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303.10 Death Penalty: Victim Impact As Sentencing Factor

    303.10.1 Victim Impact: Combined Limiting Instruction
    303.10.2 Victim Impact Limited To Rational, Rather Than Emotional, Response
    303.10.3 Victim Impact: Jury Must Not Consider Overly Emotional Evidence
    303.10.4 Victim Impact Not Aggravation -- Does Not Relieve Prosecution Of Burden Of Proving Death Qualification/Eligibility
    303.10.5 Victim Impact: Right Of Defendant To Present Negative Evidence Regarding Victim
    303.10.6 Improper For Victims To Expound On Appropriate Sentence For Defendant
    303.10.7 Victim Impact: Improper To Measure Relative Worth Of Defendant And Victim
    303.10.8 Victim Impact: Notice Requirement
    303.10.9 Victim Impact Limited To Victims Of Crimes Proven At Guilt Phase And Directly Related To The Capital Offense
    303.10.10 Victim Impact Limited To Circumstances About Which Defendant Was Aware
    303.10.11 Necessity Of Pre-Hearing In Limine Motion To Exclude Or Limit Victim Impact Evidence
    303.10.12 Jury Should Consider Opinion Of Victim Impact Witness That Defendant Should Not Be Executed
    303.10.13 Victim Impact: Irrelevant To Determination Of Aggravating Circumstances
    303.10.14 Victim Impact: Cautionary And Limiting Instruction
    303.10.15 Victim Impact: Tactical Considerations Before the Jury
    303.10.16 Victim Impact: Improper Characterization Of The Defendant

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PRACTICE NOTE: For a comprehensive discussion of victim impact evidence in capital cases, see Wayne A. Logan, Through the Past Darkly: A Survey of the Uses and Abuses of Victim Impact Evidence in Capital Trials, 41 Arizona Law Review 143 (Spring 1999). For litigation strategies, see Ellen Kreitzberg’s article, How Much Payne Will the Courts Allow?, which appears in the Jan/Feb 1998 edition of The Champion (NACDL).

See Capital Punishment Handbook [4.3a. Victim Impact Testimony: General Principles And Authorities].

See also generally, NCJIC 305.22.4 [Victim Impact].

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RATIONALE: A combined limiting instruction may be appropriate to assure the jury understands the limits of victim impact evidence.

POINTS AND AUTHORITIES: Given the powerful nature of victim impact testimony, cautionary and limiting jury instruction should be required under the federal constitutional guarantees to due process of law (5th and 14th Amendments to the United States Constitution), and the constitutional requirement of a reliable death penalty determination (5th, 8th and 14th Amendments to the United States Constitution). Indeed, the Supreme Courts of New Jersey and Tennessee have expressly required that a penalty jury must receive limiting instructions concerning victim impact evidence. (New Jersey v. Muhammad (NJ 1996) 678 A2d 164, 178; State v. Nesbit (TN 1998) 978 SW2d 872, 885.)

    The sample limiting instruction below addresses the following issues: (1) victim impact evidence is not a factor in aggravation but can only be considered, if at all, as part of the circumstances of the crime (see NCJIC 303.10.4 [Victim Impact Not Aggravation -- Does Not Relieve Prosecution Of Burden Of Proving Death Qualification/Eligibility]); (2) jurors must exercise great care not to attach any emotional response to victim impact evidence (see NCJIC 303.10.2 [Victim Impact Limited To Rational, Rather Than Emotional, Response]); and (3) the jury cannot consider any victim impact evidence other than personal characteristics of the victim that were known to the defendant at the time of the crime. (See NCJIC 303.10.10 [Victim Impact Limited To Circumstances About Which Defendant Was Aware].)

FEDERALIZATION: To federalize this request, click here. [Death Penalty Macro 13.10; 13.5; 13.13].

See Capital Punishment Handbook [4.3a. Victim Impact Testimony: General Principles And Authorities].

See also generally, NCJIC 305.22.4 [Victim Impact].

