Silenced stories: how victim impact evidence in capital trials prevents the jury from hearing the constitutionally required story of the defendant.

AuthorMinot, Diana
  1. INTRODUCTION

    Compare these two quotes. The first comes from a victim impact statement at a capital sentencing trial. The second is information presented on behalf of a capital defendant at another capital sentencing trial. The victim impact statement matches more closely with most people's experience in the world. This Comment will argue that, for the typical juror, the victim impact statement is much easier to identify with, drowning out the story of the defendant, who is faced with the prospect of capital punishment. This makes the emotional story of the victim the only story given meaningful consideration by the jury.

    Cognitive psychology shows that humans filter new information through existing schema. (3) This Comment will define schemas and show how, because jurors generally have different life experiences than defendants, it is easier for the juror to identify with the murdered victim's schema than with the defendant's schema. Because of this, the stories told in victim impact evidence are unduly prejudicial, overwhelming any mitigating factors in a capital sentencing trial. Thus, the defendant does not have an opportunity to present evidence of his or her moral culpability as the Constitution requires in capital sentencing trials. (4)

    This argument will consist of five parts. Part II will discuss the current state of capital punishment jurisprudence in the United States. Part III will give an overview of the current state of the law on victim impact evidence, outlining how the Supreme Court initially proscribed such evidence but later reversed itself, and in doing so failed to give guidance to lower courts on what manner of victim impact evidence was acceptable. Part IV will give an overview and explanation of what are known in cognitive psychology as schemas. This will include an explanation of how schemas cause people to filter information in a predetermined way, potentially ignoring information that does not easily fit into this format.

    Part V will show how the schemas of most jurors cause them to easily accept the emotionally charged stories presented in victim impact statements, thereby silencing defendants' stories. Part VI will analyze the case of United States v. Sampson, contrasting the story of the victim told by the victim impact evidence with the story of the defendant told by mitigating evidence. (5)

  2. THE CURRENT STATE OF CAPITAL SENTENCING LAW

    To understand the argument against victim impact statements in capital trials, it is first necessary to understand the background of current capital sentencing jurisprudence. The death penalty's constitutionality is largely understood through the seminal case of Furman v. Georgia. (6) An overview of decisions regarding capital sentencing will show that, since Furman, the Supreme Court has focused its efforts on ending arbitrariness and discrimination in capital sentencing. Capital punishment is unique from other forms of punishment because it is absolutely irrevocable. (7) While law should always be fair, the irrevocability of capital punishment has led the Court to determine that it is especially imperative to be unwaveringly scrupulous and fair when meting out capital punishment. (8)

    1. FURMAN V. GEORGIA AND THE EIGHTH AMENDMENT'S PROHIBITIONS AGAINST CRUEL AND UNUSUAL PUNISHMENT

      Furman and other Court decisions in the late 1970s and early 1980s developed the constitutional doctrine that death sentences are "qualitatively different" from other criminal sentences. Strict oversight of state death sentencing was needed so that states' death-sentencing systems were evenhanded and nondiscriminatory. (9)

      The state has much greater power than an individual defendant. Because of this, the Eighth Amendment attempts to level the playing field between the defendant and the state by affording extra protections to defendants to counteract the greater power of the state. (10) The Supreme Court has ruled that a sentence of death must be proportionate to a particular offense; otherwise, it is cruel and unusual punishment. (11) Furman invoked the Eighth Amendment prohibition in the context of capital punishment by arguing that, because death sentences were imposed by juries in such a small minority of death-eligible cases and without guidelines or standards, these sentences therefore constituted cruel and unusual punishment. (12)

      The Court in Furman found punishment to be cruel and unusual if it was too severe for the crime, was imposed arbitrarily, offended society's sense of justice, or was not more effective than a less severe penalty. (13) This standard effectively invalidated the death penalty statutes of forty states, thereby commuting the sentences of 629 death row inmates across the country. (14) This standard also jeopardized the continuing viability of the death penalty. (15)

