VICTIM IMPACT EVIDENCE: AN ANALYSIS ON THE EFFECT OF VICTIM IMPACT EVIDENCE ON THE SENTENCING STAGE IN DEATH-PENALTY CASES AND POTENTIAL REFORMS

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1 Stanford University From the SelectedWorks of Kyle W Kahan July 10, 2013 VICTIM IMPACT EVIDENCE: AN ANALYSIS ON THE EFFECT OF VICTIM IMPACT EVIDENCE ON THE SENTENCING STAGE IN DEATH-PENALTY CASES AND POTENTIAL REFORMS Kyle W Kahan, Stanford University Available at:

2 VICTIM IMPACT EVIDENCE: AN ANALYSIS ON THE EFFECT OF VICTIM IMPACT EVIDENCE ON THE SENTENCING STAGE IN DEATH-PENALTY CASES AND POTENTIAL REFORMS Kyle Walker Kahan I. Introduction...1 II. Defining Victim Impact Evidence.4 III. Supreme Court Decisions on Victim Impact Evidence.6 A. Booth v. Maryland...7 B. South Carolina v. Gathers...8 C. Payne v. Tennessee..9 D. Kelly v. California..12 IV. Death-Qualified Jury 13 V. Recent Research on Victim Impact Evidence and What to Conclude.14 A. Methodology Concerns..15 B. Paternoster & Deise..18 VI. Potential Victim Impact Evidence Reform..23 A. Shift the Victim impact Evidence and Testimony to Post-Verdict Proceedings.23 B. Enforce Stricter Guidelines and Rules on What Reasonable Limits Must be Placed on Victim Impact Statements..26 C. Allow the Defendant to Present Execution Impact Evidence.28 VII. Conclusion

3 I. Introduction Death Penalty cases are emotionally tolling to all parties involved. Attorneys commit hours upon hours of time and effort into their cases in the hopes of convincing a jury that their argument is the correct argument. Defendants can only wait while the most important proceeding of their life occurs before them. However, this emotional impact is not just limited to the attorneys and clients. Investigators commit hours upon hours of time and effort into closing the case. Reporters report, judges judge, advocates advocate, and jurors deliberate. When the result of that deliberation is a guilty verdict, the sentencing phase begins and the defendant becomes susceptible to a punishment of death. During that sentencing phase, prosecutors must show to the jury why the convicted defendant should receive the death penalty for their actions; this is typically accomplished through the use of aggravating statutory facts. Similarly, the defense will attempt to show the jury through the use of mitigating factors, why the defendant should not receive the death penalty for their actions. It is at this stage that a new party enters the formal process. A party that, for a long time, was historically been neglected by the criminal justice system. 1 Of the thirty-seven states that continue to have the death-penalty as a potential sentence for capital cases 2, thirty-two allow victim impact evidence in some capacity. 3 This jumps up to 1 L.N. Henderson, The Wrongs of Victim s Rights, 37 STAN. L. REV. 937, 985 (1985). 2 Since the Maryland Senate has voted to repeal the death penalty, and Governor Martin O Malley has stated his intention to sign the bill, they will be excluded from this analysis. See John Wagner, Md. End of Death Penalty Passes, WASH. POST, Mar. 16, 2013 at A01. 3 See John H. Blume, Ten Years of Payne: Victim Impact Evidence in Capital Cases, 88 CORNELL L. REV. 257, 268 (2003) (research done before Maryland death-penalty repeal). 2

4 thirty-three jurisdictions if you include the federal government and military commissions. 4 This means during the sentencing, the prosecution has the opportunity to introduce evidence indicating the specific harm caused by the defendant. 5 Through this, the prosecution is allowed the opportunity to show a jury the victim or victims life, uniqueness, and personality. This has become a contentious issue in the both the fields of law and statistics. The primary legal concern with Victim impact Evidence is its potential prejudicial effect against the defendant. Victim impact Evidence will typically include testimony or a statement from a family member or someone with personal knowledge of the defendant; this will also typically include emotional testimony demonstrating the victim s worth, his life, his potential, and the damage his loss of life created. Statistical evidence has been gathered in a number of studies in order to determine whether the presence of victim impact evidence is prejudicial against the defendant and makes a jury more likely recommend the death penalty. So far, the results are mixed. Prior to the more recent studies that this Research Paper will address, the United States Supreme Court weighed in on the matter in several landmark cases. At first, the Court held that the use of Victim impact Evidence violated the Eighth Amendment of the Constitution 6 and the information provided in such evidence was irrelevant to the defendant s moral culpability. 7 However, in a reversal of traditional stare decisis, the Court overturned Booth and Gathers and held that the Eighth Amendment did not per-se exclude Victim impact Evidence. 8 4 Id. at Payne v. Tennessee, 501 U.S. 808, 825 (1991). 6 Booth v. Maryland, 482 U.S. 496 (1987). 7 See id.; South Carolina v. Gathers, 490 U.S. 805 (1989). 8 Payne v. Tennessee, 501 U.S. 808 (1991). 3

