Hastings Constitutional Law Quarterly


Niru Shanker


In the 1980's the Supreme Court barred the use of victim impact evidence at capital sentencing hearings as violative of the Cruel and Unusual Punishment clause. The Court reversed itself in Payne v. Tennessee, holding that the Eighth amendment erects no per se bar to victim impact evidence. Such evidence can be properly introduced if it is does not so inflame and prejudice the jury as to render the trial fundamentally unfair. Unfortunately, the Court did not provide any guidance to the lower federal and state courts to use in making that determination. There exists a risk, therefore, that many defendants may suffer from a lack of timely and effective state action to set parameters on the introduction of potentially inflammatory, arbitrary, and capricious evidence at capital sentencing in the form of victim impact evidence.

This Article will catalog the dangers and benefits of victim impact evidence, and review the various state approaches to the problem of unrestricted admissibility. A study will be made of the Oklahoma City bombing trial, in which Timothy McVeigh faced very damaging and potentially unconstitutional victim impact evidence, both because of its substantive content, and because of the number of victims and families who were affected. An inquiry will be made into the effectiveness of victim impact evidence in promoting the traditionally accepted goals of sentencing; concluding that at least some goals are served, and none is interfered with. The collective criticism of legal commentators will also be considered. Finally, the Article will offer useful methods which states can use to curtail the damage sure to result from unmoderated admission of victim impact evidence.