    The prosecution has introduced what is known as victim impact evidence. Victim impact evidence is not the same as an aggravating circumstance. Proof of an adverse impact on the victim's family is not proof of an aggravating circumstance. Rather, victim impact evidence may be considered, if at all, only to the extent you find it is part of the circumstances of the special circumstances murder conviction for which you are now determining whether to sentence defendant to death or life imprisonment without the possibility of parole. In assessing to what extent, if any, you should consider the victim impact evidence in your deliberations, you may not consider any victim impact evidence unless it was foreseeably related to personal characteristics of the victim that were actually known to the defendant at the time of the crime. Your consideration of the victim impact evidence must be limited to a rational inquiry into the culpability of the defendant, not an emotional response to the evidence.

[Source: Adapted from State v. Nesbit (TN 1998) 978 SW3d 872, 885; People v. Fierro (CA1991) 1 C4th 173, 243-54 [3 CR2d 426]; South Carolina v. Gathers (1989) 490 US 805, 806-810 [109 SCt 2207; 104 LEd2d 876].]

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RATIONALE: Due to the highly emotional nature of victim impact evidence, there is a danger the jury will allow the emotion of such evidence to overcome the rational evaluation of mitigation and aggravation required by the 8th Amendment. Therefore, a cautionary instruction limiting the role of emotion may be appropriate.

POINTS AND AUTHORITIES: In light of the inherent tendency of jurors to have strong emotional reactions to victim impact testimony, instructions which advise the jury of the limited purpose of victim impact evidence may be necessary. For example, in State v. Nesbit (TN 1998) 978 SW2d 872 the Tennessee Supreme Court held that trial courts should instruct capital jurors, inter alia, that "...your consideration must be limited to a rational inquiry into the culpability of the defendant, not an emotional response to the evidence." (Id. at 892.)  Similarly, the Supreme Court of New Jersey has held that a penalty jury receive limiting instructions concerning victim impact evidence. (New Jersey v. Muhammad (NJ 1996) 678 A2d 164, 178.)

    Additionally, the California Supreme Court has discussed several principles which limit consideration of the emotional response to victim impact evidence: (1) "[T]here are . . . limits on emotional evidence and argument"; (2) "[T]he jury must face its obligation soberly and rationally, and should not be given the impression that emotion may reign over reason"; (3) "[E]vidence and argument on emotional though relevant subjects . . . could provide legitimate reasons to sway the jury to show mercy or to impose the ultimate sanction"; and (4) "[I]rrelevant information or inflammatory rhetoric that diverts the jury's attention from its proper role or invites an irrational, purely subjective response should be curtailed." (People v. Edwards (CA 1992) 54 C3d 787, 834 [1 CR2d 696] [quoting People v. Haskett (CA 1982) 30 C3d 841, 864 [180 CR 640]].)

    In light of these principles an instruction should be considered which limits the jury's consideration of victim impact evidence.

    See also NCJIC 303.10.2 [Victim Impact Limited To Rational, Rather Than Emotional, Response].

FEDERALIZATION: To federalize this request, click here. [Death Penalty Macro 13.10; 13.13].

RESEARCH NOTES:

Will the Punishment Fit the Victims? The Case for Pretrial Disclosure, and the Uncharted Future of Victim Impact Information in Capital Jury Sentencing, J.F. Anderson, 28 Rutgers L.J. 369-434,. Winter 1997.

Wayne A. Logan, Through the Past Darkly: A Survey of the Uses and Abuses of Victim Impact Evidence in Capital Trials, 41 Arizona Law Review 143 (Spring 1999) [comprehensive discussion of victim impact evidence in capital cases].

Ellen Kreitzberg, How Much Payne Will the Courts Allow?, Jan/Feb 1998, The Champion (NACDL) [litigation strategies].

The Champion contains Russ Stetler, Working with the Victim's Survivors in Death Penalty Cases, June 1999 [explains the responsibility of every capital defense team, whether at trial or in postconviction proceedings, to approach the victim's survivors; offers some thoughts on how it can most effectively be accomplished].

See Capital Punishment Handbook [4.3a. Victim Impact Testimony: General Principles And Authorities].

See also generally, NCJIC 305.22.4 [Victim Impact].