5 This Research Paper aims to examine the potential prejudicial effect of Victim impact Evidence on sentencing in death-penalty cases and how to best address these concerns. First, this Research Paper will discuss what exactly Victim impact Evidence is and is not. Second, it will discuss the Supreme Court s landmark cases on this subject and draw out the differing attitudes towards the inclusion or exclusion of Victim impact Evidence. Third, this Research Paper will briefly address what type of jurors make up a death-qualified jury; this will be done through an examination of the Supreme Court s ruling on the makeup of death-qualified jurors. Fourth, this Paper will touch upon the studies on Victim Impact Evidence s potential prejudicial effects on sentencing, and what conclusions to draw from these studies. Finally, this Paper will offer suggestions on whether states should resolve the issues brought up in these studies and, if so, how to best accomplish this task while still including victim participation in trials. II. Defining Victim Impact Evidence There are multiple statutory and case law determinations as to what Victim impact Evidence can include. Under federal law it is defined as a statement or oral testimony that identifies the victim of the offense and the extent and scope of the injury and loss suffered by the victim and the victim s family, and any other relevant information. 9 In Florida, the state defines victim impact evidence as evidence designed to demonstrate the victim s uniqueness as an individual human being and the resultant loss to the community s members by the victim s death. 10 Other states have more specific criteria as to what a victim 9 18 U.S.C Fla. Stat

6 impact statement should include. 11 Some even allow victims to give testimony as to whether the defendant should be sentenced to death. 12 In Payne v. Tennessee, Justice O Connor, in a concurring opinion, defined Victim Impact Evidence as a way to personalize someone who was taken away by the ultimate act of depersonalization. 13 It allows the jury an opportunity to see the victim not as a corpse or faceless stranger 14, but as someone who is special and unique. 15 With these definitions also come statutory and judicial restrictions. For example, Florida excludes [c]haracterizations and opinions about the crime, the defendant, and the appropriate sentence. 16 Further, some statutes note that victim impact evidence cannot be so inflammatory as to unduly prejudice the defendant. 17 Indiana prohibits victim impact evidence unless it is relevant to one of the statutory aggravating factors. 18 Mississippi requires that VIE be proper and necessary to the development of the case and further requires that the prosecution show to the court that the evidence will not incite the emotions of the jury. 19 Despite these restrictions, prosecutors have used a variety of mediums to convey the emotional harm inflicted on the surviving family. These mediums have included oral 11 See, e.g., Va. Code. Ann (2013); Tex. Code Crim. Proc. art (2012) (both explaining what a victim impact statement can include, such as psychological harm, economic harm, and the personal welfare of the victim or victim s family). 12 Oklahoma, Alabama, and Kansas expressly allow victim impact testimony containing the... opinion as to the appropriate sentence for the capital defendant. Blume, supra note 3, at (citing Hyde v. State, 778 So. 2d 199, (Ala. Crim. App. 1998); Lebetter v. State, 933 P.2d 880, 891 (Okla. Crim. App. 1997); State v. Gideon, 894 P.2d 950, (Kan. 1995)). 13 Payne, 501 U.S. at 832 (J. O Connor concurring). 14 Id. at Id. at Fla. Stat O.C.G.A (3); see also 12 Okla. St. Ann (excluding relevant evidence if the probative value is substantially outweighed by the danger of unfair prejudice). 18 Blume, supra note 3, at 257 (citing Ind. Code Ann (b) (Michie 1998)). 19 Blume, supra note 3, at 269 (citing Jenkins v. State, 607 So. 2d 1171, 1183 (Miss. 1992)). 5

7 testimony 20, letters from the victim 21, photographs 22, poetry 23 and videos. 24 None of these mediums have been deemed unfairly prejudicial on their own. Rather, it s how they are used in the sentencing proceedings and whether what the presentation encompasses in itself is unduly prejudicial. This is a fine line that has yet to be clearly defined and has even been called inherently uncontrollable. 25 Essentially, Victim impact Evidence is evidence of the victim s life, character, and personality. Victim impact Evidence also includes the emotional, psychological, and familial harm caused by the loss of these attributes suffered by the victim s friends and family. Evidence about the victim s good character, 26 talents and skills, 27 intelligence, 28 religious beliefs 29 work ethic 30 and educational background 31 have all been admitted into evidence during the sentencing phase. Victim witnesses have also testified about the crime s impact on marriages, 32 miscarriages, 33 and illnesses. 34 The evidence can be presented before a jury during the sentencing phase through a variety of means, so long as the defendant is not unduly prejudiced by the methods. What 20 Payne, 501 U.S See, e.g., United States v. Fulks, 454 F.3d 410 (4th Cir. 2006). 22 See, e.g., People v. Edwards, 54 Cal. 3d 787 (1991), reh g dinied; State v. Middleton, 995 S.W.2d 443 (Mo. 1999). 23 Blume, supra note 3, at 271 (citing Noel v. State, 960 S.W.2d 439, (Ark. 1998)). 24 See, e.g., People v. Kelly, 42 Cal. 4th 763, (2007) (finding no prejudicial error in a trial court s inclusion of a 20 minute long video of the victim s life containing photographs, narration, and music); Whittlesey v. State, 340 Md ). 25 See Robert P. Mosteller, Victim Impact Evidence: Hard to Find the Rules, 88CORNELL L. REV. 553, 554 ( As I see it, the basic problem is that victim impact evidence is inherently uncontrollable. There are no real rules because there cannot be effective control of this type of evidence. ). 26 Blume, supra note 3, at 269 (citing Sullivan v. State, 636 A.2d 931, 940, 942 (Del. 1994)). 27 Blume, supra note 3, at 269 (citing Whittlesey v. State, 665 A.2d 223, (Md. 1995)). 28 Blume, supra note 3, at 269 (citing State v. Frost, 727 So. 2d 417, (La. 1998)). 29 Blume, supra note 3, at 269 (citing Turner v. State, 486 S.E.2d 839, 842, 844 (Ga. 1997)). 30 Blume, supra note 3, at (citing Smith v. State, 756 So. 2d 892, (Ala. Crim. App. 1997)). 31 Blume, supra note 3, at (citing Smith, 756 So. 2d at ). 32 Blume, supra note 3, at 270 (citing McDuff v. State, 939 S.W.2d 607, 620 (Tex. Crim. App. 1997)). 33 Blume, supra note 3, at 270 (citing Holmes v. State, 671 N.E.2d 841, (Ind. 1996)). 34 Blume, supra note 3, at 270 (citing Griffith v. State, 983 S.W.2d 282, 289 (Tex. Crim. App. 1998)). 6

