible.3 While at
first glance the Payne principle may appear to be a sound
holding, in practice this decision runs contrary to current
death penalty jurisprudence.
II. Death Penalty Jurisprudence Today
In 1972, Furman v. Georgia ushered in the current era of
death penalty jurisprudence
significantly altering the previous state of the law.4
Death was recognized as a sanction
quite different from all other punishments due to its
severity and finality.5 Judges and
juries were no longer to be statutorily afforded unlimited
discretion in capital
sentencing. The statutes at issue violated the Eighth
Amendment by allowing the
possibility of arbitrary and discriminatory application of
the death penalty thereby
violating the constitutional prohibition against cruel and
unusual punishment.6 In
addition, discretionary sentencing provided no meaningful
basis for differentiating the
large number of cases in which the death penalty was
rejected from the few cases in which
it was imposed.7 Furman did not provide states with any
guidance to draft statutes that
would direct a jury in a sufficiently discretionary manner.
In response to Furman's
mandate, some states chose to enact mandatory death
penalties for certain crimes in an
effort to eliminate discretion altogether.8 Other states
enacted statutes that required
the jury to channel their discretion during the sentencing
phase of capital cases by
balancing a series of mitigating and aggravating factors.9
Four years after Furman, Gregg
v. Georgia,10 Woodson v. North Carolina,11 and their
companion cases, examining several of
these state statutes, explained and refined this earlier
decision by determining that
sentencing discretion should be merely limited not
abolished. As a result, the statutes
that directed jurors to balance mitigating and aggravating
factors ware upheld. The
mandatory death penalty statutes were declared
unconstitutional since every defendant is a
unique human being and should not blindly be subjected to
the death penalty.12 In order
for a jury to be allowed to impose a death sentence, the
Court held that a state needed to
implement a system which examined all relevant aspects of
the circumstances of the crime
and the particular character and record of the individual
defendant.13 The Court focused
once again on the severity and irrevocability of a death
sentence which cannot be modified
at a later point in time like other sentences. Since this
is the case, the plurality
reasoned that the death penalty sentencing procedures
require a greater indicia of
reliability and individualized consideration.14 The
doctrine of "individualized
consideration" was further clarified in Lockett v. Ohio15
when the Court struck down a
statute that limited the number of mitigating factors a
jury could consider.16 The
majority held that the Eighth Amendment requires that all
mitigating factors be evaluated
when a jury is considering a capital sentence because "the
imposition of death by a public
authority is so profoundly different from all other
penalties, [that the Court could] not
avoid the conclusion that an individualized decision is
essential in capital cases."17
Combining these important cases, death penalty
jurisprudence mandates that a statute meet
two requirements in order to withstand constitutional
scrutiny.18 A jury must not exercise
unlimited discretion during a capital sentencing procedure.
In addition, juries must focus
on the individual characteristics of the defendant and the
circumstances of the crime.19
III. Victim Impact Evidence
The first Supreme Court case to consider victim impact
evidence was Booth v. Maryland. John Booth was convicted on
two counts of first degree murder and chose to be sentenced
by a jury.20 Since the State requested the death penalty, a
Maryland statute required that a VIS be compiled that
described the effect of the crime on the victims' family
members.21 The VIS related in exhaustive detail the effect
of the murders on the family and capitalized on the
extraordinary personal characteristics of the victims.22
Booth was sentenced to death, and the Maryland Court of
Appeals affirmed.23 The Supreme Court granted certiorari to
determine the constitutionality of victim impact evidence
in a capital sentencing proceeding.24 The Court held that
introducing a VIS into a capital sentencing hearing
violated the eighth amendment.25 The majority found that
the information contained in a VIS was irrelevant at a
death penalty hearing and created the possibility that the
death penalty would be applied in an arbitrary and
capricious manner.26 The information was not relevant to
the defendant's decision to kill in most circumstances and
therefore should not factor into the defendant's
blameworthiness. Allowing the jury to focus on factors of
which the defendant was unaware could potentially shift
attention away from the evidence the jury should properly
be considering.27 Even if the defendant was aware of some
of the information contained in the VIS, due to the nature
of the information, it still creates an unacceptable risk
