Article Bank # A-75
Dealing with Victim Impact
Assistant Public Defender, Alameda County
November 17, 1999
The scope of admissible victim impact evidence has yet to be settled. Despite the rulings by the Supreme Courts of the United States and State of California that application of factor (a) is not unconstitutionally vague, it should be noted that none of the opinions in these cases discuss the issue of whether the factor regarding the circumstances of the crime (Pen. Code § 190.3(a)) is unconstitutionally vague or overbroad in the wake of decisions by the California Supreme Court allowing consideration of evidence and argument of victim impact matters under the guise of circumstances of the crime (e.g., People v. Edwards (1991) 54 Cal.3d 787, 835-836). Thus, counsel should be encouraged to argue that “the circumstances of the crime” is unconstitutionally vague and overbroad under the Eighth, Fifth and Fourteenth Amendments to the United States Constitution to the extent it allows evidence and consideration of victim impact.
The decision in Edwards, supra, 54 Cal.3d 787, relied on the holding in Payne v. Tennessee (1991) 501 U.S. 808, 827, [111 S.Ct. 2597, 115 L.Ed.2d 720] “that if the State chooses to permit the admission of victim impact evidence and prosecutorial argument on that subject, the Eighth Amendment erects no per se bar.” In so holding, the United States Supreme Court overruled its decisions in Booth v. Maryland (1987) 482 U.S. 49 [96 L.Ed.2d 440, 107 S.Ct. 2529], which created a per se bar to victim impact evidence, and South Carolina v. Gathers (1989) 490 U.S. 805, which prohibited prosecution argument on the subject. Factually, in Payne, a mother and her 3 year old daughter were killed with a butcher knife in the presence of the mother’s 2 year old son, who survived critical injuries suffered in the attack by defendant. The prosecution presented the testimony of the boy’s grandmother that he missed his mother and sister, and argued, among other things, that he will never have his “mother there to kiss him at night. His mother will never kiss him good night or pat him as he goes off to bed, or hold him and sing him a lullaby.” (Payne, supra, 501 U.S. 808, 816.) Still, the Payne court warned there are limits to victim impact evidence, and observed that it would violate the federal constitutional guarantee to due process of law to introduce victim impact evidence “that is so unduly prejudicial that it renders the trial fundamentally unfair . . . .” (Payne v. Tennessee, supra, 501 U.S. 808, 825 [111 S.Ct. 2597, 2608, 115 L.Ed.2d 720].)
The specific language in Edwards, supra, 54 Cal.3d 787–which was unnecessary to the holding–was as follows:
“We thus hold that factor (a) of section 190.3 allows evidence and argument on the specific harm caused by the defendant, including the impact on the family of the victim. This holding only encompasses evidence that logically shows the harm caused by the defendant. We do not now explore the outer reaches of evidence admissible as a circumstance of the crime, and we do not hold that factor (a) necessarily includes all forms of victim impact evidence and argument allowed by Payne, supra, 501 U.S. ___ [115 L.Ed.2d 720, 111 S.Ct. 2597].” (Id., at pp. 835-836.)
Thus, in addition to raising constitutional vagueness challenges to the unknown breadth of victim impact evidence permitted by Edwards, defense counsel should seek to limit such evidence to the impact on the victims of the crimes for which defendant was convicted at the guilt phase and which are directly related to the capital offense, as occurred in Payne v. Tennessee, supra.
