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. However, 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. 

Two years lat­er, the Court reaf­firmed its hold­ing in Booth in the case of South Carolina v. Gathers (1989). But 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).