that the death penalty will be applied in an arbitrary
manner. The Court expressed concern that articulate
families would express their grief in a persuasive manner
while other families' experiencing the same sense of loss
would not communicate to the jury in the same manner. Such
distinctions should not affect a capital sentencing hearing
because "the degree to which a family is willing and able
to express its grief is irrelevant to the decision whether
a defendant, who may merit the death penalty, should live
or die."28 Shortly thereafter, the Court expanded the Booth
doctrine to include prosecutorial comments concerning the
victim's characteristics in South Carolina v. Gathers.29
The Court relied heavily on the rationales put forth in
Booth finding that evidence about the victim of which the
defendant was unaware and which did not factor into the
decision to kill was irrelevant to the circumstances of the
crime.30 A mere four years after the Court's first ruling
on victim impact evidence, the Court abruptly reversed its
position on the issue in Payne v. Tennessee.31 The majority
held that the Eighth Amendment does not per se bar a jury
hearing a capital sentencing case from considering victim
impact statements which include the victim's
characteristics or the impact of the death on the victim's
family, and that prosecutors are free to argue such
evidence at the hearing.32 The Court found that assessment
of harm is a factor to consider when determining punishment
and that victim impact evidence constitutes another way to
show the jury the harm caused by the defendant.33 Moreover,
since no limits are placed on the number of mitigating
factors that can be put into evidence, the State should
also have the opportunity to offer "a glimpse of the life"
which the defendant "chose to extinguish."34 Last, victim
impact evidence provides an opportunity for the sentencing
authority to view each victim's uniqueness as a human
being.35 Since Payne, no other Supreme Court decisions have
dealt with victim impact evidence.
IV. The Effect of Victim Impact Statements
Admitting victim impact evidence into a capital sentencing
proceeding permits the
possibility that the death penalty will be imposed in an
arbitrary and capricious manner in
violation of the Eighth Amendment.36 Consideration of death
penalty jurisprudence since
Furman shows that the Court has focused on two factors. In
order to insure that the
sentence is not imposed in an arbitrary or discretionary
manner, the first involves the
channeling and directing of discretion afforded the jury in
determining whether an
individual defendant deserves a capital sentence.37 Second,
the jury's decision to impose
death should be focused on the defendant as an individual
and the circumstances of the
particular crime.38 Victim impact evidence as either an
aggravating factor or information
that should factor into the jury's sentencing determination
should be evaluated in light of
these two factors to conform with current capital
sentencing jurisprudence. Upon doing so,
it is apparent that victim impact evidence violates both of
these requirements. The
complete focus on the victim is the first problem with
allowing a jury to consider a VIS.39
In the situation where the victim was a well-respected and
loved individual, the defendant
is placed in a position where he cannot rebut the family's
testimony for fear that the
defendant and defense counsel will appear callous for
criticizing a dead person. Moreover,
a defendant could not possibility attempt to rebut the
extent of an individual's love for
someone.40 This type of evidence does no more than inflame
the jury and allows a death
sentence to be imposed in an arbitrary manner since the
jury potentially focuses on the
victim not the defendant. Moreover, no standard is offered
to determine when the VIS
information should warrant the death penalty and when it
should not. It also "allows the
possibility that the jury will be so distracted by
prejudicial and irrelevant
considerations that it will base its life-or-death decision
on whim or caprice."41 The
flip side to admitting this evidence is equally
distressing. The sentencing phase becomes
a "mini-trial" on the victim's character and forces the
jury to focus on the traits of the
victim and not on the characteristics of the defendant and
circumstances of the crime.42 

The principle set forth in Payne permits defendants to
introduce the character of the
defendant even when the prosecution has not.43 When the
drunk, insane, immoral, or
criminal victim is murdered, the defense attorney will feel
compelled to decimate the
victim's memory.44 This simply adds to a family's distress
over having lost a loved one by
forcing them to watch the destruction of the victim's
character. In the situation where
the victim has no loved ones, the defense counsel is
spending time attacking the victim
when the focus should be on the defendant. Once more, the
focus is on the victim and not
the defendant violating the "individualized consideration"
portion of the death penalty
jurisprudence. In a similar vein, the Booth Court pointed