Further, counsel should object to any evidence of circumstances of which defendant could not reasonably have been aware at the time of the capital offense. For example, if the victim was a nun in a church but was not wearing distinctive religious clothing when she was killed, then counsel should object to any evidence concerning the victim’s role in the church because it would be unfair to punish defendant based on circumstances which he could not reasonably have been sensitive to. (See People v. Fierro (1991) 1 Cal.4th 173, 264 (conc. and dis. opn. Kennard, J.), wherein Justice Kennard concluded that, “[a]s used in section 190.3, ‘circumstances of the crime’ should be understood to mean those facts or circumstances either known to the defendant when he or she committed the capital crime or properly adduced in proof of the charges adjudicated at the guilt phase.”) Such objections should be based on the due process clauses of the independent State and Federal Constitutions (Article I, sections 15 and 24, of the California Constitution; Fifth and Fourteenth Amendments to the United States Constitution), and the need for reliability in the application of the death penalty (Fifth, Eighth and Fourteenth Amendments). In support of these objections, counsel should cite not only the foregoing opinion of Justice Kennard, but her analysis of the relevant decisions by the United States Supreme Court. As she observed, in Payne, supra, the Court held that victim impact evidence was admissible at penalty phase, not as a circumstance of the crime, but as its own independent factor, characterized as the “harm caused by the crime.” By contrast, recognized Justice Kennard, the Payne court did not retreat from its previous holding in South Carolina v. Gathers, supra, 490 U.S. at pp. 811-812 [104 L.Ed.2d at p. 883], “that the term ‘circumstances of the crime’ did not include personal characteristics of the victim that were unknown to the defendant at the time of the crime.” (People v. Fierro, supra, 1 Cal.4th 173, 260 (conc. and dis. opn. Kennard, J.).)
The Tennessee Supreme Court recently expressed similar concerns about the admissibility of victim impact evidence describing matters which were unknown to the defendant. In State v. Nesbit (Tenn. 1998) 978 S.W.2d 872, the court held
“that a trial court may consider the defendant’s specific knowledge about the victim’s family when evaluating the probative value of victim impact proof on the appropriateness of the death penalty and when determining if probative value is substantially outweighed by prejudicial effect. In our view, probative value is particularly great, where the proof shows, as it did in this case, that a defendant had specific knowledge about the victim’s family when the crime was committed.”
By contrast, when defendant lacks such knowledge, the probative value is minimal if not nonexistent, and the evidence should be excluded. The defendant in Nesbit “had been acquainted with the victim for about a month, he knew that she was a single mother of five young children [and] . . . also knew that four of the victim’s children were in the apartment at the time of the murder.” Thus, the court upheld the admission of testimony from the victim’s mother that her “family had been very depressed as a result of the victim’s death and missed her very much[;]” she “had obtained legal custody of four of the victim’s children . . . [and] had resigned her employment to care for the children[;]” “that the four children in her custody had been receiving psychological therapy designed to help them cope with their loss[,] . . . the children had experienced nightmares and talked in their sleep since the murder, and often did not play well together[, and] . . . also had reenacted the murder while at play.”
Moreover, as noted in a concurring opinion in Payne v. Tennessee, supra, the decision does not address the admissibility of “another kind of victim impact evidence – opinions of the victim’s family about the crime, the defendant, and the appropriate sentence. As the Court notes in today’s decision, we do not reach this issue as no evidence of this kind was introduced at petitioner’s trial.” (501 U.S. at p. 833 (conc. opn., O’Connor, White, and Kennedy, JJ.).) Indeed, Booth, supra, specifically held such evidence inadmissible and, to that extent, remains good law. (Ibid.; Booth v. Maryland, supra, 482 U.S. 496, 503.)
Other legal challenges to the scope of victim impact evidence should seek exclusion of emotional evidence which is likely to provoke arbitrary or capricious action, in violation of the Fifth, Eighth and Fourteenth Amendments (Gregg v. Georgia (1976) 428 U.S. 153, 189: “where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action”; Gardner v. Florida (1977) 430 U.S. 349, 358: “It is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion”; see, also, Godfrey v. Georgia (1980) 446 U.S. 420, 428); and seek to exclude victim impact evidence under Evidence Code section 352 where the probative value is exceeded by the danger of undue prejudice or the evidence will result in an undue consumption of time; and limit the quantity of victim impact evidence. As observed by the New Jersey Supreme Court in New Jersey v. Muhammad (N.J. 1996) 145 N.J. 23, 54 [678 A.2d 164, 180]:
“The greater the number of survivors who are permitted to present victim impact evidence, the greater the potential for the victim impact evidence to unduly prejudice the jury against the defendant. Thus, absent special circumstances, we expect that the victim impact testimony of one survivor will be adequate to provide the jury with a glimpse of each victim’s uniqueness as a human being and to help the jurors make an informed assessment of the defendant’s moral culpability and blameworthiness. Further, minors should not be permitted to present victim impact evidence except under circumstances where there are no suitable adult survivors and thus the child is the closest living relative.”
