Volume 2, Issue 1, June 1999
ISSN 1096-4886 http://www.westerncriminology.org/Western_Criminology_Review.htm
Evidence in Capital Cases
Joel F. Donahoe
Citation: Donahoe, Joel F. 1999. "The Changing Role of Victim Impact Evidence in Capital Cases." Western Criminology Review 2(1). [Online]. Available: http://www.westerncriminology.org/documents/WCR/v02n1/donahoe/donahoe.html
Among the most significant products of the Victim's Rights Movement over the past decade has been the revival of the use of victim impact evidence--evidence relating to the victim's personal characteristics and the emotional impact of the crime on others--during capital sentencing. With its decision in Payne v. Tennessee (1991), the US Supreme Court not only reversed its own recent precedent holding such evidence to be unconstitutional, it left only a vague and malleable standard for limiting its admissibility. This paper examines the scope of admissible victim impact evidence and its potential for further growth. Procedural guidelines are suggested to help control the risk of prejudice and promote rational sentencing decisions.
The Changing Role of Victim Impact
Evidence in Capital Cases1
In 1976, four years after holding the death penalty unconstitutional under the Eighth Amendment, the United States Supreme Court reauthorized capital punishment with its decision in Gregg v. Georgia (1976). In that opinion, the Court stated that it is "desirable for the jury to have as much information as possible when it makes the sentencing decision." The following year, the same Court, in Gardner v. Florida (1977), asserted that "[i]t is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than emotion." These two policies, read literally, are wholly compatible. In one case, the Court refers to the amount and type of information a jury may hear during capital sentencing. In the other case, the Court simply instructs lower courts to make sure that sentencing juries do not let emotion prejudice their consideration of the facts and circumstances in evidence. In reality, however, the Court's guidelines are not so easily separated. There is a significant tension between the desire for juries to entertain every consideration before deciding whether or not to recommend the death penalty and the need for safeguards to reduce the likelihood that juries will impose a capricious or arbitrary punishment. For instance, even some arguably relevant information could be so specifically geared toward human emotion that its mere presentation to the jury will inflame passions and provoke emotional verdicts.
Where the only potential effect of certain evidence or testimony is to arouse passion, overwhelming its informational or evidentiary purposes, its admissibility during capital sentencing is arguably improper (Gewirtz 1996; Rhodes 1994; Mansur 1993). This tension between reason and emotion is best illustrated by "victim impact" evidence.
"Victim impact" refers to evidence introduced during the penalty phase of a criminal trial that relates to the personal characteristics of the victim and the emotional impact of the crimes on others. Much has been written about the relevance of victim impact evidence to the capital sentencing decision, suggesting a strong nexus between the culpability of capital defendants and the impact of their offenses on victims families and society (Polito 1990; Murphy 1988; Talbert 1988). Likewise, there is also well-documented concern about the tendency of victim impact testimony to distract jurors from making rational, unbiased sentencing decisions and to distract courts from protecting defendants' rights (Mansur 1993; Fahey 1992; Murray 1992; Field 1991; Elias 1986). The question of how much and what kind of victim impact testimony is appropriate is an issue that is inherently subjective and will not be easily resolved in the courtroom and in higher court opinions. One reason for this is that victim impact testimony (and, more importantly, the death penalty itself) struggles in the grip of a delusion--the Supreme Courts apparent belief that death penalty sentences can be based on reason rather than emotion. Human beings never stand in an emotional vacuum.
To separate knowing from feeling is possible conceptually, but to project this conceptual distinction onto concrete experience is to commit what Whitehead calls the fallacy of misplaced concreteness--that is, it involves mistaking an abstraction of thought for concrete reality. The truth is that all items encountered in experience are suffused with emotional color (Rhinelander 1973:48).
For all of its rational trappings, the US Supreme Courts own death penalty opinion in Gregg v. Georgia (1976) relies on emotion-based rationales: retribution and contemporary standards of decency. Thus the issue for victim impact testimony is not whether it can be purged of its unavoidably emotional content. The issue instead is the acceptable depth and breadth of emotional content we can reasonably assume will not overpower the jurors.
In this paper, I do not endeavor to set forth any conclusions as to the constitutionality or propriety of victim impact evidence per se. Rather, I intend to clarify the dangerous potential of victim impact evidence to intrude upon defendants' rights. I will also discuss the unfairness that can result if courts continue to loosely interpret the evidentiary standards for victim impact testimony, as set forth by the US Supreme Court.
To appreciate the potential for further judicial expansion of victim impact evidence at sentencing, we need to first understand its origins and the basic public policy arguments offered in support of its viability. Thus, I begin with a brief overview of victim impact evidence as a product of the Victims Rights Movement (VRM), so as to clarify the origins and future direction of victim impact evidence. Next, I discuss the constitutionality of victim impact evidence as interpreted and examined by the US Supreme Court. In particular, I analyze the Courts decision in Payne v. Tennessee (1991) to resurrect the use of victim impact evidence at sentencing without establishing clear criteria for its admissibility. I then describe how the Courts vague standard has been (or could have been) applied by lower courts. Although the vast majority of capital cases arise in state courts, I have chosen to focus on the interpretation and use of victim impact evidence within the federal court system in light of several recent federal cases. These cases not only illustrate the confusion that has resulted from this vague standard, but also epitomize the potential for victim impact evidence to expand in scope and to further impair the ability of jurors to make rational sentencing decisions. Finally, I suggest some limitations which, if adopted by Congress or the courts, would protect against boundless expansion of this already controversial evidentiary trend.
THE VICTIM'S RIGHTS MOVEMENT (VRM) AND THE LAW
As noted by Justice Scalia in his dissent in Booth v. Maryland (1987:520), "[r]ecent years have seen an outpouring of popular concern for what has become known as 'victim's rights.'" This widespread concern, universally referred to as the Victim's Rights Movement (VRM), actually is not as organized or focused as other political crusades historically recognized as "movements," such as the struggles for civil rights and women's suffrage (Karman 1992; Black 1994). Rather, the phenomenon is better described as a continuing shift in conventional wisdom in reaction to the landmark decisions of the Warren Court that extended constitutional rights to defendants, suspects, and prisoners.2 In this section, I will briefly describe the roots, motivations, and rationales behind the VRM and its role in the reemergence and development of victim impact evidence.
Since the late 1970's, the public has expressed an increasing dissatisfaction with our justice system and its apparently unequal treatment of victims when compared to the perceived advantages afforded the criminally accused (Eikenberry 1989; Rhodes 1994; Black 1994). Historically, the role of the victim of a crime in a criminal procedure had been confined to reporting the crime and perhaps testifying to the facts of the offense (Karman 1992; Stark and Goldstein 1985; Reiff 1979). Indeed, according to the US Supreme Court, in Linda R.S. v. Richard D. (1973), the victim had no right to participate in the decision of whether to reduce, dismiss, plea-bargain, or even bring criminal charges in the first place. Nor did the victim have any right to be informed about any ensuing process (Polito 1990). The criminal justice system thus restricted the victim to the sidelines of the legal arena. In so doing, it often caused the victim to feel powerless, abandoned, or even further victimized (Black 1994; Fahey 1992; Polito 1990). As violent crime in the United States rose significantly in the early 1980's, the public's disappointment in the system, combined with increased public anxiety over crime, drove many to take initiative (Mansur 1993; Karman 1992). Individuals across the country joined together to form consciousness-raising groups to further public education, outreach, research and lobbying (Long 1995; Fahey 1992). This widespread private action soon emerged as a "loosely constituted, socially diverse" social movement (Karman 1992:158) with the following general purposes and characteristics:
In short, the newborn VRM demanded formal rights within the system showing "respect for the subjective needs and feelings of victims and their need to tell their own stories" (Anderson 1997:399-400).
The nation soon responded. In 1982, the Reagan Administration published a report entitled the President's Task Force on Victims of Crime. This report discusses at length the concerns of crime victims and sets forth sixty-eight recommendations designed to promote equity in the criminal justice system from the victim's perspective. These include increased victim confidentiality, counseling for victims and their families, victim employee assistance, and financial assistance programs. The recommendations not only advocated new affirmative procedural rights for victims, but also suggested the removal of established procedural mechanisms such as hearsay rules at preliminary hearings, the existing bail system, judicial discretion at sentencing, the exclusionary rule, and parole. One of the suggested changes was to require impact statements from victims of violent crime at sentencing. 3 The White House frequently issued similar Presidential Proclamations in the years that followed. There was also a hundred percent increase in the number of public victim advocacy services between 1980 and 1986 (Mansur 1993).