out that "in some cases the
victim will not leave behind a family, or the family
members may be less articulate in
describing their feelings even though their sense of loss
is equally severe."45 The
decision to sentence a defendant to death should never turn
on a family's ability to
express its grief.46 Similarly, a defendant should not
benefit solely because the victim
he chose has no family to testify during the sentencing
phase. This evidence offers no
"principled way to distinguish [situations] in which the
death penalty was imposed, from
the many cases in which it was not,"47 and therefore should
not be admissible. By nature,
the content of victim impact evidence varies greatly from
case to case and will therefore
inject a unacceptable degree of arbitrariness into the
sentencing procedure and provide no
means to channel the jury's discretion. Victim impact
evidence is used in capital
sentencing proceedings to show the jury the extent of
psychological and emotional harm
caused by the victim's murder.48 The social worth and
stature of the victim in society
fits within this definition as harm to society as a whole
and harm to the family.49 

Therefore, the murderer of a victim whose reputation in the
community was impeccable will
be perceived as having caused greater harm to a family and
will have an increased
likelihood that death will be imposed. If the victim had no
societal worth, the chances
that death will be imposed on the defendant are
diminished.50 The majority in Payne argued
that evidence of this nature was not offered to make
comparisons of victims but instead to
show "each victim's uniqueness as an individual human
being."51 However, as Justice
Stevens effectively countered in his dissent, the
uniqueness of every individual is so
basic a proposition that no evidence to support that idea
is necessary.52 Since the
uniqueness of each person is obvious, the evidence can only
serve to show that some victims
were worthier than others and therefore the punishment for
the worthier victims should be
harsher.53 In addition, "the possibility that a sentencing
decision might turn on
irrelevant distinctions among defendant's victims is also
troublesome because it
legitimates the notion that society should be more outraged
about crimes against some
victims than about those against others."54 The criminal
justice system views the crime as
murder regardless of what standing in the community the
victim had. The goal of treating
all defendants equally is frustrated by allowing in victim
impact evidence. The potential
for decisions based on objectionable and discriminatory
motives and the possibility for
arbitrary application of the death penalty are great in
this instance. Moreover, the jury
is forced to focus on the value of the victim's life.
Another problem arises with the
admission of victim impact statements. When the personal
worth of the victim is a factor
to be considered when evaluating whether a defendant should
receive the death penalty, the
potential for discrimination based on race, social
standing, religion, or sexual
orientation arises.55 Obviously, the prosecution does not
argue that the defendant
deserves the death penalty because the victim was white, of
a certain religion, or was
wealthy. Perhaps even more dangerous, these factors are
presented in more subtle ways that
are more difficult to address and then rebut.
Articulateness, often associated with wealth
and status, ends up substituting for factors that are
deemed inappropriate in a sentencing
hearing.56 To support the admission of victim impact
evidence, the Payne Court
argued that since the defendant can offer any relevant
mitigating circumstance to explain
his actions, the State should be able to provide the jury
with similar evidence about the
victim such as information about the victim's
characteristics or a description of the loss
to society and the family.57 In his dissent, Justice
Stevens effectively rejects this
argument by pointing out that an even-handed balance
between the defendant and the State at
a criminal trial is never required.58 The Constitution
protects the criminal defendant
from the potential abuse of power by a more powerful State
by providing certain rights to
the defendant and limiting the power of the State. For
example, the State must prove that
a defendant is guilty beyond a reasonable doubt.59
Moreover, the only acceptable interest
the family has in the sentencing procedure is to insure
that justice is served.60 A
sentencing procedure should have both sides arguing about
the defendant and the
circumstances of the crime not about the victim. This type
of "proceeding is no more
skewed than a funeral centered on the deceased."61 In his
concurring opinion in Payne,
Justice Souter argues that much of the evidence in victim
impact statements is already
introduced in the guilt phase of the trial.62 In order to
follow the Booth mandate, he
claims that a new jury must be empaneled for the sentencing
phase of the trial so that the
guilt phase jury will not use evidence in an improper way.
