SERIES 700 HOMICIDE: SPECIAL CIRCUMSTANCES AND DEATH PENALTY
F 763 Notes
TABLE OF CONTENTS
F 763.3 (Factor a) Note 1 Victim Impact: Legal Issues
F 763.3 (Factor a) Note 2 Victim Impact: Improper Characterization Of The Defendant
F 763.3 (Factor a) Note 3 Victim Impact: Strategy
F 763.3 (Factor a) Note 4 Response To Argument That Lingering Doubt Is Included In Other Factors: Arguing That Lingering Doubt Is Included In Statutory Factors
F 763.3 (Factor a) Note 5 Propriety Of Lingering Doubt Instruction When Alternate Juror Is Substituted In
Return to Series 700 Table of Contents.
F 763.3 (Factor a) Note 1 Victim Impact: Legal Issues
1. Expanded Scope In California. The scope of the admissibility of victim impact evidence and the bounds of permissible argument have been greatly expanded since it first surfaced in People v. Edwards (1991) 54 C3d 787. (See e.g., People v. Caitlin (2001) 26 C4th 81, 175-76; People v. Lucero (2000) 23 C4th 692, 728.)
2. Applicability Of Victim Impact From Past Crimes. The highest court of every state which has ruled on the issue of past-crimes-victim-impact has expressly limited victim impact to the capital crime for which the defendant is being sentenced. (See CACJ/CPDA Manual “Penalty Phase Aggravation And Rebuttal,” pages 53-54; but see People v. Mendoza (2000) 24 C4th 130, 185-86 [dicta stating past crimes victim impact permissible]; People v. Taylor (2001) 26 C4th 1115, 1172 [impact of other crimes may be allowed if related to the capital crime].)
3. Victim Impact Must Be Factual And Not Extend To Opinion Testimony As To The Appropriate Sentence. “It is clear that the prosecution may not elicit the views of a victim or victim’s family as to the proper punishment.” (People v. Smith (2003) 30 C4th 571, 622; see also Payne v. Tennessee (1991) 501 US 808, 826-27 [115 LEd2d 720; 111 SCt 2597].)
F 763.3 (Factor a) Note 2 Victim Impact: Improper Characterization Of The Defendant
(See United States v. Bernard (5th Cir. 2002) 299 F3d 467 [plain error for victim’s mother to testify that she was sorry that the petitioners’ “hearts were so hard,” and a father’s characterization of the crime as “tragic,” “reckless,” a “useless act of violence,” and “a total disregard for human life,” that occurred when the victims “saw a chance to witness young people placing themselves in harm’s way”].)
CALJIC NOTE: See FORECITE F 8.85 n28.
F 763.3 (Factor a) Note 3 Victim Impact: Strategy
1. In preparing for victim impact witnesses, counsel must not only aggressively pursue discovery of victim impact evidence and insist on compliance with such discovery, but must also investigate such evidence and potential cross-examination and rebuttal. An excellent source for preparation and investigation ideas is featured in “Preparing for Victim Impact Witnesses,” a subsection of “Dealing with Victim Impact” by Michael Ogul, Assistant Public Defender, Alameda County. See Article Bank # A-75 for this article.]
2. Victim Impact: Motion For Video Tape In Lieu Of Live Testimony. Victim impact testimony “can be problematic because of the potential for emotional outbursts during the testimony of family members.” (U.S. v. O’Driscoll (M.D. Pa. 2002) 203 FSupp2d 334, 340-41; see also U.S. v McVeigh (D. Colo. 1996) 944 FSupp 1478, 1491 [victim impact is “the most problematic” of aggravating factors].)
Hence, in exercising its discretion over prejudicial evidence, the court should “seriously consider” that victim impact evidence be presented by video tape. (O’Driscoll, 203 FSupp2d at 341, fn 6.)
For a motion requesting video tape in lieu of live testimony, see Motion Bank # M-3017.
3. Victim Impact: Motion To Instruct Witnesses On Limitations Of Testimony. Victim impact testimony “can be problematic because of the potential for emotional outbursts during the testimony of family members.” (U.S. v. O’Driscoll (M.D. Pa. 2002) 203 FSupp2d 334, 340-41; see also U.S. v. McVeigh (D. Colo. 1996) 944 FSupp 1478, 1491 [victim impact is “the most problematical of all the aggravating factors”].)
“Allowing victim impact information to be placed before the jury without proper limiting instructions has the clear capacity to taint the integrity of the jury’s decision on whether to impose death.” (State v. Hightower (1996) 680 A2d 649, 661; see also Wayne Logan, “Through The Past Darkly: A Survey Of The Uses And Abuses Of Victim Impact Evidence In Capital Trials,” 41 Az. L. Rev. 143, 180 (1999) [“[D]ue process and fair play require explicit acknowledgment by the trial court that jurors are not to make use of impermissible impact evidence”].)
