Victim Character Evidence in Death Penalty Cases

DOI10.1177/0734016809338559
Date01 December 2009
AuthorPeter J. Nelligan,Jane A. Younglove,Ronald L. Reisner
Published date01 December 2009
Subject MatterArticles
Victim Character Evidence in
Death Penalty Cases
How Many Songs Is Too Many?
Jane A. Younglove
Peter J. Nelligan
California State University, Stanislaus
Ronald L. Reisner
Monmouth University
The U.S. Supreme Court’s Payne decision opening the door to victim impact testimony in
capital cases generally, and to victim character evidence particularly, has been controversial.
The issue is whether a murder victim’s character is relevant to the moral blameworthiness of
the defendant. Several mock jury simulation studies have shown that such evidence does
influence jury decisions imposing the death penalty. The current study took a different
direction and examined the nature and extent of actual victim character testimony in samples
of death penalty cases in three states. Data were derived from 14 transcripts of the penalty
phase of trials in each of three states: California, New Jersey, and Texas, states with different
political and legal climates. Content analysis revealed that there were numerous references to
victims’ character in the form of positive personality traits, in addition to descriptions of the
impact the crime had on the victims’ families and friends. Qualitative analysis revealed that
many witnesses were allowed to use photos, videotapes, and other personal items to portray
the victim’s life. What emerges from this inside view of practices in courtrooms is disturbing
in that the evidence allowed seems to exceed Payne’s already meager limitations.
Keywords: Victim impact statements; victim character evidence; death penalty trials
Well,I [the Cour t] tend to agree that you’re entitled to show the jury something about the victim
and the person that she was close to the time of her death. And we have evidence about her
musical talent as one of her characteristics, and I would think that one song or one demonstra-
tion of that would be sufficient to establish that. I don’t believe it’s necessary to have to play
three songs for that purpose, and I do think it is cumulative from that standpoint. So my ruling
will be that I will allow you to show the jury a video example of her musical talent with one
song, but I don’t think it’s necessary to have them view three of them, or any more than one.
(California v. Miles, p. 6091, 2000)
Authors’ Note: The authors wish to express sincere gratitude to Linda Fox of the California Appellate Project for
her support in making the California trial transcripts available for this research. Please address correspondence to
Jane A. Younglove, Criminal Justice Department, California State University, Stanislaus, One University Circle,
Turlock, CA, 95382; e-mail: jyounglove@csustan.edu.
Criminal Justice Review
Volume 34 Number 4
December 2009 536-552
#2009 Georgia State University
Research Foundation, Inc.
10.1177/0734016809338559
http://cjr.sagepub.com
hosted at
http://online.sagepub.com
536
Since Payne v. Tennessee (1991) allowed victim impact statements in capital cases, a
number of studies, primarily simulations, have sought to measure the effect of such tes-
timony on jury decisions. However, little is known about courtroom practices in presenting
and limiting such testimony. This study presents an analysis of data from actual capital trial
transcripts. Moreover, it explores a particularly controversial form of such evidence—
victim character testimony.
Payne v. Tennessee (1991) overturned two earlier decisions—Booth v. Maryland (1987)
that had disallowed victim impact testimony, and South Carolina v. Gathers (1989) that had
prohibited a prosecutor from even referring to victim impact. Since then, a number of studies
have assessed the effect of such evidence in capital jury decision-making. They stronglysug-
gest that the death penalty tends to be imposed more often when victim impact evidence is
offered (see, e.g., Luginbuhl & Burkhead, 1995; Myers & Arbuthnot, 1999; Myers &
Greene, 2004; Myers, Lynn, & Arbuthnot, 2002; Platania & Berman, 2006). In a study of
sentencing outcomes in 151 capital cases from California between 1989 and 1994, that is,
pre- and post-Payne, Aguirre, Davin, Baker, and Konrad (1999) found that when victim
impact evidence was not introduced in the post-Payne period, the cases were evenly distrib-
uted between receiving the death penalty and life in prison; however, when victim impact
evidence was introduced, receiving the death penalty was twice as likely (Aguirre et al.,
1999).
One criticism of victim impact evidence has been that because it is offered in an emotion-
ally charged situation—the penalty phase of a capital case where life and death decisions
literally are made—jurors are swayed by the emotionality rather than the actual content.
However, Myers et al. (2002) indicated that this might not be the case; rather, the content
of the statement and not the emotional manner in which it usually is presented may be more
of an influence. Content, then, in the form of information about har m to the victim’s family
may be more instrumental in sentencing decisions.
Another type of impact testimony that jurors may hear in capital cases is highly contro-
versial because it shifts the focus away from the defendant and the harm to the victim’s fam-
ily, to the character of the victim. In fact, this type of evidence was a major issue in Booth v.
Maryland (1987), one of the two cases overturned by Payne.InBooth, Justice Powell
expressed concern that hearing victim character testimony may sway juries to consider
defendants more deserving of the death penalty when the victim is perceived as an asset
to a community. Greene, Koehring, and Quait (1998) tested the validity of this concern using
mock jurors’ perceptions of the victim’s respectability, and found this concern to be justified.
While the study is open to criticism as (a) a simulation study, and (b) focusing not on sen-
tencing determination but on seriousness of the crime, it does lend support to the notion that
jurors do consider information that does not bear directly on the defendant’s moral blame-
worthiness. (For excellent information on the methodological concerns pertaining to jury
simulation studies, see, e.g., Diamond, 1997, and Myers & Greene, 2004.)
Furthermore, as noted in Myers and Greene (2004), opponents of victim impact state-
ments point to the diversion that occurs in jurors from focusing on the facts of a case to vic-
tim characteristics, allowing for arbitrary and capricious decision-making. The gist of the
criticism is that death penalty decisions may be influenced not by how much a victim was
harmed, but by who the victim was: ‘‘Those who harm the good are more likely to be found
guilty, blamed more, or punished more severely than those who harm the bad’’ (Myers &
Younglove, Nelligan and Reisner / Victim Character Evidence in Death Penalty Cases 537

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