As Justice Stevens points out
in his dissent, evidence at a trial that is admissible for
one purpose may not be excluded
because it is inadmissible for another purpose simply
because it might prejudice the
jury.63 The effect of the admission of much of the victim
impact evidence at the guilt
phase of the trial is to limit the number of cases in which
the principle in Booth affects
the outcome of the sentencing phase.64 Justice Stewart
offered another compelling reason
for the prohibition of victim impact evidence in capital
sentencing procedures. The
content of the victim impact statement and whether it will
be sufficient to change a
sentence of imprisonment to a sentence of death is not
determined until after the crime has
been committed. As a result, no standard is created to
judge the sufficiency of this type
of evidence, and it cannot be applied in a consistent
manner.65 This violates both Furman
and Gregg by affording a jury unguided discretion in its
determination of whether a certain
defendant deserves the death penalty. An additional
rationale offered in Payne for the
admission of victim impact evidence is that this type of
evidence shows the extent of the
specific harm caused by the defendant, which is a frequent
basis for punishment in criminal
law.66 The Court rejected Booth's focus on the defendant
and his blameworthiness by
stating that two equally blameworthy defendants can cause
differing amounts of harm. The
majority then proceeded to point out that two defendants
who are involved in a robbery and
act with reckless disregard for human life may be guilty of
different crimes if in one of
the robberies a victim dies. Only in the case where a
victim dies can a defendant be put
to death.67 Therefore, although both planned to commit only
robbery, the amount of harm
caused differs, and as a result, one receives a harsher
punishment. This is a basic
proposition, and the problem with this argument is that it
seems to just offer more support
for the Booth proposition. The harm in the argument used by
the majority is the death
committed during the robbery. Likewise, the harm in Booth
and Payne fact situation is also
the death caused. The Court offers no explanation for
deciding that in the Payne case the
definition of harm should suddenly be expanded.68 The jury
is already aware that a murder
has been committed by the defendant and is now attempting
to find the appropriate sentence
for the offender. So it would seem that instead of proving
its own point that victim
impact evidence shows the specific harm caused by a
defendant, the majority is supporting
the Booth proposition that this evidence adds nothing but
instead does inject prejudice and
emotion to a capital sentencing procedure by focusing on
the victim. On a similar note,
"the circumstances of the crime" are the deaths of victims
and "not the continuing
emotional problems or the desire for vengeance of surviving
family members, as compelling
as they may be."69 Families are understandably distraught
by the loss of a family member
and may want to see the defendant get what they feel is his
just deserts. However, while
vengeance is a natural response, it is not an acceptable
justification for punishment in
the criminal law system.70 Although victims' rights
advocates reject the notion that
revenge is a motive for allowing in victim impact evidence,
the content of these statements
runs contrary to this claim. In fact, one element of many
victim impact statements is the
opinion of a victim's family members concerning the crime,
the eh, and the proper
sentence.71 Therefore, victim impact evidence furthers a
illegitimate punishment goal by
causing the jury to respond in an emotional manner and "to
heed the implicit call for
IV. Conclusion
The use of victim impact evidence frustrates current death
penalty jurisprudence and injects arbitrariness into the
sentencing procedure. Since Furman, the Court had focused
on the notion that death is different from all other
punishments and should be treated accordingly. Booth
followed this mandate and found that victim impact evidence
had no place in a capital sentencing hearing.
Unfortunately, the Court decided to shift its position on
the matter in ann effort to give victims and their family a
voice. The shift is so far reaching that now "the cathartic
nature of the testimony in victim impact statements seems
more to serve the psychological and emotional needs of
victims than to aid the jury in selecting the appropriate
sentence."73 With time, the Court will surely realize the
detrimental effects of the Payne doctrine and readopt its
decision in Booth.
1Payne v. Tennessee, 111 S. Ct. 2597, 2614 (1991) (Souter,
J., concurring).
2482 U.S. 496 (1987). 

3Payne, 111 S. Ct. 2597. The Court did not address the
third type of victim impact evidence presented in Booth,
leaving intact the holding that admission of opinions from
the victim's family concerning the defendant, crime, and
the appropriate sentence violates the Eighth Amendment. Id.
at 2611 n.2. 4Furman v. Georgia, 408 U.S. 238 (1972) (per
curiam). 5Id. at 286-291 (Brennan, J., concurring). 6Id. at
256 (Douglas, J., concurring). The Eighth Amendment
provides: "Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments
inflicted." U.S. Const. amend. XIII. 7Furman, 408 U.S. at
313 (White, J., concurring). 8See generally Note,
Discretion and the Constitutionality of the New Death
Penalty Statutes, 87 Harv. L. Rev. 1690, 1710-13 (1974)
(listing and discussing several death penalty statutes).