In addition to the foregoing holding, which was articulated upon the invitation of the New Jersey Attorney General and county prosecutors in order to assure compliance with the federal constitutional guarantee of due process, the New Jersey Supreme Court defined the type of evidence which is properly admissible under victim impact. The testimony may include:
“A general factual profile of the victim, including information about the victim’s family, employment, education, and interests. The testimony can describe generally the impact of the victim’s death on his or her family. The testimony should be factual, not emotional, and should be free of inflammatory comments or references.” (New Jersey v. Muhammad, supra, 145 N.J. at pp. 54-54 [678 A.2d at p. 180].)
Similar rules have been pronounced by the Supreme Courts of Illinois and Tennessee. In People v. Hope (Ill. 1998) 702 N.E.2d 1282, the Illinois Supreme Court interpreted the provisions of The Illinois Rights of Crime Victims and Witnesses Act to limit victim impact testimony to “a single representative who may be the spouse, parent, child or sibling of a person killed as a result of a violent crime.” In State v. Nesbit, supra, 978 S.W.2d 872, the court held:
“Generally, victim impact evidence should be limited to information designed to show those unique characteristics which provide a brief glimpse into the life of the individual who has been killed, the contemporaneous and prospective circumstances surrounding the individual’s death, and how those circumstances financially, emotionally, psychologically or physically impacted upon members of the victim’s immediate family. Of these types of proof, evidence regarding the emotional impact of the murder on the victim’s family should be most closely scrutinized because it poses the greatest threat to due process and risk of undue prejudice, particularly if no proof is offered on the other types of victim impact.” (Citations and footnote omitted.)
The use of victims rights statutes to limit the type and scope of victim impact witnesses should not be discounted. Many states now have such statutes, and they frequently limit the type and number of victim impact witnesses who may be permitted to testify at sentencing hearings. For example, California Penal Code section 1191.1 provides in pertinent part that “the next of kin of the victim if the victim has died” may appear and testify “at the sentencing proceeding . . . .” While the statute was clearly enacted, inter alia, to assist victims in obtaining restitution, and not merely to assist the court in assessing the proper punishment, it should be argued that the statutory limitation on the type of witness-that is, to “the next of kin of the victim”-applies to the penalty phase of a capital trial because, after all, the penalty phase is a “sentencing proceeding” and the statute does not exclude capital trials from its reach. Further, it should be argued that the statute’s description of a singular victim impact witness, “or up to two of the victim’s parents or guardians if the victim is a minor,” limits the prosecution to a single victim impact witness at penalty phase, just as the Illinois Supreme Court interpreted the similar provisions of the Illinois statute. To be sure, People v. Mockel (1990) 226 Cal.App.3d 581, 585-587, holds the statute does not limit the number of persons who may send letters to the court for consideration at sentencing, but letters to a judge in a noncapital case are not comparable with the emotionally laden testimony of victim impact witnesses at the penalty phase of a death penalty trial. Further, the California Supreme Court would not be bound by the lower court’s opinion in Mockel in any event. Thus, defense counsel should assert that Penal Code section 1191.1 limits victim impact testimony to a single witness, who must be a “next of kin” of the decedent.
To date, the California Supreme Court decisions permitting consideration of victim impact matters have been fairly limited, and can be reconciled with a recognition that the evidence was admissible as part of the immediate circumstances of the crime. The question is, however, how far will the Court permit prosecutors to go?
In People v. Edwards, supra, the evidence merely consisted of photographs of the victims which were taken near the time of the crimes, in order to establish how the victims appeared to defendant when he committed the crimes against them. (54 Cal.3d at p. 828.)