    Evidence has been introduced for the purpose of showing the specific harm caused by the defendant's crime. Such evidence, if believed, was not received and may not be considered by you to divert your attention from your proper role of deciding whether defendant should live or die. You must face this obligation soberly and rationally, and you may not impose the ultimate sanction as a result of an irrational, purely subjective response to emotional evidence and argument.

    On the other hand, evidence and argument on emotional though relevant subjects may provide legitimate reasons to sway the jury to show mercy.

[See People v. Edwards (CA 1991) 54 C3d 787, 840-46 [1 CR2d 696].]

    The prosecution has introduced what is known a victim impact evidence. This evidence has been introduced to show the financial, emotional, psychological, or physical effects of the victim’s death on the members of the victim’s immediate family. You may consider this evidence in determining an appropriate punishment. However, your consideration must be limited to rational inquiry into the culpability of the defendant, not an emotional response to the evidence.

    Victim impact evidence is not the same as an aggravating circumstance.  Introduction of this victim impact evidence in no way relieves the State of its burden to prove beyond a reasonable doubt at least one aggravating circumstance which has been alleged. You may consider this victim impact evidence in determining the appropriateness of the death penalty only if you first find that the existence of one or more aggravating circumstances has been proven beyond a reasonable doubt by the evidence independent from the victim impact evidence, and find that the aggravating circumstance(s) found outweigh the finding of one or more mitigating circumstances beyond a reasonable doubt.

[Source: State v. Nesbit (TN 1998) 978 SW2d 872, 887-892.]

    The prosecution has introduced what is known as victim impact evidence. Victim impact evidence is not the same as evidence of a statutory aggravating circumstance. Introduction of victim impact evidence does not relieve the state of its burden to prove beyond a reasonable doubt the existence of a statutory aggravating circumstance. This evidence is simply another method of informing you about the alleged harm caused by the crime in question. To the extent that you find that this evidence reflects on the defendant’s culpability you may consider it, but you may not use it as a substitute for proof beyond a reasonable doubt of the existence of a statutory aggravating circumstance.

[See Turner v. State (GA 1997) 486 SE2d 839, 842; see also GEORGIA SUGGESTED PATTERN JURY INSTRUCTIONS - CRIMINAL CASES [Victim Impact Evidence] pp. 87-88 (B)(13)(c) (Carl Vinson Institute of Government, University of Georgia, 2nd ed. 2000).]

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PRACTICE NOTE: Legal challenges to the scope of victim impact evidence should seek exclusion of emotional evidence which is likely to provoke arbitrary or capricious action, in violation of the 5th, 8th and 14th Amendments. (See Godfrey v. Georgia (1980) 446 US 420, 428 [100 SCt 1759; 64 LEd2d 398]; Gardner v. Florida (1977) 430 US 349, 358 [97 SCt 1197; 51 LEd2d 393] ["It 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 caprice or emotion"]; Gregg v. Georgia (1976) 428 US 153, 189 [96 SCt 2909; 49 LEd2d 859] ["where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action"].) Counsel should also seek to exclude victim impact evidence where the probative value is exceeded by the danger of undue prejudice or the evidence will result in an undue consumption of time; and limit the quantity of victim impact evidence. As observed by the New Jersey Supreme Court in New Jersey v. Muhammad (NJ 1996) 678 A2d 164, 180:

    "The greater the number of survivors who are permitted to present victim impact evidence, the greater the potential for the victim impact evidence to unduly prejudice the jury against the defendant. Thus, absent special circumstances, we expect that the victim impact testimony of one survivor will be adequate to provide the jury with a glimpse of each victim’s uniqueness as a human being and to help the jurors make an informed assessment of the defendant’s moral culpability and blameworthiness. Further, minors should not be permitted to present victim impact evidence except under circumstances where there are no suitable adult survivors and thus the child is the closest living relative."