9Id. at 1700-1709. 10428 U.S. 153 (1976). Three other
companion cases were decided at the same time: Proffitt v.
Florida, 428 U.S. 242 (1976); Jurek v. Texas, 428 U.S. 262
Roberts v. Louisiana, 428 U.S. 325 (1976). The Court in
Proffitt held that "the requirements of Furman are
satisfied when the sentencing authority's discretion is
guided and channeled by requiring examination of specific
factors that argue in favor of or against imposition of the
death penalty, thus eliminating total arbitrariness and
capriciousness in its imposition." 428 U.S. at 258. 11428
U.S. 280 (1976). 12Id. at 304. 13Woodson, 428 U.S. at 304
(Stewart, Powell, and Stevens, JJ., concurring). ("A
process that accords no significance to relevant facets of
the character and record of the individual offender and of
the circumstances of the particular offense excludes from
consideration. . . the possibility of compassionate or
mitigating factors stemming from the diverse frailties of
humankind.") Gregg reiterated the same point by holding
that the death penalty statute should force juries to
"focus on the particularized nature of the crime and the
particularized characteristics of the individual
defendant." 428 U.S. at 206 (Stewart, Powell, and Stevens,
JJ., concurring). 14Woodson, 428 U.S. at 304-05 (Stewart,
Powell, and Stevens, JJ., concurring). 15438 U.S. 586
(1978). 16Id. at 604. 17Id. at 605. The Court pointed out
that a prison sentence may be modified at a later time by a
variety of measures like probation or parole. An executed
death sentence closes the door on the possibility of later
corrective or modifying measures. Id. 18Gary Casimir, Payne
v. Tennessee: Overlooking Capital Sentencing Jurisprudence
and Stare Decisis, 19 J. Crim. & Civ, Confinement 427, 446
(1993). 19Id. 20Booth v. Maryland, 482 U.S. 496, 497-98
(1987). 21Id. See Md. Ann. Code art. 41, § 4-609© (1986).
22Booth, 482 U.S. at 499-500. Both children of the victims
complained of an inability to sleep and fear of being alone
since the murder of their parents. The son felt his parents
had been "butchered like animals" while the daughter felt
that the defendant could "[n]ever be rehabilitated." Id. In
addition to the emotional and personal problems of the
family members, the statement related how much the victims
would be missed and what outstanding citizens they had
been. Id. 23Id. at 501. 24Id. 25Id. at 502. The Court
expressly limited its holding to capital sentencing cases.
Id. at 507 n.10. 26Id. at 502-503. The Court did provide an
exception for information that was directly related to the
circumstances of the crime. Id. at 507 n.10. 27Id. at
504-505. 28Id. at 505. In addition, the Court stated that
the decision to execute someone should not turn on whether
the victim was an outstanding individual instead of an
immoral person. Both types of information do not furnish a
"principled way to distinguish [cases] in which the death
penalty was imposed, from the many cases in which it was
not." Id. at 596 (quoting Godfrey v. Georgia, 446 U.S. 420,
433 (1980)). 29490 U.S. 805 (1989). 30Id. at 812. 31111 S.
Ct. 2597 (1991). 32Id. at 2598. 33Id. at 2600. 34Id. at
2607 (quoting Mills v. Maryland, 486 U.S. 367, 397 (1988)).
35Id. 36Booth v.
Maryland,, 482 U.S. 496 (1987). 37See Gregg v. Georgia, 428
U.S. 153 (1976); Proffitt v.
Florida, 428 U.S. 242 (1976); Furman v. Georgia, 408 U.S.
238 (1972). See notes 18-19. 38See Lockett v. Ohio, 438
U.S. 586, 604 (1978); Woodson v. North Carolina 428 U.S.
