Victim Impact Evidence Research Articles

‘Ideal victims’ in capital penalty hearings: an assessment of victim impact evidence and sentencing outcomes

ABSTRACT Critics have argued that victim impact evidence (VIE) may enhance sentencing biases by encouraging judges and juries to treat some types of victims as worthier than others. Yet, research to date has not utilized trial transcripts to assess differences in the quantity and quality of evidence presented. The current study addresses this gap by utilizing transcripts from Delaware capital sentencing hearings (2001–2011). The results indicated that more VIE witnesses were called and a greater amount of VIE was presented when victims aligned more closely with the cultural stereotype of the ‘ideal victim.’ ‘Ideal victims’ were also more likely to be described as having contributed to the community and to be associated with the judge issuing a death sentence. However, VIE itself, what witnesses said about victims and their characters, was not correlated with sentencing outcomes. These findings suggest that victim attributes rather than VIE may be driving sentencing bias.

Victim Impact Statements at Sentencing: The Relevance of Ancillary Harm

This article discusses the Quebec Court of Appeal decision in Cook that provides an unambiguous affirmation of the importance of victim impact evidence as a source of aggravation at sentencing. If followed in other jurisdictions, the decision will have a significant impact on the evolution of victim impact statements. To date, the victim impact statement has remained in a legal no man’s land, somewhere between an unsworn statement made by the victim, which may (or may not) be entered into the record and a form of evidence that can affect the quantum of punishment and hence the liberty interests of the defendant. This state of affairs is unsatisfactory for all concerned. In our view a victim impact statement serves a number of purposes, some expressive in nature. We discuss the concept of ancillary harm — inflicted on secondary crime victims — to demonstrate the utility of impact statements as a source of legally-relevant information at sentencing. We conclude that an impact statement is evidence that enables the court to reach a more accurate determination of the harm created by the offence. In this sense the use of victim impact evidence promotes the principle of proportionality at sentencing. This evidence is properly adduced at a separate penalty phase of the criminal process, namely the sentencing hearing.

Judicial Narratives of Ideal and Deviant Victims in Judges’ Capital Sentencing Decisions

Although the Victim’s Rights Movement has led to advances for victims of crime, the use of victim impact evidence in criminal trials remains controversial due to the suspicion that such evidence enhances punitive attitudes and arbitrariness in capital sentencing outcomes. Despite a growing body of literature in this area, it remains unclear if some victims are viewed more favorably than others, particularly from the perspective of judges. The current study examines the construction of victims by judges in capital cases and how this portrayal impacts sentencing outcomes in Delaware, which vests the final capital sentencing authority in judges rather than juries. In examining this gap in the literature, we consider if judges make distinctions between ideal and deviant victims, if these distinctions are associated with victim and offender characteristics, and if the construction of victims impacts offender sentencing. Findings from this study lend support to the idea that judges describe some victims as more “worthy” than others, that victims described in ideal ways are more likely to be white and female, and that “ideal victims” are more likely to result in death sentences.

A HEAVY THUMB ON THE SCALE: THE EFFECT OF VICTIM IMPACT EVIDENCE ON CAPITAL DECISION MAKING*

The past several decades have seen the emergence of a movement in the criminal justice system that has called for a greater consideration for the rights of victims. One manifestation of this movement has been the right of victims or victims' families to speak to the sentencing body through what are called victim impact statements about the value of the victim and the full harm that the offender has created. Although victim impact statements have been a relatively noncontroversial part of regular criminal trials, their presence in capital cases has had a more contentious history. The U.S. Supreme Court overturned previous decisions and explicitly permitted victim impact testimony in capital cases in Payne v. Tennessee (1991). The dissenters in that case argued that such evidence only would arouse the emotions of jurors and bias them in favor of imposing death. A body of research in behavioral economics on the identifiable victim and the identifiable wrongdoer would have supported such a view. Using a randomized controlled experiment with a death-eligible sample of potential jurors and the videotape of an actual penalty trial in which victim impact evidence (VIE) was used, we found that these concerns about VIE are perhaps well placed. Subjects who viewed VIE testimony in the penalty phase were more likely to feel negative emotions like anger, hostility, and vengeance; were more likely to feel sympathy and empathy toward the victim; and were more likely to have favorable perceptions of the victim and victim's family as well as unfavorable perceptions of the offender. We found that these positive feelings toward the victim and family were in turn related to a heightened risk of them imposing the death penalty. We found evidence that part of the effect of VIE on the decision to impose death was mediated by emotions of sympathy and empathy. We think our findings open the door for future work to put together better the causal story that links VIE to an increased inclination to impose death as well as explore possible remedies.

