Legal Issues: Victim Impact Evidence

Some forms of victim-impact evidence may be presented during the penalty phase of a death-penalty trial, usually limited to testimony by victim’s family members describing how the crime has affected their lives. It is unconstitutional for the prosecution to present evidence or argument that the victim’s family members want the defendant to be sentenced to death.

In Booth v. Maryland (1987), the U.S. Supreme Court ruled by a vote of 5-4 that victim-impact evidence and argument violated the Eighth Amendment. At that time, the Court said such testimony created an unacceptable risk that a death sentence would be arbitrarily imposed based upon the emotionally-charged opinions of the victims, rather than a reasoned moral judgment based upon the circumstances of the crime and the characteristics of the defendant. The Court reaffirmed its holding in Booth in the case of South Carolina v. Gathers (1989). However, with the retirement of two of the justices in the Booth majority, the Court reversed itself in Payne v. Tennessee (1991) and permitted the prosecution to present victim-impact evidence to counter mitigation from the defendant. Backtracking from its reasoning in Booth, the new Court majority held that “assessment of the harm caused by the defendant has long been an important factor in determining the appropriate punishment, and victim impact evidence is simply another method of informing the sentencing authority about such harm.”

While states vary in precisely the type of statements they allow and which individuals may be permitted to provide them, the U.S. Supreme Court has unambiguously reaffirmed that Booth’s prohibition against victim-impact statements that explicitly ask a jury to impose a death sentence still stands. In a unanimous decision in Bosse v. Oklahoma (2016), the Court made clear that it has never overruled the portion of Booth that prohibited the presentation of testimony from victims' families offering "opinions about the crime, the defendant, and the appropriate punishment," and declared that this part of Booth "remain[s] binding precedent until we see fit to reconsider [it]."

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).

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