Post by skyloom on Oct 9, 2006 11:20:01 GMT -5
An interesting article which I can't reproduce in its entirety, but these are some of the conclusions.
Comments?
January, 2003
88 Cornell L. Rev. 257
TEN YEARS OF PAYNE: VICTIM IMPACT EVIDENCE IN CAPITAL CASES
John H. Blume
VIE is politically popular, and it is difficult to imagine any state or federal court significantly restricting its admissibility. Furthermore, VIE is largely unregulated. Appellate court reversals for admitting VIE or argument are as rare as the proverbial hen's teeth. Only a few states - Alabama, Kentucky, Louisiana, and New Jersey - have reversed death sentences due to the admission of improper VIE. No federal appellate court has found error in the government's presentation of VIE. ... Some of this may be due to the lack of consensus as to VIE's basic purpose. Regardless of the reasons, more judicial oversight is necessary on both substantive and procedural issues. Payne suggested that VIE should offer only a "brief glimpse" of the victim. However, most jurisdictions permit extensive evidence regarding the victim's characteristics and the impact of the crime on immediate family members. This type of detailed VIE - often including photographs, videotapes, and other memorabilia - can only invite the type of "comparative worth considerations" dismissed by the Payne majority. What else could a capital sentencing jury think when presented with detailed evidence about both the defendant and the victim other than that its role is to decide whether the capital defendant - the person the jury has found guilty of murder - should be permitted to live when the innocent victim and his or her family have suffered so much? ... If VIE is not intended to invite "comparative worth considerations," then "why do prosecutors never dwell on the dead person's vices?"
Payne also does not address cases in which victims' family members do not support the prosecution's efforts to obtain a death sentence. There have been cases in which the prosecution insisted on seeking the death penalty at trial despite the victims' survivors' wishes. What then? Do the family members testify if called by the prosecution? There is no reason to believe that those who do not favor the death penalty do not suffer the same degree of pain and loss as a result of the death of their mother, father, or child as do surviving family members who believe the defendant should be executed for his crime. And these anti-death penalty individuals may well believe it would be an act of disloyalty to their dead loved one to refuse to testify. However, by testifying, they become part of the prosecution's efforts to kill.
Furthermore, in many cases, expansive VIE will inevitably make way for racial discrimination to operate in the capital sentencing jury's life or death decision. Virtually every statistical study, including one commissioned by the federal government, indicates that although the death penalty is rarely sought in black-victim cases, it is sought (and obtained) in a disproportionate share of cases involving black defendants and white victims. Capital jury selection, or "'death qualification,'" often results in predominantly or all-white juries. As the Supreme Court has recognized, there is an inherently subjective element in capital sentencing which can allow for jurors' conscious and unconscious racial biases to play a role in their capital sentencing decisions. Thus, VIE carries the inherent danger that white, middle-class jurors will most empathize with white middle-class victims and will thus be more likely to impose the death sentence in cases in which the victim is similar to them.
....
It is hardly revolutionary to suggest that the prosecution should notify a capital defendant if it intends to offer VIE. If due process means anything, it encompasses the right to notice and an opportunity to be heard. Yet notice is not the majority rule. Additionally, a pre-admissibility hearing outside the presence of the jury should be mandatory not only to minimize the emotional nature of the evidence, but also to provide the defendant with the opportunity to lodge legitimate objections. For example, VIE often entails inadmissible hearsay. A victim's mother may, for example, testify about calls from friends, relatives, or others expressing their grief, or she may make a comment about how "everyone loved my son." Practically speaking, however, counsel will often feel unable to object to this type of evidence, in the presence of the jury. Similarly, pre-admissibility hearings will allow objections to the number of witnesses, as well as other types of potentially inflammatory evidence, including opinion testimony. Another solution - if Payne is to remain the law - is to require written submission of VIE. Not only would this permit defense counsel to lodge appropriate objections, but it would also reduce some of the emotional content of the evidence, thereby reducing the likelihood of a comparative worth comparison. At present, New Jersey, and to a lesser extent Georgia and Kansas, are the only states that provide anything resembling adequate procedural safeguards.