    In addition to the foregoing holding, which was articulated upon the invitation of the New Jersey Attorney General and county prosecutors in order to assure compliance with the federal constitutional guarantee of due process, the New Jersey Supreme Court defined the type of evidence which is properly admissible under victim impact. The testimony may include:

    "A general factual profile of the victim, including information about the victim’s family, employment, education, and interests. The testimony can describe generally the impact of the victim’s death on his or her family. The testimony should be factual, not emotional, and should be free of inflammatory comments or references." (Id. at 180.)

    Similar rules have been pronounced by the Supreme Courts of Illinois and Tennessee. In People v. Hope (IL 1998) 702 NE2d 1282, 1278, the Illinois Supreme Court interpreted the provisions of The Illinois Rights of Crime Victims and Witnesses Act to limit victim impact testimony to "a single representative who may be the spouse, parent, child or sibling of a person killed as a result of a violent crime." In State v. Nesbit (TN 1998) 978 SW2d 872, 889, the court held:

    "Generally, victim impact evidence should be limited to information designed to show those unique characteristics which provide a brief glimpse into the life of the individual who has been killed, the contemporaneous and prospective circumstances surrounding the individual’s death, and how those circumstances financially, emotionally, psychologically or physically impacted upon members of the victim’s immediate family. Of these types of proof, evidence regarding the emotional impact of the murder on the victim’s family should be most closely scrutinized because it poses the greatest threat to due process and risk of undue prejudice, particularly if no proof is offered on the other types of victim impact." (Id. at 891.) [Citations and footnote omitted.]

    The use of victims rights statutes to limit the type and scope of victim impact witnesses should not be discounted. Many states now have such statutes, and they frequently limit the type and number of victim impact witnesses who may be permitted to testify at sentencing hearings. For example, California Penal Code § 1191.1 provides in pertinent part that "the next of kin of the victim if the victim has died" may appear and testify "at the sentencing proceeding . . . ." While the statute was clearly enacted, inter alia, to assist victims in obtaining restitution, and not merely to assist the court in assessing the proper punishment, it may be argued that the statutory limitation on the type of witness–that is, to "the next of kin of the victim"–applies to the penalty phase of a capital trial because, after all, the penalty phase is a "sentencing proceeding" and the statute does not exclude capital trials from its reach. Further, it may be argued that the statute’s description of a singular victim impact witness, "or up to two of the victim’s parents or guardians if the victim is a minor," limits the prosecution to a single victim impact witness at penalty phase, just as the Illinois Supreme Court interpreted the similar provisions of the Illinois statute.

    See also NCJIC 303.10.2 [Victim Impact Limited To Rational, Rather Than Emotional, Response].

    Thank you to Michael Ogul, Assistant Public Defender, Alameda County, California, whose victim impact article provided much of the material in this discussion.

See Capital Punishment Handbook [4.3a. Victim Impact Testimony: General Principles And Authorities].

See also generally, NCJIC 305.22.4 [Victim Impact].

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RATIONALE: Without a cautionary instruction the jury may improperly assume that the victim impact evidence can serve as death qualifying aggravation.

POINTS AND AUTHORITIES: Victim impact evidence may not serve as a death qualifying aggravating circumstance. (See State v. Nesbit (TN 1998) 978 SW2d 872, 889.) Hence, the jury should understand that the victim impact evidence does not relieve the state of its burden of proving beyond reasonable doubt at least one aggravating circumstance. (See State v. Clabourne (AZ 1999) 983 P2d 748, 758 [statements from a victim’s family and friends concerning the impact of the crime should be considered to rebut mitigating evidence but are irrelevant to a determination of aggravating circumstances in capital sentencing]; State v. Mann (AZ 1997) 934 P2d 784, 792 [family letters urging death sentence not relevant to aggravation]; Evans v. State (MD 1994) 637 A2d 117, 132 [trial judge specifically told jury that victim impact evidence was not to be taken as aggravating circumstance]; Cargle v. State (OK 1995) 909 P2d 806, 827-29.)

FEDERALIZATION: To federalize this request, click here. [Death Penalty Macro 13.3].

Wharton’s Criminal Evidence (West, 15th ed. 1986) § 4:3, pp. 288-90 [prosecution argument on victim impact is permissible].