People v. Mitcham (1992) 1 Cal.4th 1027, 1062-1063, upheld the admission of “evidence of the emotional and psychological trauma suffered by [a surviving victim of the an attempted murder committed at the same time as the capital offenses] subsequent to the crimes[,]” including “her extensive hospitalization for psychiatric problems, two nervous breakdowns, suicide attempts, hysteria, phobia of entering small stores, and continuing inability to work.” It should be noted, however, that no objection was made to such evidence pursuant to Evidence Code section 352, nor did the Supreme Court express an opinion on the merits of a such an objection. (Id., at p. 1064.) Further, defendant apparently had specific notice of the particular impact evidence presented.
In People v. Clark (1993) 5 Cal.4th 950, 1033, the court upheld prosecution arguments concerning the victim’s age, vulnerability and innocence because they “related directly to the circumstances of the crime.” The prosecutor was also allowed to call attention to evidence of the victim’s photograph and the contents of her suitcases as circumstances of the crime. (Ibid.)
Prosecution argument concerning the impact of the crime on the victim’s children was upheld in People v. Zapien (1993) 4 Cal.4th 929, 991-992, as part of the circumstances of the crime.
In People v. Wash (1993) 6 Cal.4th 215, 267, the court upheld the admission of evidence of the victim’s plans to enlist in the Army at the time of the offense, including the testimony of her mother that she discussed her plans to enlist in a telephone conversation shortly before the crime, and defendant’s testimony that he had talked to the victim about such plans; the court ruled that such plans were “generally relevant to the circumstances of the crime” and the prejudice of such evidence did not outweigh its probative value.
Note that, in People v. Kirkpatrick (1994) 7 Cal.4th 988, 1016-1017, the court not only upheld the prosecutor’s penalty phase argument referring “to the likely suffering of the friends and family members of the two” victims as an aggravating circumstance of the crime, but stated that
“[t]he argument need not be based upon specific testimony of the victim’s family members describing their emotions; the prosecutor can urge the jury to draw reasonable inferences concerning the probable impact of the crime on the victim and the victim’s family.”
No Victim Impact Testimony Should be Permitted Concerning any Crime Other Than the Current Capital Offense
Some prosecutors and/or judges may attempt to admit victim impact evidence concerning other violent criminal activity under factor (b), although the Supreme Court has never authorized the admission of victim impact evidence except under factor (a), the circumstances of the capital crime. Still, defense counsel must be forewarned that the Death Penalty Benchguide: Penalty Phase and Posttrial (CJER 1998) § 99.40, p. 99-30, states:
“The prosecution may present victim impact evidence as to factor (b) conduct. See, e.g., People v. Garceau (1993) 6 C4th 140, 201, 24 CR2d 664; People v. Mickle (1991) 54 C3d 140, 187, 284 CR 511.
JUDICIAL TIP: Many judges do not permit such evidence to range as widely as that pertaining to victims of the primary offense. Judges’ discretion under factor (b) is probably greater. See People v. Carpenter (1997) 5 C4th 312, 399-401, 63 CR2d 1. Some judges are inclined to keep out evidence of the impact of a factor (b) offense on a surviving victim.”
Contrary to the Benchguide, however, it should be clear that no victim impact evidence is permissible in regards to criminal activity admitted under factor (b).
The rationale of allowing evidence of victim impact as part of the circumstances of the capital crime is entirely inapplicable in the context of defendant’s other violent criminal activity, at least with the possible exception where the other criminal activity is actually charged and proven as a separate offense in the current capital proceedings, and is “related” to the capital crime. (See, People v. Alvarez (1996) 14 Cal.4th 155, 244, fn. 41, which recognizes that the “circumstances of the crime” under factor (a) would not include other crimes for which defendant was convicted in a consolidated trial on the capital charges unless the other crime “was deemed related thereto . . . .” Cf., People v. Clark (1990) 50 Cal.3d 583, 629, where the court first said there was no error, then said any possible error was harmless, in the admission of victim impact testimony by a victim of defendant who was raped on the same occasion defendant inflicted the fatal wounds on the decedent.) In this regards, counsel may refer to People v. Boyde (1988) 46 Cal.3d 212, 249, in which the court held that it was improper to receive “testimony by victims of other offenses about the impact that the event had on their lives.” Unfortunately, however, Boyde was decided before Booth v. Maryland, supra, 482 U.S. 496 [96 L.Ed.2d 440, 107 S.Ct. 2529] was overruled in Payne v. Tennessee, supra, 501 U.S. 808 [115 L.Ed.2d 720, 726, 739-740, 111 S.Ct. 2597] and the California Supreme Court decided People v. Edwards, supra, 54 Cal.3d 787. Thus, reliance on Boyde requires distinguishing Edwards.