8 exactly constitutes prejudice is unclear, and where the line is drawn between admissible and inadmissible Victim impact Evidence also appears unclear and vague. III. Supreme Court Decisions on Victim Impact Evidence The United States Supreme Court has dealt with Victim impact Evidence on multiple occasions. The first two instances, Booth and Gathers, indicated a strong opinion by the Court that the sentencing phase in a capital trial cannot introduce irrelevant information that could potentially taint the jury s attempt to enact a sentence in a non-arbitrary manner. However, the third instance, Payne, reversed the prior two holdings and determined that the 8th Amendment did not hold a per-se bar against Victim impact Evidence. A. Booth v. Maryland The first of the three major victim impact evidence cases focused on the murders of Irvin and Rose Bronstein in West Baltimore, Maryland. 35 In Booth, the defendant and an accomplice entered the Bronstein s home with the intent to steal money. 36 After binding and gagging the Bronsteins, the defendant and his accomplice stabbed the helpless victims multiple times with a kitchen knife. 37 After a trial finding Booth guilty on two counts of first-degree murder, two counts of robbery, and conspiracy to commit robbery, the State Division of Parole and Probation compiled a presentence report which, due to a Maryland statute, also included a victim impact statement 35 See Booth, 482 U.S. at Id. at Id. at

9 (VIS), describing the effect of the crime on the victim and his family An attempt by the defendant to suppress the VIS on relevancy and unduly inflammatory grounds failed. 40 After multiple appeals, the case found its way to the United States Supreme Court. There, in a 5-4 decision, the Court held that the introduction of VIS at the sentencing phase of a capital murder trial violates the Eight Amendment. 41 The Court indicated, through an opinion authored by Justice Powell, that the formal presentation of this information by the State can serve no other purpose than to inflame the jury and divert it from deciding the case on the relevant evidence concerning the crime and the defendant. 42 This followed the Court s continued philosophy to prevent the death penalty to be based off of emotion and instead based on reason. 43 B. South Carolina v. Gathers Two years later, the Court examined the inclusion of a victim s characteristics through the prosecution s closing statement in the sentencing phase of a capital case. 44 In Gathers, the defendant and his friends attacked the victim, Richard Haynes, by beating and kicking him severely and smashing a bottle over his head. 45 After this, the defendant assaulted Haynes with an umbrella before sodomizing the victim with it. 46 The defendant then returned to the scene of 38 Id. 39 This VIS was based on interviews with the Bronsteins son, daughter, son-in-law, and granddaughter. Id. at 499. Language included in the VIS included the son describing that his parents were butchered like animals and that he suffers from lack of sleep and depression. Id. at The VIS also included statements by the daughter indicating that she could not forgive Booth and that he could never be rehabilitated. Id. at Id. at Id. at Id. at 508 (emphasis added). 43 Gardner v. Florida, 430 U.S. 349, 358 (1977). 44 Gathers, 490 U.S Id. at Id. at

10 the crime later that day and stabbed Haynes to death. 47 After a trial by jury, the defendant was convicted of murder and first-degree sexual conduct. 48 At the sentencing phase, the prosecution presented no additional evidence 49, but did discuss Haynes during their closing argument. During closing arguments, the prosecution referred to Haynes as a religious person and presented several of his personal belongs found near his body. 50 These objects spoke directly to the Haynes apparent religious devotion, referring to him as Reverend, and his belief in the community. 51 After the South Carolina Supreme Court reversed the defendant s death sentence, the United States Supreme Court granted certiorari. The Court held that the prosecution s closing arguments did not provide relevant information to the circumstances of the crime or reveal certain personal characteristics of the defendant 52 and went well beyond the fact. 53 Through this case, the United States Supreme Court restricted the use of victim impact evidence even further. Now, prosecutors, during the sentencing phase of a capital trial, were limited even in their closing arguments to information that would be relevant to the defendant s moral culpability. 54 Essentially, the Court clarified that VIS bear little relevance to sentencing 47 Id. 48 Id.at The objects referenced by the prosecution in the closing argument were admitted into evidence during the trial. Id. at 807. At the sentencing phase, the objects were readmitted into evidence. Id. at Id. at Id. at Id. at 811 (quoting Brief for Petitioner 28). 53 Id. at Id. at