See Capital Punishment Handbook [4.3a. Victim Impact Testimony: General Principles And Authorities].

See also Capital Punishment Handbook [4.8.4 a. Burden Of Persuasion: General Principles And Authorities].

See also generally, NCJIC 305.22.4 [Victim Impact].

    The prosecution has introduced what is known as victim impact evidence. Victim impact evidence is not the same as evidence of a statutory aggravating circumstance. Introduction of victim impact evidence does not relieve the state of its burden to prove beyond a reasonable doubt the existence of a statutory aggravating circumstance. This evidence is simply another method of informing you about the alleged harm caused by the crime in question. To the extent that you find that this evidence reflects on the defendant’s culpability you may consider it, but you may not use it as a substitute for proof beyond a reasonable doubt of the existence of a statutory aggravating circumstance.

[See Turner v. State (GA 1997) 486 SE2d 839, 842; see also  GEORGIA SUGGESTED PATTERN JURY INSTRUCTIONS - CRIMINAL CASES [Victim Impact Evidence] pp. 87-88 (B)(13)(c) (Carl Vinson Institute of Government, University of Georgia, 2nd ed. 2000).]

    The prosecution has introduced what is known as victim impact evidence. Victim impact evidence is not the same as an aggravating circumstance. Proof of an adverse impact on the victim's family is not proof of an aggravating circumstance.

[See State v. Nesbit (TN 1998) 978 SW2d 872, 887.]

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    303.10.5    Victim Impact: Right Of Defendant To Present Negative Evidence Regarding Victim

PRACTICE NOTE: Many courts are rebuffing efforts by defendants to pursue evidence that puts the victim in a negative light. (See Logan, Through the Past Darkly: A Survey of the Uses and Abuses Victim Impact Evidence in Capital Trials, 41 AZ Law.Rev. 143 (1999).) However, this raises concerns about whether due process and confrontational rights are being violated. (Ibid.) Additionally, to allow the prosecution to present positive victim impact evidence and not allow the defense to present negative evidence could violate the federal constitutional principles requiring balance and fairness between the defense and prosecution. (See NCJIC 250.1.5 [Due Process Right To Balance Between Defense And Prosecution As Ground For Defense Theory Instruction].)

See Capital Punishment Handbook [4.3a. Victim Impact Testimony: General Principles And Authorities].

See also generally, NCJIC 305.22.4 [Victim Impact].

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PRACTICE NOTE: Payne v. Tennessee (1991) 501 US 808, 827 [111 SCt 2597, 115 LEd2d 720] did not address the admissibility of "opinions of the victim’s family about the crime, the defendant, and the appropriate sentence ... we do not reach this issue as no evidence of this kind was introduced at petitioner's trial." (501 US at p. 833 (conc. opn., O’Connor, White, and Kennedy, JJ.).) Indeed, Booth [Booth v. Maryland (1987) 482 US 496, 503], specifically held such evidence inadmissible and, to that extent, remains good law. (Ibid.)

See Capital Punishment Handbook [4.3a. Victim Impact Testimony: General Principles And Authorities].

See also generally, NCJIC 305.22.4 [Victim Impact].

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    303.10.7    Victim Impact: Improper To Measure Relative Worth Of Defendant And Victim

RATIONALE: Without a limiting instruction the jury may improperly tend to compare the "value" of the defendant's life to the lives of other persons.

POINTS AND AUTHORITIES: If the focus of the evidence "shifts from humanizing the victim and illustrating the harm caused by the defendant to measuring the worth of the victim compared to other members of society then the state exceeds the bounds of permissible testimony." (Mosley v. State (TX 1998) 983 SW2d 249, 262; see also Cargle v. State (OK 1995) 909 P2d 806, 836 [Lane, J. concurring] [sentencing "is not a matter of balancing or comparing lives" and it is "not a contest to determine who has the better right to live and who most deserves to die"].)

FEDERALIZATION: To federalize this request, click here. [Death Penalty Macro 13.10; 13.13].

See Capital Punishment Handbook [4.3a. Victim Impact Testimony: General Principles And Authorities].