The Benchguide‘s citation to People v. Garceau (1993) 6 Cal.4th 140, 201-202, is inapposite because it was mere dicta, in a situation where the court upheld the testimony of a victim of a prior kidnap under factor (b) against objections that such testimony was impermissible victim-impact evidence. The opinion does not describe the testimony, other than it demonstrated defendant’s prior commission of a kidnap, or explain how the testimony could even be characterized as “victim-impact” evidence; instead, the decision merely holds that, under factor (b), “[t]he prosecution was entitled to present testimonial evidence of defendant’s violent ‘criminal activity.'” Likewise, the citation to People v. Mickle (1991) 54 Cal.3d 140, 187-188, refers to dicta and is not persuasive. The Mickle court held that there was no reversible error in admitting testimony concerning how defendant’s prior sexual assaults had “affected” the victims of those assaults because defendant failed to object at trial; the “foreseeable effects” of sexual conduct with “children”–that is, “ongoing pain, depression, and fear”–were “admissible as circumstances of the prior crimes” because they were inevitable results of sexual conduct with children; and the “affects” portion of these victims’ “testimony was insignificant in light of extensive properly admitted evidence concerning the despicable nature of both the prior and current crimes.” (Beware, also, of People v. Jackson (1996) 13 Cal.4th 1164, 1191, where the victim of defendant’s rape in Oregon three years after the capital offense testified about “the emotional impact that the incident has continued to have on her life.” Note that the opinion does not discuss any issue concerning the proper admissibility of such victim impact testimony, leading one to infer that there may not have been any specific objection to such testimony on that basis.) Thus, if faced with a prosecutor who attempts to mislead the court by claiming that Garceau, Mickle, or Jackson supports the admission of such victim impact evidence, counsel should cite the elementary rule that “‘an opinion is not authority for a proposition not therein considered.'” (People v. Donaldson (1995) 36 Cal.App.4th 532, 528, quoting from Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2.)
Moreover, there are several decisions from the highest courts of sister states that have explicitly held that victim impact evidence must be limited to evidence concerning the impact of the capital murder for which defendant is currently being prosecuted, and is not permissible concerning any other violent criminal activity, including other murder convictions. For example, in People v. Hope, supra, (Ill. 1998) 702 N.E.2d 1282, the Illinois Supreme Court held “that Payne [v. Tennessee, supra, 501 U.S. 808], clearly contemplates that victim impact evidence will come only from a survivor of the murder for which the defendant is presently on trial, no from survivors of offenses collateral to the crime for which defendant is being tried.” Thus, “evidence about victims of other, unrelated offenses is irrelevant and therefore inadmissible.” As a result, the Hope court reversed defendant’s death sentence because of the erroneous admission of victim impact evidence concerning defendant’s previous murder conviction.
The Nevada Supreme Court reached the same conclusion in Sherman v. State (Nev. 1998) 965 P.2d 903, 914, holding “that the impact of a prior murder is not relevant . . . and is therefore inadmissible during the penalty phase.” The Court explained that “evidence of the impact which a previous murder had upon the previous victim is not relevant to show” the damage done by the current capital offense. (Ibid.) Similarly, in State v. Nesbit, supra, (Tenn. 1998) 978 S.W.2d 872, the Tennessee Supreme Court “reiterate[d] that victim impact evidence of another homicide, even one committed by the defendant on trial, is not admissible.” (Nesbit, supra, at fn. 11, citing State v. Bigbee (Tenn. 1994) 885 S.W.2d 797, 813.)