11 judgments even when the information is presented by the prosecutor rather than by a witness. 55 However, this would all change two years and two justices later. C. Payne v. Tennessee In 1991, the United States Supreme Court reversed course on the subject of victim impact evidence in the monumental case Payne v. Tennessee. 56 In Payne, the issue revolved around testimony of a witness, during the defendant s penalty phase; the witness being the mother of one the victims and grandmother to the other two victims. 57 The background of Payne is not a pleasant one. There, the defendant entered Charisse Christopher s apartment and stabbed her and her two children dozens of times, killing Charisse and her daughter Lacie Jo. 58 After arresting and convicting the defendant on all counts, the State presented the testimony of Mary Zvolanek, Charisse s mother during the sentencing phase. 59 Zvolanek referenced the affect the attack had on Charisse s son, noting his cries for his sister and mother. 60 The prosecution also emotionally and repeatedly mentioned the pain Charisse s son was experiencing due to the defendant s actions. 61 The defendant was then sentenced to death for each count of murder Bryan Myers & Edith Greene, The Prejudicial Nature of Victim Impact Statements, 10 PSYCHOL. PUB. POL Y & L. 492, 496 (2004). 56 Payne, 501 U.S Id. at Id. at Charisse s 3- year old son Nicholas managed to survive the defendant s attacks despite several deep knife wounds. Id. at Id. at Id. 61 Id. at Id. at

12 After the Tennessee Supreme Court affirmed the conviction 63, the United States Supreme Court granted certiorari and affirmed the conviction. The Court overruled its prior holdings in Booth and Gathers and determined that the Eight Amendment does not per-se bar states from allowing victim impact evidence. 64 Chief Justice Rehnquist determined that victim impact evidence, rather than being irrelevant to the defendant s moral culpability, is simply another form or method of informing the sentencing authority about the specific harm caused by the crime in question. 65 Aside from finding a legitimate purpose[] for victim impact evidence to show the specific harm a crime caused, the majority also determined that victim impact evidence allows the prosecution to remind the sentencer that just as the murderer should be considered as an individual, so too the victim is an individual whose death represents a unique loss to society and in particular his family. 66 In fact, the majority also saw the Booth victim impact exclusion as depriving the State of the full moral force of its evidence and may prevent the jury from having before it all the information necessary to determine the proper punishment for a first-degree murder. 67 In essence, the Court noted that the defendant can present an endless amount of witnesses and evidence demonstrating mitigating factors while victims were not allowed to share the pain the defendant s crime actually caused. 68 This information, the Court concluded, might be able to 63 This is so despite the Supreme Court of Tennessee noting that Mary Zvolanek s testimony was technically irrelevant. Id. at 816. However, the court concluded that it did not create a constitutionally unacceptable risk of an arbitrary imposition of the death penalty and was harmless beyond reasonable doubt. Id. at 817 (quoting State v. Payne, 791 S.W.2d 10, 18). 64 Payne v. Tennessee, 501 U.S. 808 (1991). 65 Id. at 825 (emphasis added). 66 Id. at 825 (quoting Booth, 482 U.S. at 517 (White, J., dissenting)). 67 Payne, 501 U.S. at The Supreme Court of Tennessee noted this fairness concern when it said It is an affront to the civilized members of the human race to say that at sentencing in a capital case, a parade of witnesses may praise the 11

13 help the sentence see the difference between two equally blameworthy criminal defendants [who] may be guilty of different offenses simply because their acts cause differing amounts of harm. 69 After Payne, states were no longer barred from presenting victim impact evidence in capital cases. Though not every state allows their inclusion in capital cases, a majority of the States now allow for evidence and testimony indicating the specific harm a defendant s actions had on the victim and their family. Payne did leave defendants the opportunity to present Due Process claims [i]n the event that evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair. 70 Whether the testimony or evidence is unduly prejudicial is to be determined through a case-by-case basis. 71 D. Kelly v. California The United States Supreme Court nearly confronted the subject of what the reasonable limitations of victim impact evidence should be through a case called Kelly v. California. 72 However, the Court denied certiorari; two justices dissented from this decision. 73 In Kelly, the prosecution presented a twenty minute video detailing the life of the victim through a series of photographs and video footage. 74 The video also consisted of a narration by the victim s mother while soft music sung by Enya played in the background. 75 In the companion background, character and good deeds of [the] Defendant... without limitation as to relevancy, but nothing may be said that bears upon the character... or the harm imposed, upon the victims. Id. at 826 (quoting State v. Payne, 791 S.W.2d at 19). 69 Payne, 501 U.S. at Id. at See Myers & Greene, supra note 55, at U.S (2008). 73 Kelly, 129 S.Ct. 564 (2008) (Stevens, J., dissenting) & Kelly, 129 S.Ct. 567 (2008) (Breyer, J., dissenting). 74 Kelly, 129 S.Ct. 564 (2008) (Stevens, J., dissenting). 75 Id. 12