See also generally, NCJIC 305.22.4 [Victim Impact].

    Your decision as to the appropriate sentence is not a matter of comparing or balancing lives and deciding who has the better right to live and who deserves to die. You must not rely on such a comparison or balancing as a reason for returning a verdict of death.

[Source: NCJIC.]

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PRACTICE NOTE: See State v. Nesbit (TN 1998) 978 SW3d 872, 889.

See Capital Punishment Handbook [4.3a. Victim Impact Testimony: General Principles And Authorities].

See also generally, NCJIC 305.22.4 [Victim Impact].

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PRACTICE NOTE: Defense counsel should consider seeking to limit victim impact evidence to the impact on the victims of the crimes for which defendant was convicted at the guilt phase and which were directly related to the capital offense. (Payne v. Tennessee (1991) 501 US 808, 825-830 [111 SCt 2597; 115 LEd2d 720].)

    Several state supreme courts have explicitly held that victim impact evidence must be limited to evidence concerning the impact of the capital murder for which defendant is currently being prosecuted, and is not permissible concerning any other violent criminal activity, including other murder convictions. For example, in People v. Hope (IL 1998) 702 NE2d 1282, the Illinois Supreme Court held "that Payne clearly contemplates that victim impact evidence will come only from a survivor of the murder for which the defendant is presently on trial, no from survivors of offenses collateral to the crime for which defendant is being tried." (Id. at 1288.) Thus, "evidence about victims of other, unrelated offenses is irrelevant and therefore inadmissible." (Id. at 1289.) As a result, the Hope court reversed defendant’s death sentence because of the erroneous admission of victim impact evidence concerning defendant’s previous murder conviction.

    The Nevada Supreme Court reached the same conclusion in Sherman v. State (NV 1998) 965 P2d 903, 914, holding "that the impact of a prior murder is not relevant . . . and is therefore inadmissible during the penalty phase." The Court explained that "evidence of the impact which a previous murder had upon the previous victim is not relevant to show" the damage done by the current capital offense. (Ibid.)

    Similarly, in State v. Nesbit (TN 1998) 978 SW2d 872, the Tennessee Supreme Court "reiterate[d] that victim impact evidence of another homicide, even one committed by the defendant on trial, is not admissible." (Id. at 891, fn 11; see also State v. Bigbee (TN 1994) 885 SW2d 797, 813.).

See Capital Punishment Handbook [4.3a. Victim Impact Testimony: General Principles And Authorities].

See also generally, NCJIC 305.22.4 [Victim Impact].

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RATIONALE: Unless victim impact evidence is tied to facts which were known to the defendant, there is no rational connection between the victim impact evidence and whether the defendant deserves a death sentence.

POINTS AND AUTHORITIES: Counsel should object to any evidence of circumstances of which defendant could not reasonably have been aware at the time of the capital offense. For example, if the victim was a nun in a church but was not wearing distinctive religious clothing when she was killed, then counsel should object to any evidence concerning the victim’s role in the church because it would be unfair to punish defendant based on circumstances which he could not reasonably have been sensitive to. (See People v. Fierro (CA 1991) 1 C4th 173, 264 [3 CR2d 426] (conc. and dis. opn. Kennard, J.) ["'circumstances of the crime' should be understood to mean those facts or circumstances either known to the defendant when he or she committed the capital crime or properly adduced in proof of the charges adjudicated at the guilt phase"].) In Payne v. Tennessee (1991) 501 US 808 [111 SCt 2597; 115 LEd2d 720] the Court held that victim impact evidence was admissible at penalty phase, not as a circumstance of the crime, but as its own independent factor, characterized as the "harm caused by the crime." (Id. at 821-27.) By contrast, the Payne court did not retreat from its previous holding in South Carolina v. Gathers (1989) 490 US 805, 811-812 [109 SCt 2207; 104 LEd2d 876], "that the term 'circumstances of the crime' did not include personal characteristics of the victim that were unknown to the defendant at the time of the crime." (People v. Fierro, supra, 1 C4th 173, 260 (conc. and dis. opn. Kennard, J.).)

