A victim impact statement (VIS) gives crime victims, or their survivors in the case of homicides, the opportunity to tell the judge or jury how the crime has affected their lives. Depending on the crime and the jurisdiction, a VIS may be offered in evidence during the trail itself. For example, jurisdictions that have the death penalty usually allow victim impact evidence during the punishment phase of the trial in order to assist the jury in determining whether this particular defendant is deserving of society’s most severe sanction. Victim impact evidence is also often offered during a sentencing hearing, which occurs after the verdict has been rendered and the trial has concluded. For example, burglary victims may wish to tell the court about how their fear of being alone since their home was burglarized has impacted upon their quality of life.
A VIS serves a variety of purposes. These purposes are basically informative or expressive in character. For example, VIS evidence provides information to the prosecutor about the crime that can be used in closing arguments or at sentencing hearings to support the state’s theory of the case or the state’s sentencing preferences. These statements also provide the court or jury with “qualitative” information about the seriousness of the crime and the culpability of the defendant, which can be considered in imposing an appropriate sentence. They also give the court qualitative information about the effect of the crime on the victim and the victim’s resulting needs, which may be relevant to assessing restitution or referring the victim to various victim service providers.
In addition, the process of offering a VIS gives victims a chance to express themselves in a public forum about their suffering. They have a chance to confront the perpetrator in a safe environment and tell the perpetrator how she or he harmed them. A VIS also provides the victim with a meaningful opportunity to participate in the sentencing process and to influence the outcome.
Victim impact statements are controversial because they implicitly indicate that some victims are more deserving of the law’s protection than other victims. Valuing some victims’ suffering more than others is in tension with the idea of equality before the law and flies in the face of the notion that U.S. justice is blind. On the other hand, many people believe that sentencing must be proportionate to be just, and evaluating the actual magnitude of the harm inflicted by the defendant is an important factor in achieving proportionality.
Evolving Legal Status of Victim Impact Statements
A certain amount of victim impact evidence has always been admissible during a criminal trial. Indeed, the prosecution is often required to prove that some specific harm befell the victim as an element of the charged offense. For example, serious physical injury involving protracted loss or impairment of a bodily function is a typical element of an aggravated assault charge. Victims have frequently provided evidence on this element through their testimony. The propriety of victims testifying about the crime’s impact upon them insofar as that impact relates to an element of the charged offense has never been controversial. By contrast, testimony about harm suffered by the victim not directly relevant to establishing some element of the charged offense has been the source of considerable ongoing concern and controversy.
The courts typically confront questions regarding the admissibility of this more controversial type of victim impact evidence in the context of victim impact statements offered during the punishment phase of death penalty cases. U.S. Supreme Court jurisprudence on this point has changed significantly. In the late 1980s, the Supreme Court considered two cases, Booth v. Maryland and South Carolina v. Gathers. In Booth the jury was shown a presentence report that in accordance with Maryland law included a VIS, which described the positive personal characteristics of the victims, the debilitating emotional impact of the crimes on the family, and included the family members’ opinions about the heinousness of the crime and the defendant’s inability to be rehabilitated. The court in Booth concluded that introduction of this evidence at the sentencing phase violated the defendant’s Eighth Amendment rights because the information was irrelevant and created a constitutionally unacceptable risk that the jury might impose the death penalty in an arbitrary and capricious manner. Following Booth, the Supreme Court in Gathers found that a prosecutor’s comments in closing argument about the victim’s religiosity, vulnerability, and patriotism were irrelevant and prejudicial and were similarly in violation of the defendant’s Eighth Amendment rights.
In 1991, just two years after the court’s decision in Gathers, the Supreme Court reconsidered victim impact evidence in Payne v Tennessee and reached a very different conclusion. In Payne, the prosecutor made an emotional plea in closing argument that focused on the pain of the 3-yearold survivor of a home invasion that left him seriously injured and his mother and baby sister mutilated and dead. The survivor’s grandmother was also allowed to testify about how the little boy still came to her crying about his mother and little sister multiple times every week.
In overruling Booth and Gathers, the new, more conservative majority on the court held that the Eighth Amendment does not bar a jury from considering a victim’s personal characteristics or the emotional impact of the murder on the victim’s family. Indeed, the Payne decision’s majority explicitly found that such evidence was an important factor in determining the appropriate punishment. The court went on to note that defendants are allowed great latitude in presenting evidence in mitigation about their own unique attributes and circumstances, and that the state should be afforded a similar opportunity to personalize the victim. The Payne majority flatly rejected the notion that the admission of victim impact evidence permits a jury to find that defendants whose victims were assets to their community are more deserving of punishment than those whose victims are perceived to be less worthy. Instead, the Payne majority asserted that victim impact evidence is not usually offered to encourage comparative judgments of that kind. Moreover, the court noted if victim impact evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, the Fourteenth Amendment’s due process clause provides a mechanism for relief.
The court’s holding in Payne was consistent with and was no doubt informed by a larger legal trend focusing on victims’ rights. In the 1990s, there was a rejection of what was perceived as the excesses of the due process revolution of the 1960s, which had been spearheaded by the Supreme Court under Chief Justice Earl Warren and had focused on expanding defendants’ legal protections under the U.S. Constitution. Instead, public discourse and political attention focused on the plight of victims and the ways in which the system mistreated and ignored victims. The victims’ rights movement was successful in enacting victims’ bills of rights in most jurisdictions, culminating in the federal Crime Victims’ Rights Act, which was enacted in 2004.
Victims’ rights legislation usually requires the prosecution to notify victims about relevant stages in the proceedings, and affords victims the right to appear at the defendant’s sentencing hearing and offer evidence about how the crime has affected their lives. These laws also frequently accord victims the right to speak at parole hearings as well. In some jurisdictions, the victims are permitted to give their opinion about what sentence they deem to be appropriate as part of the VIS. In other jurisdictions, express sentence recommendations by victims are prohibited, but victims may discuss how the crime has affected them, leaving it to the judge or jury to factor in that information when punishment is imposed.
Impact of Victim Impact Statements
A significant body of social science research on the impact of victim impact statements on juries has emerged in recent years in response to the increasing use of such evidence during sentencing hearings and other proceedings. While the results of this research are mixed, there are a number of studies which suggest that exposure to victim impact evidence increases hostility and anger toward the defendant and sympathy and empathy for the victim. Some of these studies indicate that the emotional reaction to victim impact evidence significantly increases sentence severity and reduces the likelihood of parole, although there are studies that report minimal or no statistically significant findings regarding the effects of victim impact evidence.
In a recent study, Ray Paternoster and Jerome Deise attempted to overcome some of the limitations of prior studies by using a random sample of eligible jurors who were death-qualified and watched a lengthy video of the actual penalty phase testimony in a real capital case. These “jurors” were then randomly assigned to view testimony with victim impact evidence retained or edited out. After viewing the penalty phase video, subjects answered questions about their emotional state, their attitudes toward the defendant and the victims, and the sentence they would impose. Paternoster and Deise found that people who watched the victim impact evidence were more likely to report feeling angry and vengeful toward the defendant and sympathetic and empathetic toward the victims. Those who watched victim impact evidence were nearly four times more likely to report that they would have imposed the death penalty than were participants who did not view the victim impact evidence.
Arguments in Favor and Against Victim Impact Statements
Proponents of victim impact statements often argue that being able to participate in the sentencing process by telling the court how the crime affected them is therapeutic for victims. It helps them heal by helping them to regain a sense of empowerment and justice for their suffering. Proponents also argue that the quality of justice is improved when the harm to the victim is factored into the sentencing decision. Some even suggest that victim impact statements may assist with offender rehabilitation by helping defendants to realize the harm they have caused and to feel genuine remorse.
However, some opponents of victim impact statements reject the Supreme Court’s assertion that victim impact evidence does not encourage qualitative comparisons between the relative worth of the defendant’s and the victim’s life; they argue instead that victim impact evidence is explicitly designed to do just that. Prosecutors offer such evidence, it is argued, to induce jurors to feel sympathy and rage, which they hope will be expressed through infliction of the death penalty or other severe sanction. Juries respond emotionally and not rationally, which results in too much severity and arbitrary and capricious infliction of punishment.
It is even argued that use of victim impact evidence may place prosecutors in an ethically compromising position. Defense attorneys’ primary ethical duty is to zealously represent their clients. While they are prohibited from suborning perjury or otherwise misleading the court, they are encouraged, if not required, to exploit any advantage for their client. Prosecutors, by contrast, have a duty to see that justice is done. Prosecutors are required to be fair in their dealings with defendants. For example, prosecutors are required to turn over exculpatory evidence to the defense, but defense attorneys do not usually have a duty to turn over inculpatory evidence. Use of emotionally charged victims’ statements like those at issue in Payne arguably violates the prosecutor’s duty of neutrality and fair dealing.
A number of commentators have opposed the use of victim impact evidence at parole hearings. The opposition to this practice rests on the premise that the parole decision should be related to whether the defendant has been successfully rehabilitated through the correctional process and that victims really have no basis for offering an assessment of this. Victims usually have no correctional expertise nor are they familiar with the defendant’s institutional record; thus, it is argued, their opinions regarding the appropriateness of parole cannot be regarded as informed or informative.
- Booth v. Maryland, 482 U.S. 496 (1987).
- Lawrence, Elijah. “Victim Opinion Statements: Providing Justice for Grieving Families.” Journal of Law and Family Studies, v.12/2 (2010).
- Myers, Bryan, Allison Roop, Deborah Kalnen, and Andre Kehn. “Victim Impact Statements and Crime Heinousness: A Test of the Saturation Hypothesis.” Psychology, Crime & Law, v.19 (2013).
- Paternoster, Ray and Jerome Deise. “A Heavy Thumb on the Scale: The Effect of Victim Impact Evidence on Capital Decision Making.” Criminology, v.49 (2011).
- Payne v Tennessee, 501 U.S. 808 (1991).
- Roberts, Julian V. “Listening to the Crime Victim: Evaluating Victim Input at Sentencing and Parole.” Crime and Justice, v.38 (2009).
- Roberts, Julian V. “Victim Impact Statements and the Sentencing Process.” Criminal Law Quarterly, v.47 (2003).
- Robinson, Paul H., Sean E. Jackowitz, and Daniel M. Bartels. “Extralegal Punishment Factors: A Study of Forgiveness, Hardship, Good Deeds, Apology, Remorse, and Other Such Discretionary Factors in Assessing Criminal Punishment.” Vanderbilt Law Review, v.65 (2012).
- South Carolina v. Gathers, 490 U.S. 805 (1989). van Merwe, Annette. “Addressing Victim Harm: The Role and Impact of Reports.” Thomas Jefferson Law Review, v.30 (2008).
- Wallace, Megan M. “The Ethical Considerations of Defense Strategies When Confronted With a Victim-Impact Statement—Give us Dirty Laundry?!” Thomas M. Cooley Law Review, v.13 (1996)
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