Accordingly, special procedures should be considered to limit victim impact testimony from becoming overly emotional and prejudicial. (See e.g. F 8.85 n25 and F 8.85 n27.)
Accordingly, to evaluate the potential prejudice of victim testimony the trial court should:
1) Require the trial court to submit a written statement describing the proposed testimony of each victim impact witness (U.S. v. Glover (D.Kan. 1999) 43 FSupp2d 1217, 1235-36);
2) Adopt instructions to be given to the witnesses relating to control of their emotions. (Ibid.)
For a motion requesting cautionary victim impact instructions to witnesses and the jury, see Motion Bank # M-3017.
4. Victim Impact: Motion For Prior Disclosure Of Proposed Testimony. In order to evaluate the potential prejudice of victim impact testimony it may be appropriate to require the prosecution to submit a written statement describing the proposed testimony of each victim impact witness. (U.S. v. Glover (D.Kan. 1999) 43 FSupp2d 1217, 1235-36; see also U.S. v. O’Driscoll (M.D. Pa. 2002) 203 FSupp2d 334, 340-41.)
For a motion requesting video tape in lieu of live testimony, see Motion Bank # M-3017.
CALJIC NOTE: See FORECITE F 8.85 n27.
5. Victim Impact Evidence: Preparation, Discovery and Investigation. In preparing for victim impact witnesses, counsel must not only aggressively pursue discovery of victim impact evidence and insist on compliance with such discovery, but must also investigate such evidence and potential cross-examination and rebuttal. An excellent source for preparation and investigation ideas is featured in “Preparing for Victim Impact Witnesses,” a subsection of “Dealing with Victim Impact” by Michael Ogul, Assistant Public Defender, Alameda County. This article is available to FORECITE subscribers. [Article Bank # A-75.]
See also FORECITE F 8.85 n21.
CALJIC NOTE: See FORECITE F 8.85 n23; F 8.85 n25; F 8.85 n26.
F 763.3 (Factor a) Note 4 Response To Argument That Lingering Doubt Is Included In Other Factors: Arguing That Lingering Doubt Is Included In Statutory Factors
People v. Musselwhite (1998) 17 C4th 1216, 1273, reaffirmed the Supreme Court’s view that a specific instruction on lingering doubt is not required, even on request, because lingering doubt is encompassed within the catch-all factor “k” language. In Musselwhite, the court said: “defendant provides no explanation why the factor (k)—derived instruction that was given to the jury—failed to convey the notion of residual doubt in his case.” [Original emphasis.]
Responses to this position could include the following:
1. Evidence could be presented as to the empirical studies which have proven that jurors do not in fact fully understand the currently utilized penalty phase instructions. (See, PG II(K).)
2. Since the Supreme Court has concluded that the lingering doubt factor is included within factor “k,” counsel should be free to rely on the Supreme Court’s position during argument. Thus, counsel might argue: “The California Supreme Court has ruled that lingering doubt as to guilt is a mitigating factor which you may consider in deciding which penalty to impose. You have not been specifically instructed upon lingering doubt as a mitigating factor because the court has ruled that it is included in the general mitigation instruction. Therefore, the law requires you to read the general mitigation instruction to include lingering doubt as a potential mitigating factor which you should consider.” (See FORECITE PG VI(C)(10); see also PG I(F).) It might also be beneficial to inform the jury that this is why a more specific instruction on this point was refused. Visuals with the crucial language might also be useful. (See also FORECITE F 200.5 Inst 2.)
By promoting a reliable, non-arbitrary, and individualized sentencing determination, or discriminatory, this instruction protects the defendant’s federal constitutional rights to be free from cruel and unusual punishment and to due process and equal protection. (8th and 14th Amendments.) (E.g., Sochor v. Florida (1992) 504 US 527 [119 LEd2d 326; 112 SCt 2114]; Penry v. Lynaugh (1989) 492 US 302, 318 [106 LEd2d 256; 109 SCt 2934]; Clemons v. Mississippi (1990) 494 US 738 [108 LEd2d 725; 110 SCt 1441]; McCleskey v. Kemp (1987) 481 US 279 [95 LEd2d 262; 107 SCt 1756].)
F 763.3 (Factor a) Note 5 Propriety Of Lingering Doubt Instruction When Alternate Juror Is Substituted In
When an alternate juror is substituted during the penalty trial, the alternate is instructed that he or she is bound by the guilt phase verdicts. (See CC 3576, paragraph 2.) Therefore, without a lingering doubt instruction, the alternate juror may not understand that he or she may consider lingering or residual doubt as to guilt in deciding on whether or not to vote for the death penalty. (See People v. Gray (2005) 37 C4th 168, 232.)
