Appendix E -10 Defendant's Motion for Judicial Review of Victim Impact Evidence

• Library: How to Try a Murder Case: Pretrial and Trial Guidelines for Prosecution and Defense (ABA) (2011 Ed.)

APPENDIX E-10 Defendant's Motion for Judicial Review of Victim Impact Evidence

Defendant, by undersigned counsel, respectfully requests that this Honorable Court conduct a pretrial review of all victim impact evidence the State intends to introduce at the capital sentencing proceeding, and in support thereof states the following:

1. Defendant is charged with first-degree murder and related offenses in the above-captioned matter.
2. The State has filed a Notice of Intention to Seek a Sentence of Death.
3. The United States Supreme Court in Payne v. Tennessee, 501 U.S. 808 (1991), held that the Eighth Amendment erects no per se bar to the admission of certain victim impact evidence during the sentencing phase of a capital case.
4. The Payne Court, however, acknowledged that victim impact evidence can be so unduly prejudicial as to render the sentencing proceeding fundamentally unfair and violative of the Due Process Clause of the 14th Amendment. Id. at 825.
5. Justice O'Connor, in her concurring opinion in Payne, recognized that evidence that is unduly inflammatory may "so infect[] the sentencing proceeding as to render it fundamentally unfair" and require the defendant to "seek appropriate relief under the Due Process Clause." Id. at 831 (O'Connor, J., concurring).
6. Justice Souter, in his concurring opinion, similarly acknowledged that "[e]vidence about the victim and survivors, and any jury argument predicated on it, can of course be so inflammatory as to risk a verdict impermissibly based on passion, not deliberation." Id. at 836 (Souter, J., concurring).
7. Justice Souter further stated, "With the command of due process before us, this Court and the other courts of the state and federal systems will perform the 'duty to search for constitutional error with painstaking care, 'an obligation' never more exacting than it is in a capital case.'" Id. at 837 (quoting Burger v. Kemp, 483 U.S. 776, 785 (1987)).
8. In accordance with the Payne decision, it is, therefore, incumbent upon the Court to preliminarily determine if the victim impact evidence that the State intends to introduce at the capital sentencing proceeding is beyond the scope of that which has been constitutionally sanctioned by the Payne Court, and/or is so unduly prejudicial, and/or so inflammatory as to violate the principles of fundamental fairness and the constitutional requirements of the Due Process Clause.
9. In making this determination, the Court must first be advised of the exact

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