14 case, People v. Zamudio, the prosecution presented a video containing 118 photographs of the victims at various stages of their lives, including childhood and early years of marriage. 76 Justice Stevens expressed concern that the state and federal courts remained unguided in their efforts to police the hazy boundaries between permissible... and impermissible victim impact evidence. 77 Additionally, Justice Stevens believed, in both Kelly and Zamudio, that both the form of the evidence and the substance of the evidence were impermissible. 78 Justice Breyer echoed Justice Stevens concerns in wanting to draw a line between what is, and is not constitutionally admissible in this area. 79 Both Breyer and Stevens believed that the Court has a duty to consider what reasonable limits should be placed on [victim impact evidence s] use, 80 and could accomplish this by granting certiorari. 81 IV. Death-Qualified Jury One important aspect of a capital case is the presiding jury. What separates a capital case jury from a non-capital case is that jurors in the former must be death-qualified. 82 Jurors in a capital-case must demonstrate, through voir dire, that they will be able to apply the law during the sentencing phase and that their feelings on the death penalty will not interfere in their decision making Id. 77 Id. at Id. at 567. ( But in each of these cases, the evidence was especially prejudicial... it was not probative of the culpability or character of the offender or the circumstances of the offense... As these cases demonstrate, when victim impact evidence is enhanced with music, photographs, or video footage, the risk of unfair prejudice quickly becomes overwhelming. ) 79 Kelly, 129 S.Ct. at 568 (Breyer, J., dissenting). 80 Kelly, 129 S.Ct. at 567 (Stevens, J., dissenting) 81 Kelly, 129 S.Ct. at 568 (Breyer, J., dissenting). 82 See Witherspoon v. Illinois, 391 U.S. 510 (1968). 83 See Lockhart v. McCree, 476 U.S. 162, (1986). 13

15 Death-qualifying has been designed and approved by the Supreme Court as serving the State s concededly legitimate interest in obtaining a single jury that can properly and impartially apply the law to the facts of the case at both the guilt and sentencing phase of the trial. 84 This interest allows the State to then exclude potential jurors who are unable to comply with this interest. 85 However, the State cannot exclude jurors simply for being opposed to the death-penalty. 86 Understanding what constitutes a death-penalty jury is important when looking at both the research on victim impact evidence and potential ways to reform the subject. The importance of death-qualification arises during the initial formation of the sample population. Additionally, it also arises when looking at what subjects can and cannot be a part of a capital case jury. By understanding this, researchers must be willing to limit their population to only death-qualified subjects in order to maintain an accurate and applicable conclusion. V. Recent Research on Victim Impact Evidence and What to Conclude Multiple empirical studies have been done on the issue of victim impact evidence on a jury. 87 These studies have resulted in a variety of conclusions; some finding an effect on the sentencing recommendation 88 while others finding no effect. 89 The findings and methodologies 84 Id. 85 Id. at Witherspoon, 391 U.S. at See, e.g., Ray Paternoster & Jerome Deise, A Heavy Thumb on the Scale; the Effect of Victim Impact Evidence on Capital Decision Making, 49 CRIMINOLOGY (2011); Bryan Myers & Jack Arbuthnot, The Effects of Victim Impact Evidence on the Verdicts and Sentencing Judgments of Mock Jurors, 29 J. OFFENDER REHABILITATION (1999). 88 Myers & Arbuthnot, supra note 87. Myers & Arbuthnot s sample included 416 psychology students who were not death-qualified. The students were then randomly divided into juries ; these juries differed in conditions. One jury was shown victim impact evidence and strong evidence of the defendant s guilt. The second jury was shown victim impact evidence, but was presented with weak evidence of the defendant s guilt. The third jury was shown no victim impact evidence and strong evidence of the defendant s guilt. The final jury was shown no victim impact evidence and weak evidence of the defendant s guilt. After watching an hour long video of a murder trial, the jurors deliberated whether the defendant was guilty and what sentence should be imposed. The study found 14

16 of these studies are important to the future of victim impact evidence. If there are legitimate concerns as to the fairness of the sentencing phase when victim impact evidence is included, then the state and federal governments should consider altering or reforming how victim impact evidence is included in a trial. A. Methodology Concerns The methodology is important to consider as well; many studies report their conclusions based on variables that do not accurately replicate what a death-penalty jury will involve. 90 By understanding the appropriate variables that need to go into a study on victim impact statement, future research can come closer to replicating the death-penalty jury experience, therefore garnering more accurate and applicable results. 91 The methodology of a victim impact evidence study is critical towards finding an accurate, and more importantly, applicable conclusion. One of the main flaws several studies commit is the absence of a qualified or applicable death-penalty jury. This can be seen through a relationship between viewing victim impact evidence and imposing a death sentence. 67% of jurors who voted for guilt sentenced the defendant to death if they were exposed to victim impact evidence, compared to 30% who voted for death with no victim impact evidence exposure. Paternoster & Deise, supra note 87, at Brian Myers et al., Victim Impact Statements and Mock Juror Sentencing: The Impact of Dehumanizing Language on a Death Qualified Sample, 22 AM. J. FORENSIC PSYCHOL (2004). Myers et al., examined a randomly selected sample who were eligible for jury duty in California and death-qualified. The jurors were given separate written summaries of the guilt phase and the sentencing phase. Some statements included victim impact evidence while others omitted the evidence. Additionally, four other experimental conditions were based on the presence of language in the VIE that humanized the victim, dehumanized the defendant, humanized the victim and dehumanized the defendant, or neither humanized the victim nor the defendant. Paternoster & Deise, supra note 87, at 137. The study found no relationship between reading victim impact evidence and the sentencing result. Interestingly, the study also found that a death sentence was least likely when the victim impact evidence humanized the victim and dehumanized the defendant. 90 Of course, no study will accurately mimic a death-penalty sentencing phase and its environment. However, the absence of certain key variables from a number of studies sheds doubts on their applicability to the criminal justice system. 91 One potential caveat is the research s use in the courts. In Lockhart v. McCree, 476 U.S. 162 (1986) Justice Rehnquist criticized three studies samples on the subject of death-qualified jurors as randomly select[ing] from some segment of the population rather than using actual jurors sworn under oath to apply the law to the facts of an actual case involving the fate of an actual defendant. Lockhart, 476 U.S. at 171. Indeed, the Court then noted that it would have serious doubts about the values of these studies in predicting the behavior of actual jurors. Id. 15