Listening to the Crime Victim: Evaluating Victim Input at Sentencing and Parole

Crime victims play an increasingly important role in the criminal process. One manifestation of this is the proliferation in the use of victim impact statements at sentencing and parole hearings. Across the common‐law world victims are allowed to submit an impact statement to a sentencing court or parole board. Many U.S. states go further and encourage (or allow) victims to recommend a specific sentence to the court or to express their views on the release of the offender on parole. Research into the use of impact evidence at sentencing suggests that victims can benefit from the experience, and most who submit impact statements affirm that they would do so again. However, few victims participate in impact statement regimes, which tend to be poorly administered. There is no systematic evidence that impact statements make sentencing harsher, and research suggests that victim impact evidence is perceived by judges to be beneficial to the sentencing process. There is less justification for allowing victim input at parole, as victims seldom possess information relevant to the parole decision. Victim input at corrections is an example of what has been termed “punitive victim rights” and is inconsistent with sound correctional principles or principles of fundamental justice.

An Argument for the Admissibility of Execution Impact Evidence in Pennsylvania

In 1991, the United States Supreme Court made a significant change to sentencing proceedings during capital trials. The Court ruled in Payne v. Tennessee that the Eighth Amendment does not prohibit “victim impact evidence,” testimony about the character of the murder victim and the impact of the death on the victim’s family. The Payne decision permits highly emotional testimony from family members to enter into the penalty phase of a death penalty trial.

Who Is the Victim Anyway? The Effects of Bystander Victim Impact Statements on Mock Juror Sentencing Decisions

Victim impact evidence was varied in a brief trial scenario given to 120 participants eligible for jury service. The scenario concerned the murder trial of a disgruntled employee accused of bombing his former workplace. Participants read either no victim impact evidence or one of three victim impact statements. For the victim impact statements, we varied the identity of the witness. The victim impact statement was given by either the wife of the victim, a coworker of the victim, or a firefighter called to the crime scene. Results revealed that only the victim impact evidence given by the coworker lead to harsher sentencing judgments. However, participants rated the suffering of the victim's wife as most severe, indicating that perceptions of suffering may not predict sentencing judgments in a straightforward manner. Implications for these findings for legal decisions such as Payne v. Tennessee (1991) are discussed.

The prejudicial nature of victim impact statements: Implications for capital sentencing policy.

Victim impact evidence is presented during sentencing hearings to convey the harm experienced by victims and victims’ relatives as a result of a crime. Its use in capital cases is highly controversial. Some argue that the Supreme Court’s decision to allow the admission of victim impact statements (VIS) during capital sentencing proceedings (Payne v. Tennessee, 1991) invites prejudice and judgments based on emotion rather than reason. Others reason that it provides an important voice for survivors and affords the jury an opportunity to learn about the victim. The authors outline the chief psychological issues that arise in the context of VIS, including their relevance to jurors’ judgments of blameworthiness, concerns that the social worth of the victim will influence jurors’ sentencing decisions, and issues related to the emotional appeal of VIS. Psycholegal research on the influence of VIS on mock jurors is reviewed, and implications of this work for capital sentencing policy and suggested directions for future research are discussed.

Victim Impact Testimony and the Psychology of Punishment

A growing body of empirical evidence from psychology, sociology, law, and criminal justice has demonstrated that lay intuitions about punishment are strongly rooted in retributivism: i.e., the idea that punishment should be distributed in proportion to moral desert. Level of harm is often thought to be indicative of desert, but harm described by victims (or survivors) in the context of victim impact evidence is subjective and often unforeseeable insofar as it is attributable to chance factors. How do observers (such as jurors or judges) use information about consequences determined by chance factors when they judge punishment? The emotional and cognitive processes involved in jurors' use of victim impact evidence potentially reveals key insights about the psychological mechanisms underlying laypersons' punishment judgments generally. This paper explores empirical evidence for the notion that the subjective harm experienced by the victim of an offense serves as proxy for the level of defendant's effort and culpability, and by implication, the perceived seriousness of the crime.

The Capital Jury and Empathy: The Problem of Worthy and Unworthy Victims

Much debate and speculation has taken place over whether juries should be allowed to consider evidence concerning the victim in making their capital punishment decision. While an understanding of how capital juries use victim evidence cannot by itself resolve the debate, such an understanding can help better focus the moral and legal issues that are at stake. A review of the Capital Jury Project data from California suggests that capital juries are influenced by victim evidence, at least to the extent that the evidence pertains to the victim's actions leading up to the crime. A randomly chosen victim appears to tilt the jury towards a death sentence, both because juries see a defendant who preys upon a randomly chosen victim as the most dangerous and depraved of criminals, and because jurors are most likely to empathize with a victim who is engaged in everyday activities. By contrast, a victim who is engaged in high-risk or anti-social behavior leading up to the crime is less likely to invoke an empathetic response from the jury or to provoke a sense of outrage, which, in turn, appears to make the jury less inclined to impose a sentence of death. These findings suggest, therefore, that even without the formal admission of Victim Impact Evidence (VIE) at the penalty phase, victim evidence from the guilt phase will play a role in the sentencing decision, an effect that Justice Souter predicted in his Booth concurrence. Further research is needed to determine whether VIE has its own independent effect on the jury's sentencing decision or mainly serves to reinforce the jury's sentencing inclination coming out of the guilt phase. The indication that jurors are likely to empathize with certain victims also highlights the need to determine whether such empathy is limited to the victim's role in the crime (a factor the criminal law has traditionally accepted as legitimate) or extends further to illegitimate factors such as race and socioeconomic status.

10.2307/3505179

This essay examines Martha Nussbaum’s prescription for tempering retribution with mercy in the capital sentencing process. Nussbaum observes that the operation of retribution in the ancient world resulted in harsh and indiscriminate punishment without regard to the particularities of the offender and his crime. In the interest of mercy, Nussbaum advocates the use of the novel as a model for a more compassionate sentencing process. An examination of Nussbaum’s “novel prescription” reveals that the retribution that operates in the modern criminal law, and in the Supreme Court’s capital sentencing jurisprudence, already accommodates the values of justice – individuation, particularization, and proportionality – that are characteristic of the mercy tradition. Moreover, the rich narrative approach that Nussbaum favors is by no means congenial to merciful punishment. Because the particularistic detail of the novel form is not confined to the sympathetic portrayal of the defendant, the emotionalism that Nussbaum urges encompasses as well emotional details about the characteristics of the defendant’s victim. Such victim impact evidence is consistent with the novel form, but is unlikely to promote merciful judgment. Instead, the details of victim impact evidence can be expected to exacerbate a sentencing authority’s inclination to judge a capital defendant harshly. The novel thus provides a poor model for the capital sentencing process because it fosters the sort of unchecked emotionalism that undermines the rational decision making that the Supreme Court has sought to achieve.

The Effects of Victim Impact Evidence on the Verdicts and Sentencing Judgments of Mock Jurors

Victim impact evidence consists of information about the effects of a crime on the victim or the victim's family. We presented 48 juries with two levels of victim impact evidence (victim impact/no victim impact) and two levels of evidence strength (strong/weak), with an equal number of juries in each of the 4 conditions. No significant effects for victim impact evidence were demonstrated at the jury level for either verdicts or sentencing judgments. However, jurors presented with victim impact evidence were less likely to find the defendant guilty for their post-deliberation verdicts, and those who found the defendant guilty gave significantly harsher sentence recommendations and were more likely to impose the death penalty than jurors who did not receive victim impact evidence. Implications for decisions such as Payne v. Tennessee (1991) are discussed.

