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Victim Impact Evidence


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 revenge."72 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.


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