Preparing for Victim Impact Witnesses
Long before trial, defendant must obtain discovery of all witnesses the prosecution is likely to present at penalty phase, including victim impact witnesses, together with all reports of any statements by such witnesses and all real evidence. (Penal Code section 1054.1, which applies to the penalty phase portion of trial under People v. Superior Court (Mitchell) (1993) 5 Cal.4th 1229, 1231.) Any notes taken by a prosecuting attorney, inspector, investigator or law enforcement officer which describe the statement of the witness must be disclosed to defendant. (Thompson v. Superior Court (1997) 53 Cal.App.4th 480, 483, 488.) Any photographs, tape recordings, videos, writings, letters, poetry, drawings, or the like must be disclosed because they constitute real evidence. Further, the prosecution must disclose all “relevant real evidence seized or obtained” regardless of whether it intends to offer such evidence at trial. (Penal Code section 1054.1(c).) In addition, the prosecution must disclose the criminal history of its victim impact witnesses under Penal Code section 1054.1(d) and Brady v. Maryland (1963) 373 U.S. 83, 87 [83 S.Ct. 1194, 1196-1197, 10 L.Ed.2d 215] and its progeny. Finally, under Brady and its progeny, defendant is entitled to discovery of any evidence which defendant might favorably use to rebut victim impact evidence, especially given the explicit acknowledgment by the United States Supreme Court in Payne v. Tennessee, supra, 501 U.S. 808, 823 [115 L.Ed.2d 720, 111 S.Ct. 2597, 2607], that victim impact witnesses are subject to cross-examination and the presentation of contrary evidence by defendant. Thus, it is appropriate to seek discovery of life insurance proceeds, inheritance or other financial gain obtained by the victim impact witnesses; the decedent’s criminal history; or any other conduct by the victim which arguably demonstrated a lack of concern for her or his family, including affairs, alcohol or substance abuse, infrequent contact with family members, domestic violence, etc. (See, for example, Katy C. O’Donnell’s Motion for Disclosure of Exculpatory Evidence Pertaining to Victim Impact Evidence and accompanying memorandum included in the 1999 Capital Case Defense Seminar Syllabus, pp. 325-331.)
Defendant 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. For example, the civil register should be checked concerning the possibility of litigation having been filed involving the victim(s) and the victim impact witnesses, such as lawsuits, divorce proceedings, or probate actions concerning the decedent’s estate. Ideally, victim impact witnesses should be interviewed. The defense should also interview other members of the victim’s family and neighbors of the victim and victim impact witnesses. Investigation should also be conducted concerning the victim’s employment. Where victim impact witnesses have obtained counseling or therapy as a result of the homicide, defendant should seek the relevant records from the counselor or therapist by issuance of a subpoena duces tecum.
In conducting such investigation, however, defense counsel is well advised to be sensitive to the suffering of the decedent’s family and be as discreet as possible. Indeed, some counsel might elect to forego certain aspects of the investigation if counsel concludes that it could not be accomplished without angering potential victim impact witnesses who might make defendant pay for such investigation at trial. Thus, as much of the investigation as possible should be conducted through record searches.
Excluding Inadmissible Victim Impact Evidence
Before penalty phase begins, counsel should seek an in limine hearing concerning the admissibility and scope of the specific victim impact evidence to be presented. Given the legitimate concerns over the potentially emotional, unduly prejudicial, and excessive nature of victim impact testimony, a trial court would be well advised to make sure that months of trial are not wasted by inflammatory testimony being presented before the jury. These concerns have been articulated by both the United States Supreme Court in Payne, supra, 501 U.S. 808, 825, 831 (conc. opn. O’Connor, J.), 836 (conc. opn. Souter, J.) [115 L.Ed.2d 720, 111 S.Ct. 2597, 2608, 2612, 2614] and the California Supreme Court in Edwards, supra, 54 Cal.3d 787, 836 (“‘irrelevant information or inflammatory rhetoric that diverts the jury’s attention from its proper role or invites an irrational, purely subjective response should be curtailed'”). Indeed, in New Jersey v. Muhammad, supra, 145 N.J. 23, 54 [678 A.2d 164, 180], the New Jersey Supreme Court expressly held that a trial court should ordinarily conduct an in limine hearing in order to determine the admissibility of victim impact evidence, and require a written description of the testimony of each victim impact witness in order to facilitate such determination. Similarly, in State v. Nesbit, supra, 978 S.W.2d 872, the Tennessee Supreme Court held: “To enable the trial court to adequately supervise the admission of victim impact proof, we conclude that the State must notify the trial court of its intent to produce victim impact evidence. Upon receiving notification, the trial court must hold a hearing outside the presence of the jury to determine the admissibility of the evidence.”