17 two procedures: 1) The use of a homogenous population 92 and 2) the failure to have a deathqualified jury. 93 These omissions may matter more in research on the death penalty. 94 This is for several important reasons. First, a homogenous population of young, adult, college-educated students may... respond differently to grief than older, more experienced people. 95 This could relate to prior experiences with death, loss, and life in general. By putting twelve college students on a panel and calling it a jury, these studies are oversimplifying what constitutes a death-penalty jury.in fact, some states excuse full-time students from participating on a jury, 96 and even more allow students to defer, 97 making them ineffective samples of a death-penalty jury. Furthermore, the motivation for participating for class credit lacks the moral and emotional difficulties and high-stake consequences that come from sitting on an actual deathpenalty jury, where the life of the defendant is at stake. As Myers and Greene noted, its [the concern that the decisions of mock jurors have no real consequence] importance is magnified 92 See, e.g., Judith Platania & Garrett L. Berman, The Moderating Effect of Judge s Instructions on Victim Impact Testimony in Capital Cases, 2 APPLIED PSYCHOL. CRIM. JUST Bryan Myers, Steven Jay Lynn & Jack Artbuthnot, Victim Impact Testimony and Juror Judgments: The Effects of Harm Information and Witness Demeanor, 22 J. APPLIED SOC. SCI (2002) (using 293 undergraduate students); Myers & Arbuthnot, supra note 87 (using 416 psychology students participating for academic credit); James Luginbuhl & Michael Burkhead, Victim Impact Evidence in a Capital Trial: Encouraging Votes for Death, 20 AM. J. CRIM. JUST (1995) (using undergraduate students). 93 See, e.g., Myers & Arbuthnot, supra note 87; Edith Greene, Heather Koehring & Melinda Quiat, Victim Impact Evidence in Capital Cases: Does the Victims Character Matter?, 28 APPLIED SOC. PSYCHOL (1998). 94 Myers & Greene, supra note 55, at Id. 96 Exemptions from Jury Service, TX. CTS. ONLINE, (last visited Apr. 12, 2013) (allowing persons enrolled and in actual attendance at an institution of higher education to be excused). 97 See, e.g., Frequently Asked Questions, U.S. DISTRICT CT., DISTRICT OF S.C., (last visited Apr. 12, 2013) (informing students they may be deferred for later service and that if still in school, they may be deferred again). 16

18 when the decisions involve life and death, 98 and that [h]ypothetical judgments of this ultimate decision are obviously made less carefully and less thoroughly than real sentencing decisions. 99 Second is the lack of screening subjects to confirm whether they are death-qualified. Studies that fail or omit to perform this action lose the opportunity to create a sample that comes close to an actual death-penalty jury. This is primarily due to the inclusion of what could possibly be Witherspoon-excludables in the jury. 100 By potentially including persons who would normally be excluded from a capital case jury, and then exposing them to victim impact evidence, these studies are gathering information from people who are simply not relevant to the current capital case sentencing structure. This information would only serve to taint the deliberation of the other jurors and, thus, the overall results. Studies on the emotional impact of victim impact evidence in capital cases need to make sure that their methodology comes as close as possible to replicating an actual trial. By doing this, researchers can make their results more applicable to the real world and would have stronger arguments as to how their conclusions should influence current capital case policies. Though some aspects of a real jury would be difficult to replicate, particularly the lack of realworld consequences, the other methodological issues brought up can be resolved by altering the population used in the studies. A recent study by Ray Paternoster and Jerome Deise implemented these alterations; this Paper will now look into the procedures and results of this study. 98 Myers & Greene, supra note 55, at Id. 100 JAMES J. GOLBERT, ELLEN KREITZBERG & CHARLES H. ROSE III, JURY SELECTION: THE LAW, ART, AND SCIENCE OF SELECTING A JURY 7:52 (2012) (noting the unlimited amount of causes available to attorneys during voir dire if a potential juror s attitude towards the death penalty would be unable to follow the law and deliver a death sentence or consider other sentencing options). 17

19 B. Paternoster & Deise (2011) In 2011, Ray Paternoster of the University of Maryland-College Park, and Jerome Deise of the University of Maryland-Baltimore School of Law, published a study focusing on victim impact statements and their effect on capital-case sentencing. 101 After testing their hypothesis on a randomly selected sample, Paternoster and Deise concluded that those who viewed victim impact testimony perceived significantly more harm and suffering inflicted on the victim s family, a greater emotional loss inflicted on the family by the murder, and were significantly less likely to think that the victim s family was coping well with the murder. 102 The study s sample consisted of adults randomly selected from a juror registration list from a large city in the Mid-Atlantic. 103 Those selected for the study were eligible to serve as jurors for the Mid-Atlantic city and were death-qualified The case presented to these jurors involved the death of a police officer. 106 After gathering their sample population, Paternoster and Deise provided the jurors with a description of the crime including facts brought out in the guilt phase The jurors were 101 Paternoster & Deise, supra note Id. at Id. at Id. at 142. To make sure the jurors would be death-qualified, those who agreed to participate were asked a series of questions about the death penalty and whether their feelings on the death-penalty would prevent them from following the law in imposing a death sentence or considering other sentencing options. Jurors were also asked other standard voir dire questions such as whether they had heard the case, already formed an opinion, and whether they were employed by or were immediately related to an officer of law enforcement or the judicial system. Id. at 142 n.7. Thirty-two percent of the subjects were disqualified after completing the voir dire. Id. 105 Of those subjects chosen, there was no statistical difference between the two groups demographics (marital status, race, gender, education, income, and mean age). See id. at 146, Table Id. at 142 n Id. at This in itself might be a problem for studies. Capital case juries determine both the guilt and sentence of the defendant. Because of their presence in the guilt phase, the jurors may already be exposed to elements of the victim s life or the harm caused to his family through other forms of evidence. This would seemingly lessen the impact a piece of evidence would have when reintroduced in the penalty phase (or newly introduced for a jury not part of the guilt phase). 18