    The Tennessee Supreme Court recently expressed similar concerns about the admissibility of victim impact evidence describing matters which were unknown to the defendant. In State v. Nesbit (TN 1998) 978 SW2d 872, the court held:

"that a trial court may consider the defendant’s specific knowledge about the victim’s family when evaluating the probative value of victim impact proof on the appropriateness of the death penalty and when determining if probative value is substantially outweighed by prejudicial effect. In our view, probative value is particularly great, where the proof shows, as it did in this case, that a defendant had specific knowledge about the victim’s family when the crime was committed." (978 SW2d at 893.)

    By contrast, when defendant lacks such knowledge, the probative value is minimal if not nonexistent, and the evidence should be excluded.

FEDERALIZATION: To federalize this request, click here. [Death Penalty Macro 13.13].

See Capital Punishment Handbook [4.3a. Victim Impact Testimony: General Principles And Authorities].

See also generally, NCJIC 305.22.4 [Victim Impact].

    In assessing to what extent, if any, you should consider victim impact evidence in your deliberations, you may not consider any victim impact evidence unless it was foreseeably related to personal characteristics of the victim that were actually known to the defendant at the time of the crime.

[Source: Adapted from People v. Fierro (CA 1991) 1 C4th 173, 243-54 and South Carolina v. Gathers (1989) 490 US 805, 806-810.]

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PRACTICE NOTE: Before the penalty phase begins, counsel should seek an in limine hearing concerning the admissibility and scope of the specific victim impact evidence to be presented. Given the legitimate concerns over the potentially emotional, unduly prejudicial, and excessive nature of victim impact testimony, a trial court would be well advised to make sure that months of trial are not wasted by inflammatory testimony being presented before the jury. These concerns were articulated by the United States Supreme Court in Payne v. Tennessee (1991) 501 US 808, 825, 831 [111 SCt 2597; 115 LEd2d 720] (conc. opn. O’Connor, J.), 836 (conc. opn. Souter, J.).) Indeed, in New Jersey v. Muhammad (NJ 1996) 678 A2d 164,180, the New Jersey Supreme Court expressly held that a trial court should ordinarily conduct an in limine hearing in order to determine the admissibility of victim impact evidence, and require a written description of the testimony of each victim impact witness in order to facilitate such determination. Similarly, in State v. Nesbit (TN 1998) 978 SW2d 872, the Tennessee Supreme Court held: "To enable the trial court to adequately supervise the admission of victim impact proof, we conclude that the State must notify the trial court of its intent to produce victim impact evidence. Upon receiving notification, the trial court must hold a hearing outside the presence of the jury to determine the admissibility of the evidence." (Id. at 891.)

    An excellent source of motions combating the admissibility of victim impact evidence on a variety of grounds have consistently been produced by Assistant Public Defender Katy C. O’Donnell of the Capital Defense Division of the Maryland Bar Center.

    In addition to the constitutional objections to the type and scope of victim impact evidence (see e.g., NCJIC 303.10.3 [Victim Impact: Jury Must Not Consider Overly Emotional Evidence]), counsel should also utilize the ordinary objections available in any trial, such as hearsay, improper character evidence, relevancy, and weighing of probative value against prejudicial impact. These objections are particularly apt in regards to videotapes, letters and poems concerning the decedent.

See Capital Punishment Handbook [4.3a. Victim Impact Testimony: General Principles And Authorities].

See also generally, NCJIC 305.22.4 [Victim Impact].

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PRACTICE NOTE: Although the prosecution is not permitted to elicit testimony from victim-impact witnesses that they want defendant executed for the killing of their loved one (see NCJIC 303.10.6 [Improper For Victims To Expound On Appropriate Sentence For Defendant]), "defendant may offer evidence that he or she is loved by family members or others, and that these individuals want him or her to live . . . . because it constitutes indirect evidence of the defendant’s character." (People v. Ochoa (CA 1998) 19 C4th 353, 456 [79 CR2d 408].) Thus, where the prosecution’s victim-impact witness is a family member of defendant or otherwise has a relationship with defendant, and that witness does not want defendant to be sentenced to death, then defendant should be allowed to present such testimony.

