U.S. Supreme Court Reverses Oklahoma Case Over Improper Victim-Impact Testimony

The U.S. Supreme Court has reversed a decision of the Oklahoma Court of Criminal Appeals that affirmed the death sentence imposed on Shaun Michael Bosse. In a unanimous per curiam decision issued October 11, the Court held that Oklahoma prosecutors had improperly presented testimony from three members of the victims’ families asking the jury to sentence Bosse to death. The Court had ruled in 1987 in Booth v. Maryland that the use of victim-impact testimony in determining whether a capital defendant would be sentenced to death violated the 8th Amendment. Four years later, after a personnel change on the Court, it retreated from part of that decision, holding in Payne v. Tennessee that the presentation of testimony relating to the effect of the victim’s death on his or her loved ones was constitutionally permissible. The Oklahoma Court of Criminal Appeals then ruled that Payne had implicitly overruled Booth in its entirety, permitting Oklahoma prosecutors to present highly emotional pleas from victims’ family members asking juries to impose the death penalty. Oklahoma was the only jurisdiction in the country to interpret Payne in that manner, and Bosse’s petition for review argued that “Oklahoma stands alone” and that its “outlier” practice was unconstitutional. The Supreme Court summarily reversed the Oklahoma court, writing that it has never overruled the portion of Booth that prohibits victims’ family testimony offering “opinions about the crime, the defendant, and the appro­priate punishment.” The Court further declared that its decision in Booth “remain[s] binding prec­edent until we see fit to reconsider [it].” While the Bosse decision prevents Oklahoma prosecutors from presenting this type of testimony in the future, its impact on the numerous other cases in which Oklahoma prosecutors presented this testimony is less clear. The Court remanded Bosse’s case to the Oklahoma Court of Criminal Appeals, which may consider whether the improper testimony constituted harmless error. Similar harmless error review may be required in other Oklahoma cases.

(A. Howe, “No grants from morning orders,” SCOTUSblog, October 11, 2016.) You can read Shaun Michael Bosse’s petition for writ of certiorari here and Oklahoma’s brief in opposition to the petition here, as well as the Court’s opinion in Bosse v. Oklahoma, No. 15-9173. See U.S. Supreme Court.