20 then told that the suspect was convicted of capital murder. 109 After this, the jurors watched a three and a half hour long video of the actual penalty phase of the trial. 110 The population was randomly assigned to either be exposed to victim impact evidence through the penalty phase testimony or watch the penalty phase testimony with victim impact evidence omitted. 113 Afterwards, the jurors filled out a questionnaire by themselves asking about their attitudes towards the defendant, victim, and victim s family and what sentence they would have imposed in the case if they had been on the jury. 114 The latter s answer choices were death, life without parole, and a life sentence. 115 At no point during the questionnaire, which was under a time limit of 45 minutes, 116 did the jurors deliberate with one another. 117 Paternoster and Deise seemed to have remedied this by including in the three page description handed to jurors the facts brought out during the actual guilt phase of the trial. However, the description contained no information about the family life of the victim. Id. at 155. Further, this removal from the trial takes away the jury s experience of examining the credibility of witnesses, the arguments of lawyers, and the impact of evidence. This only further exacerbates the lack of real consequences concern that plagues victim impact evidence studies. 109 Paternoster & Deise, supra note 87, at Id. 111 Seventy-two subjects. Id. 112 The victim impact statement in this case included testimony with respect to the character of the victim, noting the victim s love of God, of being a father, his family, his friends, and his career. Id. at 144. The statement also included testimony on the impact of the murder on family members, detailing the victim s daughter in particular. Id. Finally, the statement included testimony asking the jury for a just punishment for an unjustifiable death. Id. 113 Sixty-two subjects. Id. at Id. 115 Id. at Id. This raises another problem with this study: the lack of applicability to the real world. By maxing out the time to 45 minutes, the study removed itself from further from replicating a real life capital jury. Jurors need the opportunity, particularly in a death-penalty trial, to weigh all the options presented to them by both the prosecution and defense. Given that the subjects were only previously exposed to a three page description of the guilt phase and a three-and-a-half hour long video of the penalty phase, the jurors would only be minimally exposed to the case when compared to a real world capital case. 117 Id. See the above criticism, which now adds on the lack of deliberation. Because this study intended to see the effects of victim impact evidence on jurors, it s understandable why the researchers chose this method. However, one juror does not decide the fate of the defendant. It s up to all twelve jurors to sentence the defendant. The only impact one juror could have in this scenario would be to prevent the use of the death penalty through holding out, rather than being in favor of it. 19

21 Along with the above, the study also calculated the emotional impact of the victim impact evidence. The subjects were asked to rate their emotions on a 1-10 scale. 118 In addition, the subjects were also asked questions regarding how angry, sad, vengeful, and confused they felt about the murder of the victim. 119 Paternoster & Deise also attempted to measure the amount of sympathy and empathy the subjects felt towards the victim and his family. 120 Using a 4-point scale, Paternoster & Deise gathered their data by having the jurors answer questions describing how sympathetic they personally felt about the murder, the sympathy they felt towards the victim, and his family. 121 Empathy towards the victim and his family was also measured by asking the subjects if they could imagine being like the victim, imagine themselves in the victim s situation, and imagine themselves in the situation of the victim s family and/or friends. 122 The final variables tested in this study were the extent to which subjects viewed the victim [and his family] favorably and viewed the defendant unfavorably. 123 Paternoster & Deise developed four hypotheses to use in their study. 124 The first hypothesis tested whether viewing victim impact evidence would make [the subjects] more angry and vengeful and would make them feel greater sympathy and empathy for the victim, 118 Id. at 144. Subjects were asked to rate the extent to which they felt determined, attentive, alert, inspired, active, afraid, nervous, upset, ashamed, and hostile. Id. 119 Id. 120 Id. 121 Id. at Answers on the 4-point scale could range from very well to not at all. 122 Id. at 145. Answers on the 4-point scale ranged from yes, very much to no, not at all. 123 Id. at 145. For the former, questions were asked using key words such as kind, generous, loving, caring, likeable, loved by family, and a wonderful future. The latter consisted of terms including vicious, dangerous, blameworthy, and someone with no conscience. All of these were asked before the subjects determined which sentence they would impose. Id. at Id.at

