Affective forecasting and capital sentencing: reducing the effect of victim impact statements.

• Author: Blumenthal, Jeremy A.

Victim impact statements ("VIS") at capital sentencing tend to increase the likelihood of a death sentence. Four empirical mock juror studies examined whether expert testimony about affective forecasting--the prediction of future emotional reactions to hypothetical events--can eliminate that effect. I predicted that VIS would increase the likelihood of death sentences, but that expert testimony about affective forecasting would attenuate that effect and reduce death sentences to a rate as though there were no VIS. The hypothesis was supported, in particular when participants specifically rated the expert as credible. Implications for practitioners and for future research are discussed.

1. INTRODUCTION

   1. Emotion and Victim Impact Statements

      The role of emotions in the legal system is receiving increased attention in the legal academy. (1) Legal academics have recently sought to identify emotions' influence on litigants' decisions before and after trial; (2) to review their impact on jury decisions; (3) and even to incorporate emotions into models of rational decision-making, arguing that decisions made under the influence of emotion are nevertheless "rational." (4) Other commentators note the many errors to which emotional decision-making can lead (just as with cognitive heuristics and biases), with some suggesting that paternalistic intervention may be warranted to protect individuals against such errors and biased decisions. (5)

      Traditionally, discussions of emotions' relevance to the law have framed them as a counterpoint to rational thought: emotion has typically been viewed as a corruptive force that distorts logical reasoning. (6) One of the most common examples of the biasing or corruptive effect of emotion is in the context of victim impact statements ("VIS") presented at the sentencing stage of capital trials, typically by the victim's family or friends. (7) Broadly, VIS (a) identify the offender, (b) indicate the victim's financial losses, (c) describe the victim's physical injuries including seriousness and permanence, or (d) describe changes to the victim's personal welfare or familial relationships. (8) In capital trials, of course, the victim cannot testify, and family members typically present such testimony. In 1987, however, in Booth v. Maryland, (9) the U.S. Supreme Court held that the introduction of VIS during the sentencing phase of a capital murder trial violated the Eighth Amendment; two years later, in South Carolina v. Gathers, the Court also limited prosecutors' ability to introduce evidence of victims' character that was not relevant to the circumstances of the crime. (10) After another two years, however, the Court changed course, ruling that considering the harm caused by a defendant had always been a focus in determining punishment, and, further, that allowing such testimony could emphasize each victim's "uniqueness as an individual human being." (11)

      Courts and commentators have criticized the use of VIS as tending to emotionally bias capital jurors, most likely in favor of a death sentence, but in any event away from the factors and evidence that are in fact "relevant" to the sentencing decision. (12) These critics argue that the powerful emotion generated by VIS undermines rational and reasoned decision-making of the sort the Court has deemed necessary in capital sentencing. (13)

      In response, a number of scholars turned to empirical examination of these objections to VIS, testing whether jurors (mock or real) in fact impose more death sentences after being exposed to VIS. (14) In some of the earliest work, for instance, Luginbuhl and Burkhead presented undergraduate mock jurors with different crimes (either a moderately or a severely aggravated homicide); half the mock jurors were also presented with victim impact testimony and half were not. (15) The authors' hypothesis that mock jurors presented with VIS would be more likely to impose a death sentence was supported; half of those who read such testimony voted for death, while only twenty percent of those who did not voted for death. (16) A subsequent study by Myers and Arbuthnot demonstrated that of those undergraduate respondents who voted guilty in a mock trial, two-thirds of those exposed to VIS would impose a death sentence, though only thirty percent of those not exposed would do so. (17) In other empirical studies, Greene and colleagues found that the presence of VIS--or, similarly, information that indicated that a victim should be thought of as "admirable" or "respectable"--led to mock jurors' perceptions that survivors were affected by the crime more and deserved greater compassion. (18)

      These and other empirical studies, including one examining patterns of actual jury sentencing in California, (19) suggest an overall small but consistent effect of VIS in increasing the likelihood of death sentences. (20) Identifying this effect has typically led to calls for the abolition of VIS, for a return to the point when they were unconstitutional (21)--an all-or-nothing sort of approach. Most commentators, however, think abolition unlikely, suggesting that VIS in some form are simply "here to stay." (22) Accordingly, those concerned about biasing effects of the testimony have turned attention to means of counteracting or reducing the influence of VIS on the capital jury.