The many guises of victim impact evidence and effects on jurors' Judgments

Victims of crime are frequently given the opportunity to describe the impact of that crime at the sentencing hearings of their offenders. This information (typically referred to as victim impact evidence) may convey the physical, psychological, and/or financial impact of the crime on victims or survivors, victims' or survivors' opinions about the crime and the offender, and, in murder cases, information about the personal qualities of the deceased. There is heated debate about the use of victim impact statements in capital cases: proponents reason that jurors should know the extent of the harm caused by the offender; critics argue that this evidence infuses the trial with highly emotional and prejudicial information. The purpose of this study was to assess the effects of various forms of victim impact evidence on mock jurors in a capital case. Results showed that different forms of victim impact evidence exert subtle and differential influences on jurors' sentiments about the victim and the victim's survivors.

Sentencing outcomes, race, and victim impact evidence in california: A pre‐ and post‐payne comparison*

This paper examines the effect of victim impact evidence in capital‐murder jury trials in California since the United States Supreme Court decided Payne v. Tennessee in 1991. Pursuant to Payne, prosecutors can use victim impact evidence in capital‐murder cases to encourage sentencing juries to impose death as an alternative punishment to life in prison without the possibility of parole. We analyzed 151 capital cases occurring in thirty‐six counties in California between 1989 and 1994. Our findings show that the presentation of victim impact evidence increases the likelihood of receiving a death sentence for some crimes. Secondly, our findings show that victim impact evidence has greater consequences for cases involving Latino defendants, and in cases involving nonwhite defendants and victims.

Victim Impact Testimony in Texas: The Need for Reformation and Clarification

Since Payne, the Texas Court of Criminal Appeals has made several attempts to address the admissibility of victim impact testimony in capital sentencing cases, but the court's decisions have only confused the situation. This Note discusses the confusion and inconsistencies of these decisions and advocates that the Texas Court of Criminal Appeals permit the use of all victim impact evidence in capital murder sentencing proceedings. Part I of this Note defines victim impact evidence and summarizes the development of victim impact testimony in capital murder cases. That section also discusses the different types of victim impact testimony and the intent behind the use of such evidence. Part II analyzes the Supreme Court's attempts to determine which specific types of victim impact testimony are constitutional. That section addresses the Court's evolving standard for admissibility by focusing primarily on the Court's analysis in two significant cases: Booth v. Maryland and Payne v. Tennessee. Part III analyzes how Payne has influenced the Texas Court of Criminal Appeals in the development of Texas's current position on the use of victim impact evidence in capital sentencing. Part IV discusses the current insufficient standard in Texas and the dilemmas posed by limiting the types of admissible testimony. That section focuses on special concerns involving the victim, the victim's family, the convicted murderer, the sentencing jury, and society. Part V concludes with arguments for the admission of all types of victim impact testimony, a discussion on the impact of such evidence in the sentencing process, and explores the importance of the victim's rights.

Death penalty cases: leading U.S. Supreme Court cases on capital punishment

Preface Acknowledgements Ch. 1 Capital Punishment: The Law and the Issues Ch. 2 Cruel and Unusual as Applied Furman V. Georgia (1972) Ch. 3 Not Inherently Unconstitutional Gregg v. Georgia (1976) Ch. 4 Texas Death Penalty Procedures Jurek v. Texas (1976) Ch. 5 Rape and the Death PenaltyCoker v. Georgia (1977) Ch. 6 Death PenaltyWoodson v. North Carolina (1976) Ch. 7 Mandatory Death Statutes Blystone v. Pennsylvania (1990) Ch. 8 Vague Aggravating Factors Godfrey v. Georgia (1980) Ch. 9 Mitigating Evidence Lockett v. Ohio (1978) Ch. 10 Jury Unanimity on Mitigating Evidence McKoy v. North Carolina (1990) Ch. 11 Murder Defendants Who Did Not Kill (I) Enmund v. Florida (1982) Ch. 12 Murder Defendants Who Did Not Kill (II)Tison v. Arizona (1987) Ch. 13 Jurors Opposed to Capital PunishmentWitherspoon v. Illinois (1968) Ch. 14 Selecting the Death-Qualified Jury Lockhart v. McCree (1986) Ch. 15 Selecting an Unbiased Jury Turner v. Murray (1986) Ch. 16 Victim Impact Evidence Payne v. Tennessee (1991) Ch. 17 Jury Instructions On Parole-Ineligibility Simmons v. South Carolina (1994) Ch. 18 The Right to Effective Counsel Burger v. Kemp (1987) Ch. 19 Capital Sentencing by Judges Spaziano v. Florida (1984) Ch. 20 Proportional Sentencing Review Pulley v. Harris (1984) Ch. 21 Death Sentences and Double Jeopardy Arizona v. Rumsey (1984) Ch. 22 Juveniles May Be Executed Stanford v. Kentucky (1989) Ch. 23 Insane Convicts May Not Be Executed Ford v. Wainwright (1986) Ch. 24 The Mentally Retarded May Not Be Executed Atkins v. Virginia (2002) Ch. 25 Race Discrimination and Capital Punishment McCleskey v. Kemp (1987) Ch. 26 Innocence And Federal Habeas Corpus Herrera v. Collins (1993) Appendix A: Facts and Figures on Murder and the Death Penalty Appendix B: Selected Death Penalty Statutes