22 his family, and less favorable perceptions of the offender. 125 The results of the study indicated no difference between those who were exposed to victim impact evidence and those who were not in categories involving neutral emotions. 126 There was also no statistical significant disparity between the two groups regarding the emotion of feeling ashamed. 127 However, the study did find statistically significant differences between the two groups in the categories of feeling upset 128 and hostile Those who viewed victim impact evidence were also significantly more likely to report that they felt angry... and vengeful. 131 Using independent sample t tests, the study also calculated the levels of sympathy, empathy, and juror discernments on the victim and the offender. 132 The study concluded that the group exposed to victim impact evidence was significantly more likely to feel sympathy towards the victim and his family while also seeing the defendant in less favorable terms. 133 The study also found statistically significant differences between the willingness of the two groups to impose a death sentence. 134 The statistics also indicate a stronger willingness by the control group to impose a life or life without parole sentence compared to the victim impact 125 Id. at Id. at 147. Neutral emotions include determined, attentive, alert, inspired, active, and nervous. Afraid is also on the neutral list, though it is unclear what exactly the subject would be afraid of (the defendant? The process as a whole? Their ability to judge?). 127 Id. Ashamed seems to be a vague term given that there is no clear view as to what the subject would be ashamed of. (Statistics for ashamed are 35% for those who viewed VIE vs. 21% for those who did not.) 128 Id. 49% for those who viewed VIE vs. 30% for those who did not; x 2 =4.767, p<.001. Id. 129 Id. 71% for those who viewed VIE vs. 25% for those who did not; x 2 =27.748, p<.001. Id. 130 These are two results we would want to avoid, given the confrontational and potentially prejudicial choices in sentencing that could be imposed on the defendant. 131 Id. For anger, the statistics were 84% for those who viewed VIE vs. 24% for those who did not; x 2 =56.837, p<.001. For vengeance, the statistics were 78% for those who viewed VIE vs. 22% for those who did not; x 2 =49.398, p<.001). These statistics should be carefully examined and replicated, as VIE s potential to draw out emotions such as anger and vengeance should be a serious cause of concern. 132 Id. at Id. Table Id. at % of those who were exposed to VIE would have voted for death compared to 17.5% of those not exposed to VIE; x 2 =28.270, p<

23 exposure group. 135 The willingness to sentence the defendant to death was also found to have a significant relationship with the juror having a positive emotions towards the victim. 136 Paternoster & Deise s conclusions align with respect to the fact that identified victims generate more sympathy/empathy, which leads to greater generosity and other efforts to help the victim, 137 or, in essence, sentence a defendant to death. This psychological phenomenon has been referred to as the identifiable victim effect. 138 Despite the criticisms on the methods used to gather the sample population discussed earlier in this Paper, Paternoster & Deise come close to replicating how a death-penalty jury would be composed. 139 Because of the qualifications of these jurors, their responses to the study s questions should be greatly considered when discussing how to suggest policy reform regarding victim impact evidence. The results of this study are incredibly concerning. By finding a strong and significant relationship between emotions of anger and vengeance towards the defendant and a willingness to impose a death sentence, the inflammatory and potentially unduly prejudicial nature of victim 135 Id. at 149, Figure Id.at 150. Using a chi-square test for the categorical variables (anger, vengeance, hostility, and willingness to vote for the death sentence), the study found chi-squares of (p<.001), (p<.001), (p<.05) for anger, vengeance, and hostility respectively. The study then used a bivariate logistic regression model to estimate the relationship between the decision to impose a death sentence and the sympathy and empathy felt towards the victim or his family. The model estimated the relationship between sympathy for the victim and willingness to impose a death sentence to be b=.267, p<.001, between empathy for the victim and willingness to impose a death sentence to be b=.232, p<.001, between perceiving the victim in a more favorable light and willingness to impose a death sentence to be b=.068, p<.01, between the perceiving the victim s family in a more favorable light and willingness to impose a death sentence to be b=.136, p<.001, and between perceiving the offender in a less favorable light to be b=.089, p<.01. Id. 137 Id. at Thomas C. Schelling, The Life You Save May Be Your Own, in PROBLEMS IN PUBLIC EXPENDITURE ANALYSIS (Samuel B. Chase ed., The Brookings Institution) (1968). 139 Paternoster & Deiser themselves do admit that future researchers should allow for deliberation and attempt to manipulate the amount of victim impact evidence presented through video in order to gain insight into the jurors thinking and feelings. Id. at

24 impact statements emerges. When victim impact evidence has this potential effect on jurors, especially when the death penalty is involved, a unique punishment in the United States, 140 its current use must be seriously questioned and alternate solutions to this problem must be discussed and potentially implemented. VI. Potential Victim Impact Evidence Reform When looking at the results of the Paternoster & Deise study, the idea of reforming the current use of victim impact evidence must be considered. If such potentially prejudicial and inflammatory material makes its way into the jury room, it would not be a harmless error, 141 but rather a grievous one. To address the potential unduly prejudicial aspects of victim impact evidence, this Paper will offer three potential reforms to this procedure. The goal of these suggestions are to balance the line between victims rights and defendants right to a fair trial by lessening the emotional and possibly prejudicial effect of victim impact evidence. Victims of crime deserve the option of telling their story in court. A criminal justice system that does not recognize the life of the victim or allow testimony as to the actual harm to the victim s family is a system not worth preserving. However, this recognition cannot come at the cost of the defendant and his right to a fair trial free from undue prejudice. The following three suggestions will serve to minimize or balance the prejudicial nature of victim impact evidence. A. Shift the Victim impact Evidence and Testimony to Post-Verdict Proceedings 140 Furman v. Georgia, 408 U.S. 238, 286 (1972). 141 See, e.g., Wrinkles v. State, 749 N.E.2d 1179, 1196 (Ind. 2001). 23