280, 304 (1976). 39Booth v. Maryland, 482 U.S. 496, 507
(1986). 40See Casimir, supra note 18, at 449-450 ("[V]ictim
impact statements offer into evidence the pain a family may
feel from the loss of a loved one. A capital defendant
cannot possibly be expected to rebut 'the process' in which
one comes to love another, especially family members.")
41Payne v. Tennessee, 111 S. Ct. 2597, 2630 (1991)
(Stevens, J., dissenting). 42Id. See also Casimir, supra
note 18, at 447 ("Juries are more likely to be drawn to the
emotions of the victim impact statements and ignore any
mitigating evidence offered by the defendant in a humane
attempt to satisfy the legitimate cries of the victim's
family."). 43Vivian Berger, Payne and Suffering - A
Personal Reflection and a Victim-Centered Critique, 20
F.S.U. L. Rev. 21, 50-51 (1992). 44Id. The author pointed
out that a minor extension of this doctrine could mean that
a defendant accused of killing a drug dealer could offer
victim impact evidence as a mitigating factor because the
defendant rid society of an immoral and frightening
individual. Id. 45482 U.S. 496, 505 (1986). 46Id
("Certainly the degree to which a family is willing and
able to express its grief is irrelevant to the decision
whether a defendant, who may merit the death penalty,
should live or die."). See text accompanying note 28(??).
47Godfrey v. Georgia, 446 U.S. 420, 433 (1980). 48Philip A.
Talbert, The Relevance of Victim Impact Statements to the
Criminal Sentencing Decision, 36 UCLA L. Rev. 199, 202-212
(1988). The author describes the wide range of evidence
that can be found in victim impact statements. 49The
majority in Booth was troubled by "the implication that
defendants whose victims were assets to their communities
are more deserving of punishment than those whose victims
are perceived to be less worthy." 482 U.S. at 506 n.8.
50Casimir, supra note 18, at 450-451. 51Payne v. Tennessee,
111 S. Ct. 2597, 2600, 2607 (1991) (emphasis in original).
52Id. at 2631 (Stevens, J., dissenting). 53See Rosemary J.
Loverdi, Victim Impact Evidence - Eighth Amendment Does Not
Erect a Per Se Bar to the Introduction of Victim Impact
Evidence at a Capital Sentencing Hearing, Payne v.
Tennessee, 24 Rutgers L.J. 543, 558 (1993). 54Leading
Cases, 101 Harv. L. Rev. 166 (1987). 55Berger, supra note
__, at 48. 56Id. 57Payne v. Tennessee, 111 S. Ct. 2597,
2606-2607 (1991) (citing Eddings v. Oklahoma, 455 U.S. 104,
114 (1982)). See also id. at 2609 ("It is an affront to the
civilized members of the human race to say that at a
sentencing in a capital case, a parade of witnesses may
praise the background, character , and good deeds of
Defendant. . . without limitation as to relevancy, but
nothing may be said that bears upon the character of, or
the harm imposed, upon the victims."). 58Id. at 2627
(Stevens, J., dissenting). 59Id. See also Berger, supra
note __, for a description of the defendant's protections.
60Leading Cases, supra note __, at 168. 61Berger, supra
note __, at 48. 62Payne v. Tennessee, 111 S. Ct. 2597,
2616-17 (1991) (Souter, J., concurring). 63Id. at 2630
(Stevens, J., concurring). 64Id. 65Payne, 428 U.S. at 2628.
66Payne, 111 S. Ct. at 2604-2605, 2608-2609 ("Booth
deprives the State of the full moral force of its evidence
and may prevent the jury from having before it all the
information necessary to determine the proper punishment
for a first degree murder."). 67Id. 68The Court also fails
to note that sentencing someone to death is far different
from an ordinary sentencing procedure. 69Charlton T.
Howard, III, Booth v. Maryland - Death Knell for the Victim
Impact Statement?, 47 Md. L. Rev. 701, 717 (1988). 70See
Furman v. Georgia, 408 U.S. 238, 343 (1972) (Marshall, J.,
concurring); Leading Cases, supra note __, at 166-167.
71See supra text accompanying note 1. 72Leading Cases,
supra note __, at 167. 73Leading Cases, supra note __, at
168 (citation omitted).

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