Victim Impact Evidence in Capital Cases: Does the Victim's Character Matter?1

Victim impact evidence is introduced by the prosecution during the penalty phase of a capital case to describe the character of the victim and the emotional, financial, and physical impact of the victim's murder on survivors. In 1987, the Supreme Court voiced concern that this evidence would permit the capital sentencing decision to turn on jurors' perceptions of the victim's respectability. This study assesses that concern. Mock jurors watched a reenactment of the penalty phase in the case of Booth v. Maryland. We manipulated the respectability of the victim described in the victim impact evidence and found that jurors' judgments of the victims, victims' survivors, and severity of the crime were all affected by this description. We speculate on the way that these moderating variables could, in turn, influence the capital sentencing decision.

Victim impact evidence in a capital trial: Encouraging votes for death

Subjects individually read a description of either a moderately aggravated or a severely aggravated murder and were informed that the defendant had already been convicted of first degree murder. Their task was to decide on the penalty of life imprisonment versus death. Subjects then read summaries of the prosecution and defense penalty arguments, after which they either read or did not read a statement describing the impact of the victim’s death on the victim’s family. Significantly more subjects exposed to the victim impact statement voted for death than those not exposed to the statement. Victim impact evidence led to increased numbers of subjects voting for death for both crimes, and victim impact evidence had its strongest effects on individuals who already favored the death penalty.

Jury Decision Making and the Effect of Victim Impact Statements in the Penalty Phase

Research supports the finding that jurors' decisions are affected by many variables other than the evidence presented during trial. Most of this research has focused on jury decision making during the guilt determining phase of the trial, while very little study has been devoted to the sentencing phase. As victims of crime have demanded more attention in the criminal justice system over the past decade, more cases and research have focused on the “rights” of victims and how they may have an impact on the outcome of a criminal trial. This article examines the research regarding the variables which affect jury decision making during the guilt and penalty phases of a criminal case while emphasizing the need for further research in the area of how victim impact evidence affects the jury's decision.

The triumph of vengeance over retribution: the United States Supreme Court and the death penalty

In this article the author uses a review of Welsh S. White'sThe Death Penalty in the Nineties as a framework for analyzing recent trends in the United States Supreme Court's death penalty jurisprudence. Since 1976 the Supreme Court has upheld the constitutionality of capital punishment at least in part on the notion that the death penalty serves the useful social purpose of retribution. This article, however, contends that it is imperative to distinguish between retribution and vengeance as rationales for criminal punishment. Modern retributive theory calls for punishments to be guided by considerations of proportionality, fairness, and equality. Vengeance-based punishments, on the other hand, are aimed at satisfying the victim's and society's desire for retaliation and are not limited by the retributive principle that punishment must be proportionate to the severity of the crime and the moral blameworthiness of the offender. The article analyzes recent Supreme Court decisions that are not examined inThe Death Penalty in the Nineties-decisions that allow the introduction of victim-impact evidence into capital sentencing proceedings and permit the death penalty to be imposed on 16-year-old offenders, mentally retarded defendants, and those who neither kill nor intend to kill. These decisions, it is argued, demonstrate that the contemporary Court has bestowed judicial approval on vengeance as an acceptable justification for capital punishment.