Government recognition and support of the VRM was not limited to the executive branch. In Morris v. Slappy (1983), then Chief Justice Burger wrote that "[i]n the administration of justice, courts may not ignore the concerns of victims." Four years later, Justice Kennedy asserted that, "as a simple matter of distributive justice, a decent and compassionate society should recognize the plight of its victims and design its criminal system to alleviate their pain, not increase it" (Nicholson 1992). By 1991, with its decision in Payne v. Tennessee (1991), a majority of the Court showed both its desire to support victim's rights and its willingness to implement victim's rights rhetoric as public policy in support of its holdings.
Congress contributed in two ways. First, with the Federal Victims of Crime Act of 1984 and the Justice Assistance Act of 1984, Congress created funding for victim advocacy services that had previously relied on volunteers. Second, Congress produced or altered a number of criminal statutes to provide victims with an active role in criminal adjudications, such as informing victims of the time and place of criminal proceedings, directing the sentencer to consider any need for restitution, and allowing for victim influence in decisions regarding parole. Most noteworthy is the legislature's passage of the Victim and Witness Protection Act of 1982, which amended the Federal Rules of Criminal Procedure to include victim impact evidence in the sentencing process. 4
The world responded as well. The VRM obtained international recognition in 1986 when the United Nations (UN) General Assembly adopted the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. Therein, the UN declared that crime victims should have "access to the mechanisms of justice and to prompt redress ... for the harm they have suffered," that "judicial and administrative mechanisms should ... enable victims to obtain redress through formal or informal procedures," and "the views and concerns of victims [should] be presented and considered at appropriate stages of the proceedings ...."
The popular appeal of the motivations and concerns behind the VRM soon caught the attention of politicians and the media. As Rhodes (1994:20) noted, "The politics of America at the federal, state, and local levels centered on crime, and the television and news media made sure that America would know that crime was our primary concern." Elias (1986:43-44) research shows that sensationalist media coverage of crime results in a fear of crime in society that is disproportionate to actual crime levels. The media's constant coverage of crime and its victims requires that those seeking political office or government appointment address criminal issues, and, in most cases, show their support for formal consideration of victims' interests. Likewise, the nation's political concentration on crime issues has ensured the media's continued focus on crimes and the justice system (Elias 1986). These two forces have thus combined to increase the nation's interest in victims issues and further reforms (Rhodes 1994; Fahey 1992; Elias 1986).
Indeed, the influence of the VRM may not have peaked. In 1997, President Clinton signed the Victim Rights Clarification Act of 1997, giving victims the right not to be excluded from their accused's trial even if they may give victim impact testimony during the penalty phase. 5 Also in 1997, members of Congress proposed a Victim's Rights Amendment to the Constitution. The proposed amendment enumerated twelve procedural rights belonging to crime victims, including the right to "be heard and to submit a statement" during sentencing proceedings.
Given this social climate, people are likely to continue pressuring the criminal justice system to create and expand victim's rights, such as victim impact evidence at capital sentencing. It is just as likely that the government will continue to respond to organized public pressure (Anderson 1997).
THE FALL AND RISE OF VICTIM IMPACT EVIDENCE AT CAPITAL SENTENCING
Booth v. Maryland
By 1988, forty-four states, along with the federal government, allowed victim impact evidence during capital sentencing (Mansur 1993). However, Booth v. Maryland (1987) was the first time the US Supreme Court considered its admissibility. John Booth was convicted in a Maryland Circuit Court of murder for tying up a married couple and stabbing them to death. Pursuant to Maryland law,6 the State Division of Parole and Probation prepared a Victim Impact Statement (VIS) detailing the effect of Booth's crimes on the victims' families. The probation office based its report on interviews with the victims' son, daughter, son-in-law, and granddaughter. The VIS contained many of their comments emphasizing the victims' outstanding personal qualities and how deeply the victims would be missed. The VIS also described the emotional and personal problems they had encountered as a result of the crimes. For example, the son stated that he suffered from insomnia and depression, was fearful for the first time in his life, and that his parents "were butchered like animals." The daughter stated that she had become withdrawn and distrustful, could no longer watch violent movies or look at kitchen knives without being reminded of her parents murders, and that Booth could never be rehabilitated. The granddaughter described the murder's ruinous effect on a close family members wedding shortly after the victims bodies were found, and stated that several months of counseling had not helped her. The probation office concluded the VIS by stating that the family members would most likely never recover from their emotional devastation.
The prosecutor read the VIS to the jury during the penalty phase over defense counsel's objection, and Booth was sentenced to death. The Maryland appeals court rejected Booth's claim that the VIS improperly inserted an arbitrary factor into the jury's sentencing decision. It held that the VIS furthered an important interest by informing the jury of the total amount of harm caused by the crimes, and did not cause the jurors to impose the death penalty under the influence of passion or prejudice.
In a 5-4 decision, the US Supreme Court reversed, holding that the Eighth Amendment prohibits capital sentencing juries from considering victim impact evidence. Justice Powell, writing for the majority, maintained that capital sentencing juries must make an "individualized determination" and consider factors that are relevant to the defendant's "personal responsibility and moral guilt." According to the Booth Court, victim impact statements are not appropriate in the context of capital sentencing because a "mini-trial" on the character of the victim distracts jurors from its constitutional duty to focus on the defendant as a "uniquely individual human being." In Powell's words, allowing a capital sentencing jury to consider the "emotionally charged" opinions of grieving family members "can serve no other purpose than to inflame the jury and divert it from deciding the case based on the relevant evidence concerning the crime and the defendant." The Court also expressed its concern that using victim impact information in a formalized setting unfairly legitimizes the views of the victims family.
In rejecting the state's argument that victim impact statements are probative evidence of the foreseeable consequences of a defendant's crime and are thus relevant to his criminal culpability, the Court stated:
[A] defendant's level of culpability depends not on fortuitous circumstances such as the composition of his victim's family, but on circumstances over which he has control. [T]he fact that victim's family is irredeemably bereaved can be attributable to no act of will of the defendant other than his commission of a homicide in the first place. Such bereavement has no relationship to the proper purposes of sentencing....
The Court reasoned that since the harm caused by a defendant is not related to the defendant's moral blameworthiness, punishment based on the harm caused rather than the crime itself is inherently arbitrary. The Court thus concluded that admission of victim impact evidence creates an impermissible risk that the death penalty may be applied in an "arbitrary and capricious" fashion.
Justices White and Scalia filed separate dissenting opinions. White agreed with the state of Maryland that the harm suffered by victims' families is relevant to the sentencing decision, and argued that victim impact evidence should not be constitutionally barred, asserting that "[t]here is nothing aberrant in a jurors inclination to hold a murderer accountable not only for his internal disposition in committing the crime but also for the full extent of the harm he has caused." Scalia pointed to the disparity between the evidentiary resources available to a defendant during sentencing as opposed to the few afforded to his victims, and deemed it unjust that a capital defendant may introduce substantial witness testimony to mitigate his blameworthiness, while his victims are unable to testify to the harm they have suffered.
South Carolina v. Gathers
Despite the Booth Court's clear language that "the Eighth Amendment prohibits a capital sentencing jury from considering victim impact evidence," some courts (notably, the California Court of Appeals in People v. Siripongs  and People v. Rich ), interpreted Booth as restricting only actual evidence and testimony, and not the reference to victim impact by the prosecutor. In response to the confusion in some courts regarding the scope and application of Booth, the US Supreme Court revisited the issue of victim impact evidence two years later in South Carolina v. Gathers (1989).
In Gathers, a South Carolina jury convicted Demetrius Gathers of murder for beating and stabbing a mentally handicapped man to death. During the penalty phase, the prosecutor commented extensively on the character of the victim. In particular, the prosecutor concentrated on the victim's devotion to Christianity and to the community.7 To support his portrayal of the victim's character, the prosecutor frequently referred to articles found on the victim's person at the crime scene, including several religious items and a voter registration card. The jury imposed the death sentence. The Supreme Court of South Carolina reversed Gathers' sentence on the grounds that the prosecution's comments were unnecessary to enable the jury to evaluate the circumstances of the crime, and, furthermore, that the remarks suggested to the jury that Gathers deserved the death penalty because his victim was a religious man and a registered voter.
