Legal Issues: States That Allow Victim Impact Statements

Undecided
Limited Admissibility
Admissible
Montana Indiana Alabama  
New Hampshire Mississippi Arizona  
Wyoming*   Arkansas Nevada
    California North Carolina
    Colorado Ohio
    Delaware Oklahoma
    Florida Oregon
    Georgia Pennsylvania
    Idaho South Carolina
    Kansas South Dakota
    Kentucky Tennessee
    Louisiana Texas
    Maryland Utah
    Missouri Virginia
    Nebraska Washington
       

Note: The Federal Government and the U.S. Military also allow the use of Victim Impact Statements.

(Source: John H. Blume, "Ten Years of Payne: Victim Impact Evidence in Capital Cases," 88 Cornell Law Review 257, 268 (2003)).

* On April 14, 2003, the Wyoming Supreme Court held that victim impact evidence is not admissible at the sentencing phase of capital trials in that state. The court stated that it is up to the legislature to decide whether the sentencer may consider victim impact evidence, and Wyoming's legislature has not yet authorized the admission of such evidence. (Olsen v. State, Wyo., No. 98-62).

New Mexico abolished the death penalty for crimes committed after the effective date of the law in 2009.  Illinois abolished the deaht penalty in 2011.  Connecticut abolished the death penalty for future crimes in 2012.  New York and New Jersey became abolition states in 2007.

See also D. Sanderford, "Victim Impact Evidence, State by State" (2012).

R. Paternoster & J. Deise, "A HEAVY THUMB ON THE SCALE: THE EFFECT OF VICTIM IMPACT EVIDENCE ON CAPITAL DECISION MAKING," 49 Criminology 129 (2011).

KELLY V. CALIFORNIA, No. 07-11073, U.S. Supreme Court (2008)

Review denied with 3 Justices expressing concerns about victim impact statements

Some of the Justices sent a signal they may want to restrict prosecutors' use of victim impact statements in death sentencing hearings.  In Booth v. Maryland (1987), the Court initially found such testimony to be unconstitutional because of the danger the jury could be overwhelmed by emotional statements from victims' family members about their suffering and loss. That decision was reversed a few years later in Payne v. Tennessee.  This year, in Kelly v. California, the Court was asked to limit the extent of such victim statements.  Three Justices indicated the Court should consider the issue.  Justice Breyer dissented from the denial of certiorari and wrote separately.  Justice Souter would have granted cert.  Justice Stevens respected the denial of cert., but wrote separately  of his concerns. (Four Justices are needed to grant review.) Stevens wrote:

"In the years since Payne was decided, this Court has left state and federal courts unguided in their efforts to police the hazy boundaries between permissible victim impact evidence and its impermissible, ‘unduly prejudicial’ forms…. Having decided to tolerate the introduction of evidence that puts a heavy thumb on the prosecutor’s side of the scale in death cases, the Court has a duty to consider what reasonable limits should be placed on its use."

(Stevens, J., statement respecting denial of cert. Nov. 10, 2008). See U.S. Supreme Court's order.

Return to Victims and the Death Penalty.