Victim Impact Evidence: People in Payne

In 1976, the United States Supreme Court reasserted the constitutionality of capital punishment with its decision in Gregg v. Georgia. In doing so, the Court cautioned that juries must have “as much information as possible” for consideration when making such a grave sentencing decision. One year later the Court emphasized the importance of every sentencing decision being based on “reason rather than emotion” (Gardner v. Florida, 1977). That is, to ensure justice (for the defendant and for society) jurors are explicitly instructed not to let emotion influence their consideration of the facts and circumstances in evidence. A juror’s obligation to make a non-arbitrary, unemotional, and unbiased decision is nowhere as great as in a capital case. And under no circumstance is the fine line between reason and emotion more difficult to hold than when considering “victim impact” (VI) evidence.

Giving Voice to Victims

The same year Gregg was decided, the first VI statement was read into evidence in a Fresno, California, court by then Chief Probation Officer, James Rowland. Subsequently, at his urging, such statements were included in all pre-sentence reports in Kern County. This was well before the Victim and Witness Protection Act of 1982 made VI statements a required component of pre-sentence reports nationwide. Amending Rule 32 of the Federal Rules of Criminal Procedure, the Act included VI evidence in all sentencing proceedings. By 1988,4 years after the Victim and Witness Protection Act was enacted, 44 states and the federal government allowed VI evidence during the sentencing or penalty phase of capital trials.

The purpose of VI evidence is to humanize the victim in the eyes of the trier of fact, be it judge or jury. It is typically presented by one or more of the survivors of the homicide: family members or close friends of the decedent. It may include a written statement that is read to the jury, oral testimony by a survivor, writings of the decedent, items in the possession of the decedent at the time of death, and/or audiovisual presentations. VI evidence may also be entered by an independent representative of the survivors or by the prosecutor during closing arguments.

Read more: Victim Impact Evidence: People in Payne