      One such approach has been to introduce evidentiary or other procedural constraints on the admission of VIS. (23) Oklahoma courts, for instance, require the prosecution to submit a notice as to what testimony will be proffered and require an in camera heating to determine whether that testimony's relevance is outweighed by its prejudice. (24) Similarly, before abolishing the death penalty in 2007, (25) New Jersey required the trial judge to approve the potential evidence, and put other restrictions on who could present testimony, how many family members could testify, and how old such witnesses could be. (26) These and several other States also require that the capital jury be instructed as to the goal and appropriate use of VIS. (27)

      Other proposals have focused on providing additional information at sentencing, in order to counteract the effect of VIS. For instance, commentators have suggested that the defendant's family should also be allowed to address the jury in the form of "execution impact statements." (28) The argument goes that allowing such testimony could provide mitigation evidence, offering evidence not only about the defendant's character, but also, and primarily, about the impact his death would have on family and friends. For instance, it might provide circumstantial evidence from which a jury could infer that, were the defendant to be executed, family members would be adversely affected because of their positive relationship with him. (29) In turn, that positive relationship would be inferred to stem from something positive about the defendant's background or character and thus to warrant consideration as mitigation evidence. (30) Alternatively, commentators argue that such testimony from defendant's family members should be admissible to balance any VIS that are admitted. (31) In particular, when testimony about the specific pain that victims' family members will suffer is admitted, the jury should also hear evidence about the stigmatization, social isolation, and depression that defendants' family members will suffer. (32) With few exceptions, however, execution impact testimony has been rejected by courts as irrelevant to the defendant's character or record, or to the circumstances of the offense. (33)

   2. Affective Forecasting and Victim Impact Statements

      An alternative approach to countering the effect of VIS also involves presenting additional evidence, but in the form of expert testimony concerning "affective forecasting," (34) or the prediction of future emotional reactions to hypothetical events--both one's own reactions and those of other people. (35) A substantial body of empirical research demonstrates that people's predictions in such contexts are surprisingly inaccurate. (36) Although individuals are generally accurate at predicting the valence of emotional reactions--e.g., a positive event will make one happy and a negative event will make one unhappy--predictions of the intensity and the duration of those reactions are generally inaccurate. (37) Such prediction errors influence reactions to all kinds of life events, including "romantic breakups, personal insults, sports victories, electoral defeats, parachute jumps, failures to lose weight, reading tragic stories, and learning the results of pregnancy and HIV tests." (38)

      With few exceptions, people tend to overestimate the emotional impact such events will have on their lives. We do so for a number of reasons--for instance, we focus too much on an event itself, rather than on surrounding circumstances or subsequent events; and we fail to consider the likelihood that we will adapt to a particular situation, either learning to cope with an adverse event or gradually acclimatizing to a positive one. (39)

      In a recent review of the empirical research in this area, I identified a number of areas in the legal system to which affective forecasting is relevant. (40) For instance, civil jurors' awards of non-monetary damages (e.g., pain-and-suffering awards) may be too large, to the extent they are based on jurors' predictions of the emotional reactions tort victims will suffer. If jurors do not take into account things that will occur in the future that likely will alleviate the negative emotional experience caused by the tort injury, then their estimates of the pain tort victims will suffer will be too high, and those victims will, from an objective viewpoint, be over-compensated. (41) A similar effect might occur in the context of VIS and capital sentencing. Again, part of VIS involves victims' family members testifying to the predicted future pain they will experience...