In another 5-4 opinion, the U S Supreme Court affirmed. Writing for the majority, Justice Brennan reiterated the Court's instruction that a capital defendant's punishment be based on his personal responsibility and moral guilt, and concluded that inferences to the victim's character were not relevant to a circumstance of the crime. The Court found the prosecution's statements to be substantively indistinguishable from the victim impact evidence in Booth; the fact that the statements in Gathers were delivered by the prosecutor rather than the victims' survivors made no meaningful difference. The Court thus relied exclusively on its rationale in Booth in holding that the Eighth Amendment precluded the prosecution's comments regarding the attributes of the victim during the penalty phase. Indeed, in his majority opinion, Brennan quoted Booth in reminding the state courts that victim impact evidence introduces factors that are "wholly unrelated to the blameworthiness of a particular defendant," and "could result in imposing the death sentence because of factors about which the defendant was unaware, and that were irrelevant to the decision to kill."
Justices O'Connor and Scalia filed separate dissents. O'Connor argued that Booth should be narrowly construed so as to not impose "a rigid Eighth Amendment rule [which would] eliminate virtually all consideration of the victim at the penalty phase." She found nothing in the Eighth Amendment that prohibits the state from "conveying to the jury a sense of the unique human being whose life the defendant has taken." O'Connor further argued that the degree of harm caused was indeed one factor in determining a defendant's personal culpability, citing Tison v. Arizona (1987), in which the Court upheld defendants death sentences for their mere participation in a jailbreak that resulted in a killing. Scalia wrote that Booth should be overruled because it unconstitutionally restricted state and federal criminal procedures. He maintained that since the restrictions imposed by Booth are not firmly rooted in the Constitution, society, common law, or present laws, the harm caused by a capital defendant should be used to determine his criminal responsibility.
Even after Gathers completely affirmed the Supreme Court's decree in Booth that victim-related information had no role in capital sentencing, lower courts remained reluctant to exclude victim impact evidence during the penalty phase. State appellate courts in Ohio, Indiana and Virginia attempted to distinguish Booth in cases where victim impact testimony was heard by a judge rather than a jury.8 Courts in California, Illinois, Mississippi and Montana allowed victim testimony where such evidence was comparatively mild.9 Moreover, the California Court of Appeals allowed victim character evidence at sentencing when such evidence was directly related to the circumstances of the crime.10 The Idaho Court of Appeals simply let Booth violations stand, applying a harmless error analysis.11 In sum, too many courts manipulated, ignored, or even openly defied the US Supreme Court's constitutional mandate regarding victim impact information (Fahey 1992).
Payne v. Tennessee: Minority to Majority
By 1991, Justices Powell and Brennan had retired and been replaced by Justices Kennedy and Souter. The change in court membership brought with it a change in ideology regarding victims' rights. The ideology of the minority in Booth and Gathers was now embraced by the majority (Fahey 1992). Armed with its new personnel, the Court again addressed the constitutionality of victim impact evidence in Payne v. Tennessee (1991).
On June 27, 1987, Pervis Tyrone Payne had spent the morning and early afternoon drinking malt liquor and injecting cocaine at his girlfriend's apartment, where he was awaiting her return from a trip to Arkansas. Around 3 p.m., Payne entered an apartment across the hall and began making sexual advances toward its resident, Charisse Christopher. Payne became violent when Christopher resisted. A neighbor called the police after hearing "horribly loud" and "blood-curdling" screaming coming from Christopher's apartment. When police arrived, they encountered Payne fleeing the scene, drenched in blood. Payne struck one officer and escaped on foot, only to be arrested later that day.
Police entered Christopher's apartment to find the walls and floor covered with blood. Christopher and her two young children, three-year old Nicholas and two-year old Lacie Jo, were lying on the kitchen floor. Christopher had died after being stabbed forty-one times with a butcher knife. Lacie had died from stab wounds to her chest, abdomen, back, and head. After undergoing seven hours of surgery and a blood transfusion, Nicholas managed to survive, despite having suffered several stab wounds that completely penetrated his body.
A Tennessee jury ultimately convicted Payne in county court of two counts of murder and one count of assault with intent to murder. During the penalty phase, the prosecution presented the testimony of Christopher's mother. She described the effect of the murders on Nicholas as follows:
He cries for his mom. He doesn't seem to understand why she doesn't come home. And he cries for his sister Lacie. He comes to me many times during the week and asks me, Grandmama, do you miss my Lacie. And I tell him yes. He says, I'm worried about my Lacie.
The prosecutor also commented on the impact of the crimes on Nicholas:
But we do know that Nicholas was alive. And Nicholas was in the same room. Nicholas was still conscious. His eyes were open. He responded to paramedics. He was able to follow their directions. He was able to hold his intestines in as he was carried to the ambulance. So he knew what happened to his mother and sister.
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There is obviously nothing you can do for Charisse and Lacie Jo. But there is something you can do for Nicholas. Somewhere down the road Nicholas is going to grow up, hopefully.... And he is going to know what happened to his baby sister and his mother. He is going to want to know what type of justice was done.
During the state's rebuttal to Payne's closing argument, the prosecutor further stated:
No one will ever know about Lacie Jo because she never had the chance to grow up. Her life was taken from her at the age of two years old. So, no there won't be a high school principal to talk about Lacie Jo Christopher, and there won't be anyone to take her to the high school prom. And there won't be anybody there -- there won't be her mother there or Nicholas' mother there to kiss them at night. His mother will never kiss him good night or pat him as he goes off to bed, or hold him and sing him a lullaby.
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[Payne's attorney] doesn't want you to think about the people who love Charisse Christopher, her mother and daddy who loved her. The people who loved little Lacie Jo, the grandparents who are still here. The brother who mourns for her every single day and wants to know where his best little playmate is. He doesn't have anybody to watch cartoons with him, a little one.
The jury sentenced Payne to death, and the Supreme Court of Tennessee affirmed. That court rejected Payne's argument that the grandmother's testimony and the prosecutor's remarks violated the Eighth Amendment under Booth for two reasons. First, the court held that they were "surely relevant" to Payne's personal responsibility and blameworthiness. Second, the court found that any violation of Payne's rights under Booth "did not create a constitutionally unacceptable risk of an arbitrary imposition of the death penalty and was harmless beyond a reasonable doubt."
In a 6-3 opinion, the US Supreme Court affirmed. Chief Justice Rehnquist began the majority opinion by identifying the two premises underlying Booth and Gathers: (1) That evidence referring to a defendant's victim or to the harm caused by his crime on the victim's family is unrelated to the defendant's blameworthiness, and (2) that only evidence of blameworthiness is relevant to the decision of whether or not to impose the death penalty. Thereafter, Rehnquist proceeded to indicate that these were no longer controlling issues. Rather, the Court found it sufficient to assert that an evaluation of the harm caused is significant in deciding the proper punishment. Citing Scalia's dissent in Booth, the Court used the following example to illustrate how the law often treats two defendants differently where their similar illegal acts result in different levels of harm:
If a bank robber aims his gun at a guard, pulls the trigger, and kills his target, he may be put to death. If the gun unexpectedly misfires, he may not. His moral guilt is identical, but his responsibility in the former is greater.
Rehnquist quoted 18th century criminologist Cesare Beccaria and his belief that "we have seen that the true measure of crimes is the injury done to society," and that "the punishment should fit the crime." The Court therefore held that the amount of harm caused by a capital defendant is relevant to the sentencing decision, and labeled victim impact evidence as "simply another form or method for informing the sentencing authority about the specific harm caused by the crime in question."
The Court next addressed what it perceived to be an unfair imbalance in the capital sentencing process between the capital defendant and his victims. Specifically, the Court criticized a capital trial process where a defendant may introduce virtually any mitigating evidence, but the state is precluded from offering either a "quick glimpse of the life" the defendant "chose to extinguish," or from demonstrating the loss to the victim's family and to society. Payne had introduced four witnesses to testify that his crimes were inconsistent with his character. Relying on this interest in a balanced process, the Court reasoned that since Payne had introduced mitigating character evidence, the prosecution could properly introduce evidence of the victims' good character and of the impact of Payne's crimes on the victims' family (Meek 1992; Bendor 1992).
As for the Booth Court's concern that allowing victim related information at capital sentencing risks creating a distracting "mini-trial" about the victim, the Court relied on an assumption that much of the relevant victim impact information would already be in evidence from the guilt phase of the trial. The Court likewise dismissed the Booth Court's argument that victim impact evidence permits a jury to impose more severe punishment when the victim was a greater asset to society, as opposed to when the victim was viewed as less valuable. Chief Justice Rehnquist simply proclaimed that victim impact evidence is not offered to encourage such comparative judgments. Rather, it is meant to illuminate each victim's uniqueness as an individual human being, in order for the jury to determine the loss to the community.
According to the Payne Court, the Eighth Amendment imposes only two limitations on the capital sentencing process. First, it establishes a threshold below which the death penalty may not be imposed, namely, where such punishment would be disproportionate to the crime. Second, any relevant mitigating factor must be included in considering a sentence less than death. After noting its history of deferring to the states' chosen methods for administering criminal justice within those basic guidelines, and stressing the importance of allowing states their traditional latitude to devise procedures and remedies to meet felt needs, the Court held that "the Eighth Amendment erects no per se bar" to the admission of victim impact evidence. The Court then announced due process as the new boundary of admissibility, holding that if such evidence is prejudicial to the point that it renders a capital defendant's trial fundamentally unfair, the Fourteenth Amendment Due Process Clause provides a basis for its exclusion.
Payne therefore explicitly overturned Booth and Gathers. The Court qualified its departure from such recent precedent with two observations. First, the Court suggested that it was appropriate to overrule those cases because they were "decided by the narrowest of margins, over spirited dissents." Second, the Court noted that the Booth rule had "defied consistent application by the lower courts."
Justices O'Connor, Scalia, and Souter each filed a separate concurrence. O'Connor explained that the majority's holding did not require or even advise the states to admit victim impact at sentencing. According to OConnor, Payne merely recognized that such evidence is potentially relevant, and does not set forth a "prophylactic, constitutionally based rule" absolutely barring its admissibility. Scalia wrote separately to challenge the Booth rationale that the "unanticipated consequences" of a capital crime should not influence the sentencing decision. Scalia found that this reasoning conflicted with the public sense of justice as expressed in the VRM, thereby jeopardizing public confidence in the judiciary. Souter asserted that every murderer knows his victim probably has close survivors that will suffer harms and deprivations from the victim's death. He concluded that the capital defendant should be presumed to have considered the probable impact on society when he decided to kill. Souter therefore argued that victim impact testimony should indeed be considered relevant and admissible during capital sentencing under Booth. Souter supported overruling Booth, however, because it sets an unworkable standard for defining what constitutes proper penalty phase evidence. Specifically, he contended that since in most cases, most of the information relating to victim impact evidence will have already been presented during the guilt phase, a separate sentencing jury would have to be empanelled in order to avoid jury consideration of facts irrelevant to the defendants decision to kill.
In dissent, Justice Marshall expressed his firm agreement with the Booth Court that victim impact evidence introduces a sentencing factor unrelated to blameworthiness. Furthermore, Marshall argued,
the probative value of [victim impact] evidence is always outweighed by its prejudicial effect because of its inherent capacity to draw the jury's attention away from the character of the defendant and the circumstances of the crime to such illicit considerations as the eloquence with which family members express their grief and the status of the victim in the community.
Marshall bitterly accused the majority of relying on power rather than reason in choosing to overrule a four-year-old precedent. Marshall observed that "[n]either the law nor the facts supporting Booth and Gathers underwent any change in [those] four years," rather, "[o]nly the personnel of this Court did." Marshalls dissent in Payne was his last opinion before resigning from the court.
Justice Stevens also dissented. Like Marshall, Stevens disapproved of the Court's brazen disregard for precedent, arguing that prior cases provide no support for the conclusion that a prosecutor may introduce penalty phase evidence that is irrelevant to the defendant's guilt or moral culpability. In Stevens view, such evidence "serves no purpose other than to encourage jurors to decide in favor of death rather than life on the basis of their emotions rather than their reason." Justice Stevens further pointed out the majority's incorrect premise that criminal prosecutions require an "even-handed balance" between victims and defendants. According to Stevens, the Constitution, the rules of evidence, and the burden of proof are meant to protect defendants against the "disproportionately powerful state."
In short, the dissents in Payne were no less spirited than the dissents in Booth and Gathers which Chief Justice Rehnquist viewed as one justification for overruling those cases.
United States v. McVeigh
Although the Payne Court did set forth a mechanism by which a court may exclude victim impact evidence at sentencing, namely the Fourteenth Amendment Due Process Clause, questions about the scope of allowable victim testimony under Payne remain unanswered. For example, the Court gave no guidelines as to how many impact witnesses may testify without rendering a sentencing proceeding unfair. Moreover, the Court did not explicitly state who may be considered a "victim" for the purposes of impact testimony. In other words, the Court did not clarify whether the opportunity to give impact testimony at capital sentencing is restricted to family members of the deceased, or whether the term "victim" may encompass a larger group of persons indirectly affected by the crime. United States v. McVeigh put these questions squarely before a United States District Court.
On April 19, 1995, a two-ton bomb detonated just outside the Alfred P. Murrah Federal Building in Oklahoma City. The bomb, constructed with 4,800 pounds of ammonium nitrate and fuel oil and encased in a Ryder van, was parked just below the second-floor day-care center. The explosion killed 168 people, including more than a dozen young children. In one of the most highly publicized trials in history, Timothy McVeigh was tried and convicted in Colorado federal court of eleven counts of capital murder for the bombing. Prior to the penalty phase, the government notified the court of its intention to introduce over forty witnesses to testify about the emotional impact of the experience, including four or five individuals who helped with the rescue effort.
McVeigh's counsel challenged the admissibility of any impact testimony from rescue workers, saying:
[I]f people who are indirectly affected, even grievously, by an incident, can be allowed to give victim impact testimony about their own condition, where does the line get drawn? For example, ... there has been an epidemiological study done in Oklahoma City to assess the effects of this on the entire population in the city. 12
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[M]y concern is that there is only a difference in degree and not between ... rescue workers who were impacted directly and people who were several miles away and suffered traumatic effects over the next several months.
The government countered that, although they would be putting the rescue workers forward as victims, there was no risk of prejudice. According to the governments disingenuous statement, its penalty phase evidence would merely present to the jury "an objective story regarding a brief [testimonial] snapshot and understanding of the identity of the victims and their background." The government argued that its proffered testimony was justified in that it would "certainly be far less extensive about the background of any one individual or even all the individuals that we offer combined than the defendant will present about himself."
Finding the subject matter "obviously admissible," the Honorable Richard P. Matsch decided to let the rescue workers testify as victims of the bombing. Judge Matsch qualified his decision with the following observation:
Payne v. Tennesee involved ... cautions given by every justice who wrote; and almost every justice wrote in that case. And there simply is no clear guidance as to where the line between appropriate, particularly victim impact testimony ends and an appeal to passion, the human reactions, emotive reactions or revenge, rage, empathy -- all of those things -- begin. So I know that these rulings are not going to be consistent with the views of many.
Nevertheless, Matsch held that "the experience of those who were called to the scene qualified them as victims within the concept here of victim impact testimony."
The government ultimately called thirty-eight victim witnesses to the stand during the penalty phase. Four of these witnesses were Oklahoma City police officers who assisted in the rescue effort immediately following the blast. Sergeant Alan Prokop gave a detailed description of his experience locating and removing the injured and dead from the rubble. Of the three adults and three children Prokop excavated, only one of the adults and one of the children were alive. Prokop's testimony included the following narrative:
As I moved to the area around the elevator shaft, I observed a hand and arm to be coming out of the debris and waving back and forth. I walked over and attempted to uncover the body connected to the hand. It appeared to be a female. Her hand was warm. She was clutching my hand.... I held it as it squeezed, and I could hear muffled moans from behind the concrete.
* * *
I could hear water running in the area, and I screamed to the other rescuers that we had to get the water turned off; that I felt she was drowning. The rescue worker behind the slab hollered that that wasn't water, Alan, it's blood; and he held up his hand. [I stayed with the lady] [a]pproximately three more minutes, and then her hand got very still and started to get cold. I checked for a pulse and found none. I did not control myself very well ... and I didn't feel like I could stay there anymore, so I moved to the day-care area and began to work there.
Prokop next described being handed a baby, and noticing that the baby had a brick sticking out of his forehead. Finally, Prokop stated that since the bombing he had been plagued by nightmares.
Inspector Sergeant Jerry Flowers testified that he rushed to the scene after hearing and feeling the explosion from six miles away. Flowers explained that he attempted to locate survivors by listening for voices screaming for help. He stated that, at one point, he heard a faint female voice buried under rocks, sheetrock, ceiling tiles, and cement blocks, but the voice faded away before he was able to locate the victim. In all, Flowers testified to removing the lifeless bodies of one woman and six children. His descriptions of this experience included the following excerpts:
I remember looking at this little baby. And he was a little boy, about five or six years old, and he had a teddy bear on his shirt. And as I looked at this child, his face was gone....
* * *
I went to an area and started uncovering stuff, started digging, like everyone was doing. And I uncovered a little baby's foot with a pink sock on.... Everybody together rushed to this area, and we together started savagely uncovering this child; and it was a little girl. She was a little baby girl, six months to a year old. Best I remember, a little pink dress on. And just as we got her uncovered -- she was dead.
Flowers concluded his testimony by explaining that, after leaving the site, still covered in dust and dirt and blood, he went to a close friend's home to tell his friend that his wife who worked in the building had not been found. After being excused as a witness, Flowers remained seated and stared intently at McVeigh until the court forcefully instructed him to step down from the stand.
Officer Eric Thompson testified that he heard the explosion from the nearby police station, and upon identifying its location, drove to the building. Thompson spoke of finding a man trapped in the debris, badly wounded but conscious and coherent. Thompson's description included in part:
The man was conscious, he was coherent; but he was very dazed. He had a glassy look in his eyes.
* * *
He had several small cuts from, I guess, flying debris. His shirt was torn and tattered, and attempts were made when he was leaning back to pull him from the debris. His legs were completely pinned.
* * *
I noticed that the gentleman had received a severe head wound.... I noticed this due to the amount of blood and part of his scalp was loose on the crown of his head.
* * *
We worked with him for a while ... and were unable to free him. During this time he was still conscious. He would still moan or grunt, he would still try to hold himself up to an extent. And finally, he just -- he exhaled and he went limp on us. And I believe that at that moment he expired. He passed away.
Officer Don Browning testified that he arrived at the building with his dog the day after the bombing. Browning recalled being approached by a man and a little girl in front of the building, and offered the following narrative:
The little girl was wearing a guardian angel pin on her blouse. She was probably five or six years old.
* * *
[S]he was saying that the angel was a pin that she was wearing for her friends.... And we all gave her a hug and told her how glad we were that she was okay. And she asked me if she could pet my dog, and I did tell her that she could. And she grabbed [the dog] around his neck and hugged him closely and stepped back and still while holding the scruff of his neck looked him straight in the eyes and told him, "Mr. Police Dog, will you find my friends?"
Browning further stated that he found three bodies in the debris, but had to leave them due to the instability of the area. He then described removing those bodies nine days later after the building was imploded. Finally, Browning testified that the bombing had caused him to suffer emotional and psychological injury in the form of recurring nightmares in which he hears the sound of children crying but is unable to save them.
The jury unanimously recommended that McVeigh be executed. In his motion for a new trial, McVeigh's counsel argued that the volume and quality of the victim impact evidence admitted during the penalty phase precluded the jury from making a reasoned sentencing decision based on the evidence and the law. According to the defense, the rescue workers' testimony, in particular, was "graphic and gruesome" and "could not help but inflame the jury." Moreover, defense counsel pointed out he was effectively precluded from objecting to this evidence, as such objections would be viewed by the jury as highly insensitive and would result in further prejudice to the defendant. Indeed, at least three jurors cried during the government's penalty phase evidence, and three jurors glared at McVeigh as the court sentenced him to die by lethal injection (Annin and Morganthanau 1997).
Nevertheless, the result in McVeigh is seen by many as a breath of fresh judicial air in an era of disgust with a legal system that acquitted O.J. Simpson and the Rodney King policemen. 13 Whether McVeigh is successful on appeal remains to be seen, but considering the popularity of the district court outcome (church bells rang in Oklahoma City as word of the death sentence spread [Annin and Morganthanau 1997]), it is unlikely that an appellate court will vacate his sentence.
As it stands, United States v. McVeigh (1997) may significantly expand the pool of individuals who qualify as victims for the purpose of contributing admissible impact information at sentencing. The Payne Court, it seems, only contemplated "direct victims," or those who suffer physical injury as a result of an unlawful act, and "secondary victims," or relatives of homicide victims who experience emotional distress or a change in personal relationships, as viable impact witnesses (Long 1995). By allowing rescue workers, unrelated to those injured and killed, to testify as to the emotional impact of the bombing on themselves and others, the McVeigh court added "indirect victims" to the list. Indirect victims have been described as individuals whose acute awareness of crime causes them fear and apprehension, adversely affecting their quality of life (Long 1995). Some indirect victims can become so traumatized by crime that they develop health problems, both physical and emotional (Long 1995; Elias 1986).
It should be noted that the McVeigh case is a district court opinion and is not binding authority beyond the District of Colorado. Although there is little doubt it would be upheld at Supreme Court level, until then it is quite limited in terms of precedent. In terms of influence, however, United States v. McVeigh should not be underestimated. Judge Matschs decision to augment the scope of permissible victim participation to encompass indirect victims may be quite consequential in future capital cases, as his broadening of the definition of "victim" provides an example for other courts to follow in seeking to expand the scope of victim impact evidence. The critical aspect of Matsch's ruling is that it highlighted Payne's lack of guidelines for lower courts to follow in deciding whether to exclude, limit, or admit victim impact evidence - and by whom - during capital sentencing. Accordingly, McVeigh demonstrates the malleability of victim impact standards as well as the potential for further extension of the boundaries surrounding admissible penalty phase evidence.
VICTIM IMPACT TESTIMONY FROM VICTIMS OF A DEFENDANT'S UNCHARGED CRIME?
With its decision in Payne v. Tennesse (1991), the US Supreme Court not only endorsed the use of victim impact evidence at sentencing. It also gave the scope of admissible impact evidence room to grow. United States v. McVeigh (1997) shows at least three areas for potential growth, i.e., who may be considered a "victim" for the purpose of assessing relevant impact, the number of allowable victim impact witnesses, and the extent to which explicit and graphic details may be admitted under the guise of gaining an understanding of the identity of victims, their personal characteristics, and their background. A fourth area for potential growth is whether a victim of a defendants prior unadjudicated crime can give impact testimony during the defendants sentencing hearing for a crime that is subsequently charged. The governments evidence in United States v. Kaczynski serves as a convenient reference for this inquiry.
The Factual Background of United States v. Kaczynski
According to the U S Government, Theodore Kaczynski carried out sixteen bombings throughout the country between 1978 and 1995, killing three people and injuring twenty-nine more. 14 Due to statutes of limitations and venue issues, the government only charged Kaczynski with four of the bombings, namely, the devices that killed Hugh Scrutton and Gilbert Murray, as well as the devices that maimed Dr. Charles Epstein and Dr. David Galernter. In its Notice of Intent to Seek the Death Penalty, the government listed "victim impact" as an aggravating factor justifying capital punishment.15
After the jury was empanelled and the trial was set to begin, Kaczynski pleaded guilty, admitting to all sixteen bombings in return for a life sentence. Therefore, speculation about the government's penalty phase evidence is admittedly moot. However, with so many victims of Kaczynski's uncharged offenses at its disposal, the government might certainly have been tempted to offer impact testimony from such individuals. Indeed, during the formal sentencing hearing on May 4, 1998, two victims of Kaczynski's uncharged bombings, Gary Wright and Nicklaus Suino, gave impact statements before Judge Garland E. Burrell. Wright told the court that injuries to his arm and hand required three surgeries, and that he underwent extensive plastic surgery for damage to his face. Wright stated that he continues to suffer from paralysis in those areas of his body. As for the emotional and psychological damage he has experienced from the bombing, Wright gave the following statement:
Imagine what it is like to constantly wonder what would make a person want to kill you; you go to work one day, bend down to pick up a piece of debris, and suddenly think you've been shot; to look down at injuries that shock you beyond belief and wonder what has happened and why; to continually search your memory for any small indiscretion or act that could trigger this kind of anger; to be overwhelmed with the feelings of rage and heartache of knowing that you will never again be the same as were you before.
* * *
Unless you have lived through an incident of this type, you have no idea of the stress that is placed on a relationship, any relationship, be that brother to sister, father to daughter, or above all, husband and wife.
Suino stated that he was cut, bruised, and burned on his arm and abdomen. He also suffered from hearing loss for three months after the explosion. Suino described his emotional injuries as follows:
Of course, I developed a fear of opening packages. Strongest triggers of that fear were packages that were roughly the same size, shape and color as the one from the Unabomber. But any package made me nervous.
* * *
I'm less trusting now, especially of strangers. My opinion about people is there are some out there who really aren't good people, who will hurt you if they are given the chance.
That Wrights and Suinos statements were allowed in court merits a discussion of whether a jury may consider such testimony during capital sentencing proceedings. This will shed more light on the scope of permissible victim impact evidence under Payne v. Tennessee (1991). Given the current state of the law, I believe there is potential for a successful legal argument that would permit victims of a defendant's uncharged or unadjudicated crimes to testify regarding the personal impact of those offenses during the penalty phase after the defendant's conviction for a separate crime. I do not mean to suggest that such evidence should be admissible. Instead, I wish to show that it could be, using the facts in Kaczynski as a model. Mere mention of a defendants unadjudicated offenses during capital sentencing, even without victim testimony, has drawn its share of criticism under due process and the Constitutions mandate of accuracy and reliability (Smith 1993; Burbach 1991). Thus, it seems counterintuitive to suggest that victim impact evidence, with all its surrounding controversy, might be coupled with the similarly controversial use of uncharged offenses. Yet, this may be the uncharted future of victim impact evidence after Payne v. Tennessee (1991).
Relevance and Admissibility of Impact Evidence from Victims of Proven, Yet Unadjudicated Crimes During the Penalty Phase--Federal Case Law
According to the US Supreme Court in Zant v. Stephens (1983), a sentencing jury may properly consider a defendants prior criminal history as an aggravating factor. Furthermore, the Third, Fourth, Fifth, Ninth, Tenth and Eleventh Circuits have sustained the constitutionality of death sentences based in part on the defendants unadjudicated criminal history. 16 In Stephens (1983), and again in Williams v. Lynaugh (1987), the Court held that evidence of a defendants unadjudicated violent crimes may be appropriately included in the jurys assessment of his future dangerousness, and is probative of relevant elements of the defendants background. Once established as relevant and unprivileged, such evidence could be admitted, and its weight left to the sentencing jury.
At first blush, the value of allowing the jury to hear testimony from victims of a defendant's extraneous violent crimes during the penalty phase may outweigh the costs. It certainly furthers the US Supreme Courts policy, as set forth in Gregg v. Georgia (1976), to permit the jury to have as much information as possible when making the sentencing decision. More specifically, it could allow a jury to better assess factors such as the defendants character, moral culpability, blameworthiness, future dangerousness, as well as the harm he or she has caused through his or her criminal acts. In Simmons v. South Carolina (1994), Eddings v. Oklahoma (1982), Payne v. Tennessee (1991), and Barclay v. Florida (1983), the US Supreme Court recognized these factors as vital to the jurys decision of whether or not to sentence a capital defendant to death. Furthermore, the fact that a defendant has the opportunity to rebut the prosecutions evidence under Payne (1991), as well as to present mitigating evidence of his or her own, could alleviate a courts concern that testimony from the victims of the defendant's unadjudicated offenses will render the trial unfair.
Federal appellate courts have not explicitly ruled on the admissibility of victim impact testimony from victims of unadjudicated criminal offenses committed by a defendant during the penalty phase of a capital murder trial.17 However, victims of a capital defendants unadjudicated offenses have been called upon to testify as to the circumstances of those crimes. While not labeled as such by the courts, victim testimony relating to the circumstances of unadjudicated crimes, in some cases, has closely resembled victim impact evidence.
In Devier v. Zant (1993), a jury convicted the defendant of the rape and murder of a twelve- year-old girl. During the penalty phase, the government presented evidence that months prior to the charged rape and murder, the defendant had raped another girl, aged thirteen, in the backseat of his car. The victim of the prior rape testified that the defendant "grabbed her by the throat, threw her head against the car window, made her get into the backseat of the car and remove her clothes, and had sexual intercourse with her without her consent." The jury sentenced the defendant to death.
The Devier court held that the prior rape victims testimony was admissible at the penalty phase. The court did not expressly identify the prior rape victims testimony as victim impact evidence. However, the prior victims testimony regarding the details of the violent attack she experienced at the hands of the defendant contains much of the same emotional qualities - imagery of suffering and intrinsic inferences of the crimes personal impact - as the impact evidence the US Supreme Court held to be admissible during the capital penalty phase in Payne (1991).
In California v. McDowell (1988), a jury found the defendant guilty of burglary, rape and capital murder. During the penalty phase, the government presented evidence that the defendant previously raped another woman. The defendant had not been charged for this crime. The victim of this prior rape testified that the defendant brutally raped and sodomized her. In addition, the prior rape victims son, who was present during her rape, also testified to corroborate the criminal acts committed by the defendant against his mother. The jury returned a verdict of death, and the court imposed the death sentence.
In McDowell v. Calderon (1997), when denying the defendants request for habeas corpus relief, the court rejected the defendants claims that the testimony from the prior rape victim and her son violated his Eighth and Fourteenth Amendment rights. Neither the victims testimony, nor her sons testimony, was specifically identified as victim impact evidence. However, at the very least, the victims testimony of the details and brutality of the rape elicits strong images of her suffering at the hands of the defendant. Likewise, the testimony from the victims son undoubtedly created an inference of the impact that the rape of his mother had on him. The victims testimony, and that of her son, can therefore be considered the kind of "evidence relating to the defendants victims personal characteristics, as well as the emotional impact of the defendants crimes on victims families," that the US Supreme Court ruled to be admissible at the capital sentencing phase in Payne (1991). Indeed, it is no great leap--perhaps only a half step--from allowing evidence of unadjudicated crimes, given by victims of those crimes, and victim impact testimony. In this instance, the court seems to have made a distinction without a difference.
Application of Federal Case Law to Kaczynski
The aforementioned cases lend credence to the possibility that victims of Kaczynskis unadjudicated bombings would likely have been allowed to give explicit impact testimony at the penalty phase, had the trial proceeded that far. Under Zant v. Stephens (1983) and Williams v. Lynaugh (1987), evidence of Kaczynskis extraneous violent crimes would be vital to the jurys assessment of his future dangerousness, and provides a probative description of relevant elements of his background. Furthermore, under Gregg (1976), Simmons (1994), Eddings (1982), Payne (1991) and Barclay (1983), impact testimony from victims of Kaczynskis uncharged bombings would allow the jury to consider "as much information as possible" in determining the appropriate punishment. According to these cases, such impact testimony would enable the jury to consider important factors such as Kazcynskis character, moral culpability, blameworthiness, and the full extent of the harm he has caused.
In McDowell (1997) and Devier (1993), graphic details and descriptions of the unadjudicated crimes, the cruel manner in which they were carried out, and the extent of the injuries and suffering experienced by those victims were allowed into evidence during sentencing. Thus, similar testimony by Kazcynskis prior victims would likely be admitted to show those victims personal characteristics and the impact that the crime had on the victims and their families (McDowell 1997).
Kaczynski would have the opportunity to rebut the United States evidence, as well as to proffer any mitigating circumstances of his own, thereby ensuring that he would not be unduly prejudiced. Therefore, one could effectively argue that, under the Payne (1991) standard, permitting victims of Kaczynskis unadjudicated extraneous bombings to provide victim impact testimony would not render his trial procedurally unfair. Indeed, under Payne, absent concerns of evidentiary reliability and procedural fairness, there remains no basis under which to exclude evidence of victim impact from Kaczynskis uncharged violent crimes during the penalty phase of a capital murder trial.
SOME PROPOSALS FOR MAINTAINING RATIONAL CAPITAL SENTENCING
The increasing scope of admissible victim impact evidence, as applied in United States v. McVeigh (1997) and that evidence available in United States v. Kaczynski (1997), represents a disturbing trend toward the unrestricted admissibility of prejudicial evidence at the expense of rational sentencing. In McVeigh, the court admitted graphic descriptions of the crime scene, the bodies found amidst the rubble, and the suffering endured by the wounded and dying victims. This evidence was presented to the jury by rescue workers and police officers--indirect victims of the bombing. Furthermore, a total of thirty-eight "victims" were allowed to give impact testimony. In the Kaczynski case, it is clear that, under the current standard, victims of Kaczynskis prior unadjudicated crimes could be permitted to give impact testimony at the penalty phase for a separate crime.
McVeigh and Kaczynski indicate that the nature of some penalty phase evidence admissible as impact testimony is unduly prejudicial. Furthermore, the definition of "victim" for the purposes of victim impact evidence is becoming increasingly broad. Where do we draw the line as to who may or may not properly testify? At what point does emotional testimony about "victims" suffering preclude rational decision-making? How many "victims" may testify to the facts and circumstances surrounding a crime before the evidence becomes cumulative?
I believe there are three guidelines which would help put reasonable, mostly quantitative, limits around victim impact evidence: 1) A definition of who may be considered a victim; 2) pre-trial disclosure; and 3) a limit on the number of victim witnesses. But even collectively these guidelines would not get at the heart of the matter--the potential for even one victim witness to inflame the jury. For that, the courts would need to apply a fourth guideline--a due process standard similar to Federal Rule of Evidence 403.
Narrowing the Pool of Qualified Victim Impact Witnesses
The penalty phase in McVeigh illuminates the most obvious and most simple limitation: Only immediate family members or closest of kin should be considered qualified to give impact testimony during capital sentencing. Judge Matsch's decision to permit "indirect victims" to speak to the jury about the impact of the Oklahoma City bombing set a dangerous precedent. As noted by James Bayley (1991:53), "almost anyone can be a 'victim' of almost anything...." The rescue workers testimony in McVeigh might have opened the door for anyone who can point to any cost he or she has incurred as a result of a defendant's conduct to have the opportunity to influence a jury in a penalty phase hearing. Strict definitions of who may be considered a "victim" are needed to ensure that the door does not open that wide.
Anderson (1997) contends that a complete disclosure of victim impact testimony should be required pre-trial. According to Anderson (1997), where the prosecution's victim impact information is extraordinarily emotional or extensive, a defendant may decide that his fate is better left to an experienced jurist rather than a lay jury. Thorough pre-trial disclosure would enable the defendant to make an informed decision to waive the right to a jury trial (Anderson 1997). The US Supreme Court has never created a right to discovery prior to jury selection in order to assist a defendant in capital sentencing. However, Anderson (1997) argues that the Court's recognition, in California v. Ramos (1983), that capital punishment is different from other forms of punishment and may require different rules provides a foundation for his proposal. Furthermore, pre-trial disclosure of victim impact information allows the judge to examine the relevance and scope of offered victim impact evidence and exercise appropriate discretion as to what may be introduced to the sentencing jury (Anderson 1997). In the event a defendant wishes to challenge the prosecution's victim evidence, pre-trial disclosure provides adequate time to research and prepare objections (Anderson 1997).
Although pre-trial disclosure would help to control the scope of victim impact evidence, it does not ensure that what the prosecution discloses will match the testimony actually offered during penalty phase proceedings. For example, in McVeigh, the government provided the court with a detailed description of the victim testimony it intended to present during the penalty phase. The judge decided to admit the proposed evidence with the understanding that the court would guard against the elicitation of an emotional jury response. However, the victims' testimony during the sentencing proceedings arguably did provoke an emotional reaction from the jury. In the words of McVeigh's attorney, "Efforts by the [c]ourt to limit the evidence presented were to no avail, as the general parameters of admissibility and relevance it set out were either not followed by the government's examiners, or were exceeded by the witnesses themselves."
Pre-trial disclosure of victim impact evidence is therefore a helpful, but imperfect, remedy. Its effectiveness relies heavily on the court's willingness and ability to make sound rulings and to adhere to them throughout the penalty phase.
Limiting the Number of Victim Witnesses
Johnson (1997) argues that victim impact statutes should be amended to allow only one victim or representative to testify during capital sentencing. According to Johnson, each witness paraded before the jury increases the chances for penalty phase evidence to become cumulative and prejudicial. Johnson (1997: 816) acknowledges that this standard is unappealing to victims' families:
Inevitably the victim's murder ... will have impacted many members of his or her family, and the natural temptation is to bring numerous family members to the stand to drive home the impact of the defendant's crime and to give them their day in court.
Johnson's "one witness" limit would also be difficult to follow in cases of multiple murders. For instance, how could but one witness speak to the impact of the 168 deaths caused by Timothy McVeigh? The number of witnesses necessary to adequately show "each individual's uniqueness as a human being" under Payne may vary from case to case, making a "one witness" limit too strict. But I cannot conceive of any situation in which more than five victim witnesses should be permitted to testify.
Two-Pronged Due Process Standard
Levy (1993) contends that the problem with Payne lies in the vagueness of the Court's due process remedy. According to Levy (1993:1037), the Payne Court's due process test "provides no guidance as to precisely what evidence or argument will be considered 'unduly prejudicial.'" Further, Levy (1993), citing Darden v. Wainwright (1986) and Donnelly v. De Christoforo (1974), points out that it is extremely difficult to prove that any courtroom conduct renders a sentencing proceeding unfair, especially where evidence of guilt is overwhelming. Since victim impact evidence in capital sentencing involves eighth amendment concerns, Levy (1993) argues that a precise standard is especially critical.
In determining whether victim impact evidence should be admitted in a defendant's capital sentencing hearing, Levy (1993) recommends that the court apply an analysis similar to that set forth in Federal Rule of Evidence 403. 18 Under this analysis, the court would declare victim impact evidence unconstitutional if its prejudicial value substantially outweighs its probative value. Adopting a Rule 403 standard would accomplish two things. First, it would eliminate the "fundamentally unfair" language used by the Payne Court to gauge the level of prejudice required for constitutional exclusion of evidence (Levy 1993). Second, it would enable courts to refer to the vast body of Rule 403 precedent for guidance in determining whether proffered victim impact evidence is admissible (Levy 1993).
Almost all victim impact evidence contains little probative value and a high potential for prejudice. Consequently, most victim impact testimony will not survive the 403 standard unless it is carefully tailored (Levy 1993). In the event there is prejudicial victim impact testimony, Levy (1993) recommends that appellate courts apply a harmless error analysis to determine whether a new sentencing hearing is required. According to Levy (1993:1053), "the harmless error test must require the prosecutor to prove beyond a reasonable doubt that the error complained of did not contribute to the result."
Levy's two-pronged due process standard is probably the best available mechanism to ensure that victim impact evidence, as endorsed in Payne v. Tennessee (1991), heeds the concerns of the Booth v. Maryland (1987) majority. Under Rule 403, victim impact testimony will not be admitted merely because it is considered relevant. Rather, careful consideration must be given to its prejudicial quality and its likelihood of encouraging capricious sentencing. Moreover, requiring a new sentencing hearing where there is a reasonable possibility that the defendant's sentence hinged on unduly prejudicial impact evidence provides capital defendants with a legitimate opportunity to challenge improper death sentencing proceedings. In short, use of both prongs allows for victim participation while maintaining the integrity of the justice system.
Although the connection has not been made explicitly, there is a philosophical link between retribution as a rationale for capital punishment and victim impact evidence. For whom are we seeking retribution--society as a whole or the victims? The US Supreme Court attempted in Gregg v. Georgia (1976:183) to make a case for society: "The instinct for retribution is part of the nature of man, and channeling that instinct in the administration of criminal justice serves an important purpose in promoting the stability of a society governed by law." But the Gregg Court (1976:184) goes on to make clear, inadvertently it seems, that society is not seeking retribution for itself but is simply giving in to the baser instincts of individuals: "When people begin to believe that organized society is unwilling or unable to impose upon criminal offenders the punishment they deserve, then there are sown the seeds of anarchy--of self-help, vigilante justice, and lynch law." As Justice Marshall responded in his dissent in Gregg (1976:238), "It simply defies belief to suggest that the death penalty is necessary to prevent the American people from taking the law into their own hands."
Retribution on behalf of society is an abstraction. It is the victim who may feel a need for retribution. As long as retribution remains a rationale for capital punishment, victim impact evidence, the social and legal medium through which individuals may seek retribution, is sure to follow. But if retribution were to fall as a rationale (which is not unlikely, however far it may be in the future), argument for victim impact evidence would be severely limited.
In the meantime, this countrys long history of due process guarantees and the US Supreme Courts own admonition that the death penalty must be based on reason (no matter how quixotic that admonition is) suggest that victim impact evidence can be effectively limited even as victims rights as a social movement remains in ascendancy.
The issue has reached a critical stage. Victim impact evidence can become, if it has not already, a major setback in our nations longstanding interest in careful and consistent sentencing. Societys increasing demands on behalf of victims has created an "upsurge in punitiveness" (Elias 1986:123). However, Elias (1986:118) has found through his research that policies encouraging retribution and punishment do not advance victims interests or further their recovery. This suggests that the downside of victim impact evidence--the threat to procedural fairness and rational sentencing--is greater than its supposed upside--the promotion of compassion and redress for victims.