      Since Furman suspended the death penalty without condemning it forever, states wishing to impose the death penalty instituted a variety of new procedures in an attempt to correct the deficiencies in their death penalty statutes. (16) The Supreme Court had condemned these statutes as standardless, discretionary, and, therefore, unconstitutional. (17) What followed was an overhaul of state statutes governing the death penalty, with most state statutes now requiring the presence of at least one aggravating circumstance before a death sentence could be sought. (18) Most state laws identify between six and twelve factors as aggravating circumstances. (19)

    2. GREGG V. GEORGIA SANCTIONS THE STATE'S REVISIONS TO DEATH PENALTY SENTENCING PROCEDURES, APPROVING BIFURCATED TRIALS

      Following the states' overhaul of their death penalty statutes, the next important death penalty case the Supreme Court heard was Gregg v. Georgia, which affirmed the constitutionality of the death penalty as punishment for murder. (20) In addition to ruling that the death penalty itself was constitutional, the Court considered revised death penalty statutes from Florida, Georgia, and Texas, and held them constitutional, noting that the new Georgia statute had sufficient safeguards to prevent the risk of the arbitrary or excessive death sentences that the Court had condemned in Furman. (21)

      Also important in Gregg was the Supreme Court's approval of bifurcated trials. (22) The Court recognized that the sentencer in a capital trial must have discretion to consider the particular character and record of the offender and the circumstances of the particular offense, and that capital sentencing must be contextual and particularistic. (23) States accomplished this in their revised death penalty statutes through bifurcated trials. (24)

      A bifurcated trial consists of a guilt phase and a sentencing phase. In the guilt phase, the jury hears evidence and argument relating only to the defendant's guilt. The jury's task in this phase is to determine whether or not the defendant is guilty of murder. (25) If the jury decides that the defendant is guilty of murder, the trial goes into the second phase, the sentencing phase. In the sentencing phase, the prosecution and defense present evidence relating to an appropriate sentence. (26)

    3. AN EXPLANATION OF AGGRAVATING AND MITIGATING FACTORS

      As an example of a death penalty statute, 18 U.S.C. [section] 3593 is the federal statute requiring a separate trial for the guilt and sentencing phases of a capital trial. (27) The statute governs the sentencing phase of a capital trial, which calls on the jury to decide two things: whether the defendant is eligible for the death penalty, and, if so, whether the death penalty is justified. (28) For the defendant to be eligible for the death penalty, the jury must find that at least one aggravating factor has been proven beyond a reasonable doubt. (29) The sentencing trial must include the opportunity to present aggravating and mitigating factors. (30) Any mitigating factor is considered relevant if it has any tendency to make any fact of consequence to the determination of the action more or less likely than it would have been without the evidence. (31)

      Further, 18 U.S.C. [section] 3592 outlines some aggravating and mitigating factors that are either permitted or required. (32) Victim impact evidence is generally considered a non-statutory aggravating factor. (33) Information is admissible regardless of its admissibility under the Federal Rules of Evidence, but the evidence may be excluded if its probative value is outweighed by the danger of creating unfair prejudice. (34) Although current law does not consider victim impact statements unfairly prejudicial, this Comment will argue that such statements do indeed cause unfair prejudice.

      The government's burden of proof for aggravating factors is beyond a reasonable doubt. (35) The defendant's burden of proof for mitigating factors is preponderance of the evidence. (36) Separating the guilt and sentencing phases allows the jury to consider evidence during sentencing that was inadmissible for determining guilt but is relevant to the sentencing decisions Additionally, the Supreme Court has ruled that a jury must be allowed to give meaningful consideration to relevant mitigating evidence. (38) Any law or instruction from the bench prohibiting the jury from considering any particular mitigating factor is unconstitutional. (39) A defendant's right to have mitigating evidence considered is meaningless if the sentencer is not permitted to consider it in imposing a sentence. (40)

      Lockett v. Ohio emphasized the significance of mitigating factors. (41) A plurality in Lockett held that meaningful consideration of mitigating factors is required regardless of the severity of the crime or whether or not the defendant has potential for future dangerousness. (42) For a defendant to be sentenced to death, the jury must determine that the aggravating factors outweigh the mitigating factors enough to justify death. (43)

      The bottom line of death penalty jurisprudence is that death is different from other...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT