NINTH CIRCUIT CAPITAL PUNISHMENT HANDBOOK - 2006
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Chapter 4: Capital Punishment Handbook: Sentencing Phase Issues

        4.3  Victim Impact Testimony

303.10 Death Penalty: Victim Impact As Sentencing Factor From 1987 until 1991, the Supreme Court maintained the position that the introduction of victim impact evidence in the sentencing phase of a capital trial violated the Eighth Amendment. Booth v. Maryland, 482 U.S. 496 (1987); South Carolina v. Gathers, 490 U.S. 805 (1989). However, in 1991, the Court overruled Booth and Gathers. Payne v. Tennessee, 501 U.S. 808 (1991). Payne held that the Eighth Amendment erects no per se bar against the admission of victim impact evidence relating to a victim’s personal characteristics and the emotional impact on the victim’s family. Thus, such evidence is admissible at capital sentencing if the state legislature chooses to permit it. However, under Payne, a due process violation arises if victim impact evidence is “so unduly prejudicial that it renders the trial fundamentally unfair.”

Payne v. Tennessee, 501 U.S. 808 (1991) (holding Eighth Amendment erects no per se bar against admission of victim impact evidence and prosecutorial argument on the subject at capital sentencing). 

South Carolina v. Gathers, 490 U.S. 805 (1989) (extending Booth, holding prosecutor’s description of victim’s personal qualities based on items found in victim’s possession was not related directly to circumstances of the crime and therefore inadmissible at capital sentencing, under Booth), overruled by Payne v. Tennessee, 501 U.S. 808 (1991).

Booth v. Maryland, 482 U.S. 496 (1987) (holding Eighth Amendment bars introduction of statement at capital sentencing hearing because irrelevant to sentencing decision and creates risk of arbitrary and capricious imposition of death penalty), overruled by Payne v. Tennessee, 501 U.S. 808 (1991).

Sager v. Maass, 84 F.3d 1212 (9th Cir. 1996) (finding ineffective assistance of counsel where petitioner’s attorney introduced victim impact testimony for purpose of showing victim’s signature, which could easily have been obtained by other means).

McKenzie v. Risley, 842 F.2d 1525, 1537–38 n.25 (9th Cir.) (finding, during Booth era, that strictures in Booth apply only to sentencing, not to decision to take case to trial; thus any consideration prosecution gives to family’s wishes in decision not to plea bargain is not Booth violation), cert. denied, 488 U.S. 901 (1988).

Bonin v. Vasquez, 807 F. Supp. 586 (C.D. Cal. 1992) (holding prosecutor’s statements regarding impact of murders on victims’ families constitutional and not unduly prejudicial under Payne).

Free v. Peters, 12 F.3d 700 (7th Cir. 1993) (holding petitioner not entitled to retroactive application of Booth because Booth is new rule under Teague; noting petitioner also cannot object to state’s retroactive use of Payne under Teague because Teague protects state’s interest in finality of criminal convictions, and thus only state may object to retroactive application of new rule to old case).

Kathryn E. Bartolo, Payne v. Tennessee: The Future Role of Victim Statements of Opinion in Capital Sentencing Proceedings, 77 Iowa L. Rev. 1217 (1992) (examining Payne and identifying difficulties in future use of victim impact evidence, concluding victim statements of opinion should not be allowed, and urging admission of victim impact evidence should not extend beyond limits in Payne).

Matthew V. Brammer, Note, Eighth Amendment No Longer Bars Victim Impact Statements Admission in Capital Sentencing Proceedings, 61 U. Cin. L. Rev. 261 (1992) (reviewing victim impact precedent and Payne, offering model for admission of such evidence).

Randall Coyne, Inflicting Payne on Oklahoma: The Use of Victim Impact Evidence During the Sentencing Phase of Capital Trials, 45 Okla L. Rev. 589 (1992) (analyzing and summarizing legal and practical issues and impact of Payne).

Craig E. Gilmore, Note, Payne v. Tennessee: Rejection of Precedent, Recognition of Victim Impact Worth, 41 Cath. U. L. Rev. 469 (1992) (tracing development of use of victim impact information at sentencing).

Jonathan H. Levy, Limiting Victim Impact Evidence and Argument After Payne v. Tennessee, 45 Stan. L. Rev. 1027 (1993) (arguing Payne failed to give adequate guidelines for using victim impact evidence at capital sentencing proceedings and attempting to fill gap by exploring post-Payne constitutional limitations on use of victim impact evidence and argument).

Elizabeth A. Meek, Note, Victim Impact Evidence and Capital Sentencing–A Casenote on Payne v. Tennessee, 52 La. L. Rev. 1299 (1992) (reviewing Payne, recommending states keep victim impact evidence out, especially in capital cases, because causes troubling results).

Michael Ira Oberlander, The Payne of Allowing Victim Impact Statements at Capital Sentencing Hearings, 45 Van. L. Rev. 1621 (1992) (arguing victim impact evidence should not be admissible at capital sentencing; reviewing victims’ rights movement, arguing system catering to victims’ “rights” when in conflict with defendants’ rights, is unconstitutional, and reviewing Payne and progeny).

David M. Paul, Note, Payne v. Tennessee: A Case of Precedents Forgotten, 54 U. Pitt. L. Rev. 893 (1993) (arguing Payne cannot be reconciled with Court’s death penalty jurisprudence).