In any event, death penalty issues should not be quite so vulnerable to fashionable thought. Nor should capital sentencing procedures be treated as experiment or subject to contingency. By leaving the admissibility of victim impact testimony open to interpretation in Payne v. Tennessee (1991), the US Supreme Court compounds an already considerable risk that unduly prejudicial evidence will be admitted, and that arbitrary and emotional capital sentencing decisions will result.
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1. The author wishes to thank Lauren C. Andrade, Thomas S. Donahoe, Patrick G. Jackson and the anonymous Western Criminology Review reviewers for their helpful comments and suggestions on previous drafts. The author also wishes to thank Floyd F. Feeney and R. Steven Lapham for providing him with the training and inspiration to research and write about this topic.
2. Earl Warren served as Chief Justice of the United States Supreme Court from 1953 to 1969. McCloskey (1972:337) described the activism of the Warren years on the Court as "one of the most creative and daring periods in Constitutional history." Among the Warren Court's more consequential decisions were those that applied or extended a defendant's privilege against self-incrimination, his right to counsel at various stages of the criminal justice process, and the court's duty to exclude evidence obtained improperly (Carrington 1975). However, the period since the late 1970's has seen a shift in which the pendulum of American law has swung away from criminal defendants (Eikenberry 1989; Rhodes 1994). Many commentators, most notably Akhil Reed Amar, support what has become known as the "Truth School" in criminal procedure, which asserts that "although the guilty will often have the same rights as the innocent, they should never have more, and never because they are guilty" (Amar and Cochran 1996:1194; Carrington and Nicholson 1984).
3. Judiciary recommendation number six reads: "Judges should allow for, and give appropriate weight to, input at sentencing from victims of violent crime." The Task Force's justification for requiring victim impact evidence at sentencing relies heavily on the victim's rights notion of relative procedural fairness between victims and defendants:
Victims, no less than defendants, are entitled to their day in court. Victims, no less than defendants, are entitled to have their views considered. A judge cannot evaluate the seriousness of a defendant's conduct without knowing how the crime has burdened the victim. A judge cannot reach an informed determination of the danger posed by a defendant without hearing from the person he has victimized....
Victims of violent crime should be allowed to provide information.... Any recommendation on sentencing that does not consider such information is simply one-sided and inadequate. [E]very victim must be allowed to speak at the time of sentencing. The victim, no less than the defendant, comes to court seeking justice. When the court hears, as it may, from the defendant, his lawyer, his family and friends, his minister, and others, simple fairness dictates that the person who has borne the brunt of the defendant's crime be allowed to speak (1982:76-77).
4. In its most recent form, Rule 32 reads in pertinent part:
(b) Presentence and Investigation Report.(4) Contents of the Presentence Report. The presentence report must contain--
(D) verified information stated in a nonargumentative style, containing an assessment of the financial, social, psychological, and medical impact on any individual against whom the offense has been committed...
(c) Sentence.(3) Imposition of Sentence. Before imposing sentence, the court must:
(E) if sentence is to be imposed for a crime of violence or sexual abuse, address the victim personally if the victim is present at the sentencing hearing and determine if the victim wishes to make a statement or present any information in relation to the sentence.
(f) Definitions. For the purpose of this rule--(1) "victim" means any individual against whom an offense has been committed for which a sentence is to be imposed, but the right of allocution under subdivision (c)(3)(E) may be exercised by--
(B) one or more family members or relatives designated by the court if the victim is deceased or incapacitated; if such person or persons are present at the sentencing hearing, regardless of whether the victim is present...
5. The Statute reads in pertinent part:
[A] United States District Court shall not order any victim of an offense excluded from the trial of a defendant accused of that offense because such victim may, during the sentencing hearing, testify as to the effect of the offense on the victim or the victim's family ....
* * *
For the purposes of the ... sentence, the fact that a victim ... attended or observed the trial shall not be construed to pose a danger of creating unfair prejudice, confusing the issues, or misleading the jury.
6. Under Md.Ann.Code, Art. 41, § 4-609(c), (d) (1986), a presentence report must be prepared in all felony cases, and said report shall:
7. Specifically, the prosecutor commented:
We know from the proof that [the victim] was a religious person. He had his religious items out there.... Among the many cards that [the victim] had among his belongings was this card.... He had his religious items, his beads. He had a plastic angel. Of course, he is now with the angels now, but this defendant Demetrius Gathers could care little about the fact that he is a religious person.... But look at [the victim's] prayer. It's called the Game Guy's Prayer.
After reading the Game Guy's Prayer the jury, the prosecutor continued:
You will find some other exhibits in this case that will tell you more about a just verdict.... [T]he proof cries out from the grave in this case. Among the personal effects that this defendant could care little about . . . is something that we all treasure.... Very simple yet very profound. Voting. A voter's registration card. [The victim] believed in this community. He took part.
8. Ohio v. Sowell (1988); Ohio v. Post (1987); Evans v. Indiana (1990); Smith v. Virginia (1990).
9. California v. Ghent (1987); California v. Douglas (1990); Illinois v. Jones (1988); Shell v. Mississippi (1989); Montana v. Dawson (1988); Montana v. Kills on Top (1990).
10. California v. Medina (1990).
11. Idaho v. Paz (1990); Idaho v. Fain (1991); Idaho v. Pizzuto (1991).
Prior to trial, in its
Memorandum Opinion and Order on Motions to Change Venue,
theMcVeigh court characterized the explosion and its effect on
the local community as "profound and pervasive," an "extraordinary
provocation of [Oklahomans'] emotions of anger and
vengeance," and "a tragedy with such powerful emotional impact that
people have come to measure time by it."
13. The June 23, 1997 edition of Newsweek included the following commentary:
"[T]he eight day penalty
phase was a model of the way American courts are supposed to function
- but sometimes don't. The speedy, unequivocal result is a credit to
the fine presence of Judge Richard P. Matsch as much as to the
avalanche of circumstantial evidence the government presented against
McVeigh. It is also a tribute to the underlying strength of the jury
system..." (Annin and Morganthanau 1997:40).
14. The government's trial brief (redacted version) sets for the following list the dates, locations, and results of each bombing:
15. The pertinent part of the government's death penalty notice reads:
[T]he United States will rely on the following non-statutory aggravating factors to justify a sentence of death:
* * *
The defendant caused severe and irreparable harm to the families of three murder victims and caused life altering injuries to the survivors of his acts of violence.
16. Lesko v. Owens (1989); Gray v. Thompson (1995); Clark v. Collins (1994); McDowell v. Calderon (1997); Hatch v. Oklahoma (1995); Devier v. Zant (1993).
The Attorney General's
Guidelines for Victim and Witness Assistance define "victim" as "a
person who has suffered direct...physical, emotional...or pecuniary
harm as a result of the commission of a crime, among and including:
in the case of a victim who is deceased, one or more of the
following: a spouse, a legal guardian, a parent, a child, a sibling,
another family members, or another person designated by the court."
Nothing in this definition restricts the term "victim" to only those
individuals injured by the crime currently being charged. Moreover,
Volume 18, Section 3663(a)(2) of the United States Code defines
"victim" as "any person harmed by the defendantís criminal
conduct in the course of a scheme, conspiracy, or pattern."
Therefore, insofar as a defendant's unadudicated crime can be
construed as part of a single scheme, conspiracy or pattern, those
injured by such unadjudicated conduct arguably fall within the
category of victims eligible to give impact testimony.
18. Federal Rule of Evidence 403 provides:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
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Against Victim's Right? The Nature of the Opposition to Pro-Victim
Initiatives in Criminal Justice." St. John's Journal of Legal
Lesko v. Owens, 881 F.2d 44
(3d Cir. 1989).
Levy, Jonathon H. 1993. "Limiting
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Stanford Law Review 45/1027.
Linda R.S. v. Richard D.,
410 U.S. 614 (1973).
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Ohio v. Post, 513 N.E.2d
Ohio v. Sowell, 530 N.E.2d
Order of restitution. United
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Joel F. Donahoe
Joel F. Donahoe is an associate attorney with the Law Offices of Martin F. Triano in San Francisco, California. He received his B.A. in Political Science from the University of California, Los Angeles in 1995, and his J.D. from the University of California, Davis in 1998. During law school, he worked as a law clerk in the Criminal Division of the United States Attorney's Office in Sacramento, California.
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