Comments?
January, 2003
88 Cornell L. Rev. 257
TEN YEARS OF PAYNE: VICTIM IMPACT EVIDENCE IN CAPITAL CASES
John H. Blume
VIE is politically popular, and it is difficult to imagine any state or federal court significantly restricting its admissibility. Furthermore, VIE is largely unregulated. Appellate court reversals for admitting VIE or argument are as rare as the proverbial hen's teeth. Only a few states - Alabama, Kentucky, Louisiana, and New Jersey - have reversed death sentences due to the admission of improper VIE. No federal appellate court has found error in the government's presentation of VIE. ... Some of this may be due to the lack of consensus as to VIE's basic purpose. Regardless of the reasons, more judicial oversight is necessary on both substantive and procedural issues. Payne suggested that VIE should offer only a "brief glimpse" of the victim. However, most jurisdictions permit extensive evidence regarding the victim's characteristics and the impact of the crime on immediate family members. This type of detailed VIE - often including photographs, videotapes, and other memorabilia - can only invite the type of "comparative worth considerations" dismissed by the Payne majority. What else could a capital sentencing jury think when presented with detailed evidence about both the defendant and the victim other than that its role is to decide whether the capital defendant - the person the jury has found guilty of murder - should be permitted to live when the innocent victim and his or her family have suffered so much? ... If VIE is not intended to invite "comparative worth considerations," then "why do prosecutors never dwell on the dead person's vices?"
Payne also does not address cases in which victims' family members do not support the prosecution's efforts to obtain a death sentence. There have been cases in which the prosecution insisted on seeking the death penalty at trial despite the victims' survivors' wishes. What then? Do the family members testify if called by the prosecution? There is no reason to believe that those who do not favor the death penalty do not suffer the same degree of pain and loss as a result of the death of their mother, father, or child as do surviving family members who believe the defendant should be executed for his crime. And these anti-death penalty individuals may well believe it would be an act of disloyalty to their dead loved one to refuse to testify. However, by testifying, they become part of the prosecution's efforts to kill.
Furthermore, in many cases, expansive VIE will inevitably make way for racial discrimination to operate in the capital sentencing jury's life or death decision. Virtually every statistical study, including one commissioned by the federal government, indicates that although the death penalty is rarely sought in black-victim cases, it is sought (and obtained) in a disproportionate share of cases involving black defendants and white victims. Capital jury selection, or "'death qualification,'" often results in predominantly or all-white juries. As the Supreme Court has recognized, there is an inherently subjective element in capital sentencing which can allow for jurors' conscious and unconscious racial biases to play a role in their capital sentencing decisions. Thus, VIE carries the inherent danger that white, middle-class jurors will most empathize with white middle-class victims and will thus be more likely to impose the death sentence in cases in which the victim is similar to them.
....
It is hardly revolutionary to suggest that the prosecution should notify a capital defendant if it intends to offer VIE. If due process means anything, it encompasses the right to notice and an opportunity to be heard. Yet notice is not the majority rule. Additionally, a pre-admissibility hearing outside the presence of the jury should be mandatory not only to minimize the emotional nature of the evidence, but also to provide the defendant with the opportunity to lodge legitimate objections. For example, VIE often entails inadmissible hearsay. A victim's mother may, for example, testify about calls from friends, relatives, or others expressing their grief, or she may make a comment about how "everyone loved my son." Practically speaking, however, counsel will often feel unable to object to this type of evidence, in the presence of the jury. Similarly, pre-admissibility hearings will allow objections to the number of witnesses, as well as other types of potentially inflammatory evidence, including opinion testimony. Another solution - if Payne is to remain the law - is to require written submission of VIE. Not only would this permit defense counsel to lodge appropriate objections, but it would also reduce some of the emotional content of the evidence, thereby reducing the likelihood of a comparative worth comparison. At present, New Jersey, and to a lesser extent Georgia and Kansas, are the only states that provide anything resembling adequate procedural safeguards.