Hastings Constitutional Law Quarterly


In striking down the use of victim impact evidence ("VIE") during the penalty phase of a capital trial, the Supreme Court in Booth v. Maryland and South Carolina v. Gathers argued that such testimony would appeal to the emotions of jurors with the consequence that death sentences would not be based upon a reasoned consideration of the blameworthiness of the offender. After a change in personnel, the Court overturned both decisions in Payne v. Tennessee, decided just two years after Gathers. The majority in Payne were decidedly less concerned with the emotional appeal of VIE, arguing that it would only present a "quick glimpse of the life" taken by the offender, and that such testimony would provide the sentencer with a fuller account of the harm done by the offense and therefore a more accurate picture of the offender's culpability.

In this paper we present the results of an experiment using potential jurors selected from a jury registration list of a large city. Subjects were "death qualified" and voir dired so that they would be eligible for jury service in a capital case; provided with a written summary of a real murder case involving the killing of a police officer; and randomly assigned to watch a videotape of an actual capital penalty trial. All subjects then completed a questionnaire which among other things asked them what sentence they would have imposed in the case if they were a juror. We found that those who viewed the victim impact testimony were more likely to feel empathy and sympathy for the victim and victim's family, more likely to state that empathy and sympathy for the victim and victim's family were important considerations in their sentence, more likely to believe that the victim's family was coping poorly with their loss, more likely to believe that a death sentence would provide comfort and closure for the family, and more likely to impose a sentence of death.

Our findings put two important issues on the table. First, while there is a well established methodology for the law, some legal questions are at their heart empirical questions and can effectively be addressed by social scientific, empirical methods. We hope that this article leads legal scholars to look to empirical methods to answer questions that clearly are empirical ones, and leads social scientists for look for legal questions to apply their empirical methods to. Secondly, our findings raise concerns about the prejudicial nature of victim impact evidence in capital cases. The VIE in the case we studied was a relatively mild one compared with many that have been permitted by trial courts and yet we observed that they had a powerful impact on the emotions of potential jurors and ultimately the behavior of jurors in response to their feelings. Although we would agree that additional empirical work in the area of victim impact is essential (for example, can judges' instructions serve to temper the emotional impact of VIE?), it is just as clear that the presumption of the U.S. Supreme Court in Payne v. Tennessee that VIE simply gives the penalty phase jurors a "quick glimpse of the life" of the victim whose life was taken was as overly optimistic as it was wrong.