    See also NCJIC 303.7.1.2 [Effect Of Death Penalty On The Defendant's Family As Mitigation].

See Capital Punishment Handbook [4.3a. Victim Impact Testimony: General Principles And Authorities].

See also generally, NCJIC 305.22.4 [Victim Impact].

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    303.10.13    Victim Impact: Irrelevant To Determination Of Aggravating Circumstances

    See NCJIC 303.10.4 [Victim Impact Not Aggravation -- Does Not Relieve Prosecution Of Burden Of Proving Death Qualification/Eligibility].

See Capital Punishment Handbook [4.3a. Victim Impact Testimony: General Principles And Authorities].

See also generally, NCJIC 305.22.4 [Victim Impact].

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VOLUME 17 - CHAPTER 303

    See NCJIC 303.10.1 [Victim Impact: Combined Limiting Instruction].

See Capital Punishment Handbook [4.3a. Victim Impact Testimony: General Principles And Authorities].

See also generally, NCJIC 305.22.4 [Victim Impact].

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VOLUME 17 - CHAPTER 303

PRACTICE NOTE: Excerpt from Dealing With Victim Impact by Michael Ogul, Assistant Public Defender, Alameda County, California:

    There are many different tactical considerations which may affect the scope of cross-examination of a victim impact witness, or the decision whether to ask any questions at all on cross-examination. There are several potentially useful areas of cross-examination which may or may not exist in a given case. For example, where defendant has suffered a harsh childhood, abuse, poverty or some other hardship which is demonstrated by the evidence, it may be helpful to elicit from victim impact witnesses evidence which illustrates that the victim or the witness has never suffered any similar hardship. Such evidence might illustrate that a person’s environment really does impact his or her development and thereby underscore the significance of the defense mitigation. Where a victim impact witness has testified to some aspect of the conduct involved in the commission of the capital offense, the witness may be cross-examined about mistakes or exaggerations in his or her description of the events. A witness may describe how much he or she misses the decedent, but the truth may be that the witness only visited the decedent once a year. A family member may describe needing therapy, but the therapist’s records might reveal that all treatment or counseling over the victim’s death has concluded, or that the witness is now being counseled only for an emotional problem that existed before the capital offense. Thorough investigation and discovery may develop other fertile areas for cross-examination and rebuttal.

    Defense counsel should also consider whether, during the guilt phase of the case, it may be possible to present testimony revealing conduct of the decedent which, to say the least, the jury may find unappealing. For example, although defendant may not have acted in self defense, the decedent’s character for violence and aggression may be relevant to try to demonstrate that defendant was provoked to kill the decedent, negating the element of premeditation. While the jury may conclude that defendant was guilty of first degree murder nevertheless, the jury will have heard damaging character evidence about the decedent, during a portion of the case which is not laced with the moral and emotional considerations that are omnipresent at penalty phase. In addition, background photographs of the crime scene may reveal unfavorable characteristics of the decedent. Although it would be counterproductive to present such evidence at penalty phase, where the prosecution would surely accuse the defense of character assassination, simply introducing such evidence during the guilt phase may help counter the prosecution’s inevitable attempt to portray the decedent as a near-perfect human being.

    On the other hand, there will certainly be situations where nothing positive can be gained from cross-examination, and these situations will occur more often with victim impact witnesses than with any other type of witness. Trust your instincts and your humanity, after obtaining the knowledge necessary to make an intelligent tactical decision.

See Capital Punishment Handbook [4.3a. Victim Impact Testimony: General Principles And Authorities].

See also generally, NCJIC 305.22.4 [Victim Impact].

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 17 - CHAPTER 303

PRACTICE NOTE: See United States v. Bernard (5th Cir. 2002) 299 F3d 467 [plain error for victim’s mother to testify that she was sorry that the petitioners’ "hearts were so hard," and a father’s characterization of the crime as "tragic," "reckless," a "useless act of violence," and "a total disregard for human life," that occurred when the victims "saw a chance to witness to two young people placing themselves in harm’s way"].