An excellent source of motions combating the admissibility of victim impact evidence on a variety of grounds have consistently been produced by Assistant Public Defender Katy C. O’Donnell of the Capital Defense Division of the Maryland Bar Center, and her motions are included in the 1999 Capital Case Defense Seminar Syllabus from pages 268-354.
In addition to the constitutional objections to the type and scope of victim impact evidence, counsel should also utilize the ordinary objections available in any trial, such as hearsay, improper character evidence, relevancy, and Evidence Code section 352. These objections are particularly apt in regards to videotapes, letters and poems concerning the decedent.
Tactical Considerations Before the Jury:
There are many different tactical considerations which may affect the scope of cross-examination of a victim impact witness, or the decision whether to ask any questions at all on cross-examination. There are several potentially useful areas of cross-examination which may or may not exist in a given case. For example, where defendant has suffered a harsh childhood, abuse, poverty or some other hardship which is demonstrated by the evidence, it may be helpful to elicit from victim impact witnesses evidence which illustrates that the victim or the witness has never suffered any similar hardship. Such evidence might illustrate that a person’s environment really does impact his or her development and thereby underscore the significance of the defense mitigation. Where a victim impact witness has testified to some aspect of the conduct involved in the commission of the capital offense, the witness may be cross-examined about mistakes or exaggerations in his or her description of the events. A witness may describe how much he or she misses the decedent, but the truth may be that the witness only visited the decedent once a year. A family member may describe needing therapy, but the therapist’s records might reveal that all treatment or counseling over the victim’s death has concluded, or that the witness is now being counseled only for an emotional problem that existed before the capital offense. Thorough investigation and discovery may develop other fertile areas for cross-examination and rebuttal.
Defense counsel should also consider whether, during the guilt phase of the case, it may be possible to present testimony revealing conduct of the decedent which, to say the least, the jury may find unappealing. For example, although defendant may not have acted in self-defense, the decedent’s character for violence and aggression may be relevant to try to demonstrate that defendant was provoked to kill the decedent, negating the element of premeditation. While the jury may conclude that defendant was guilty of first degree murder nevertheless, the jury will have heard damaging character evidence about the decedent, during a portion of the case which is not laced with the moral and emotional considerations that are omnipresent at penalty phase. In addition, background photographs of the crime scene may reveal unfavorable characteristics of the decedent. Although it would be counterproductive to present such evidence at penalty phase, where the prosecution would surely accuse the defense of character assassination, simply introducing such evidence during the guilt phase may help counter the prosecution’s inevitable attempt to portray the decedent as a near-perfect human being.
On the other hand, there will certainly be situations where nothing positive can be gained from cross-examination, and these situations will occur more often with victim impact witnesses than with any other type of witness. Trust your instincts and your humanity, after obtaining the knowledge necessary to make an intelligent tactical decision.
Finally, note that, although the prosecution is not permitted to elicit testimony from victim-impact witnesses that they want defendant executed for the killing of their loved one (Booth v. Maryland, supra, 482 U.S. 496, 503; Payne v. Tennessee, supra, 501 U.S. 808, 833 (conc. opn., O’Connor, White, and Kennedy, JJ.)), “defendant may offer evidence that he or she is loved by family members or others, and that these individuals want him or her to live . . . . because it constitutes indirect evidence of the defendant’s character.” (People v. Ochoa (1998) 19 Cal.4th 353, 456.) Thus, where the prosecution’s victim-impact witness is a family member of defendant or otherwise has a relationship with defendant, and that witness does not want defendant to be sentenced to death, then defendant must be allowed to present such testimony.
Due to the inherent tendency of jurors to have strong emotional reactions to victim impact testimony, defense counsel should tender jury instructions which advise the jury of the limited purpose of victim impact evidence. For example, in State v. Nesbit, supra, (Tenn. 1998) 978 S.W.2d 872, the Tennessee Supreme Court held that trial courts should instruct capital jurors that:
“The prosecution has introduced what is known as victim impact evidence. This evidence has been introduced to show the financial, emotional, psychological, or physical effects of the victim’s death on the members of the victim’s immediate family. You may consider this evidence in determining an appropriate punishment. However, your consideration must be limited to a rational inquiry into the culpability of the defendant, not an emotional response to the evidence.
“Victim impact evidence is not the same as an aggravating circumstance. Proof of an adverse impact on the victim’s family is not proof of an aggravating circumstance. . . . .” (The balance of the instruction is omitted because it addresses matters which are not relevant under California law, such as the burden of proof and necessity of finding at least one aggravating circumstance under Tennessee law.)
Of course, in a particular case, there may be no evidence of such matters as financial, psychological or physical effects of the decedent’s death; in those cases, defense counsel should not call attention to matters which are not in the evidence, and should object to any attempt to instruct the jury on these speculative effects.
If at all possible, it is important to provide the jury with instructions that limit the significance of victim impact evidence. Moreover, given the powerful nature of victim impact testimony, such jury instruction should be required under the independent state and federal constitutional guarantees to due process of law (Article I, sections 15 and 24, of the California Constitution; Fifth and Fourteenth Amendments to the United States Constitution), and the constitutional requirement of a reliable death penalty determination (Fifth, Eighth and Fourteenth Amendments to the United States Constitution). Indeed, the Supreme Courts of New Jersey and Tennessee have expressly required that a penalty jury must receive limiting instructions concerning victim impact evidence (New Jersey v. Muhammad, supra, (N.J. 1996) 145 N.J. 23, [678 A.2d 164]; State v. Nesbit, supra, (Tenn. 1998) 978 S.W.2d 872.) The Tennessee Supreme Court decision in Nesbit, supra, is particularly instructive because under Tennessee law, just as under California law, the sole and exclusive rationale for the admissibility of victim impact evidence is that it is part of the “nature and circumstances” of the capital crime.
Thus, California practitioners should seek limiting instructions, for example, pointing out that victim impact evidence is not a factor in aggravation but can only be considered, if at all, as part of the circumstances of the crime; that jurors must exercise great care not to attach any emotional response to victim impact evidence (State v. Nesbit, supra, (Tenn. 1998) 978 S.W.2d 872); and that the jury cannot consider any victim impact evidence other than “personal characteristics of the victim that were known to the defendant at the time of the crime” (People v. Fierro, supra, 1 Cal.4th 173, 260 (conc. and dis. opn. Kennard, J.); in South Carolina v. Gathers, supra, 490 U.S. 805, 811-812 [104 L.Ed.2d 876, 883]. See State v. Nesbit, supra, (Tenn. 1998) 978 S.W.2d 872.) The author suggests proposing the following instruction concerning victim impact evidence (note that the quotations are from the cases cited in the immediately preceding paragraphs, referred to simply by their name; however, the quotation marks, brackets and citations should be deleted in the formal written instruction submitted to the court; instead, they should be cited in the points and authorities in support of the proposed instruction):
“The prosecution has introduced what is known as victim impact evidence.” (Nesbit.) “Victim impact evidence is not the same as an aggravating circumstance. Proof of an adverse impact on the victim’s family is not proof of an aggravating circumstance.” (Nesbit.) Rather, victim impact evidence may be considered, if at all, only to the extent you find it is part of the circumstances of the special circumstances murder conviction for which you are now determining whether to sentence defendant to death or life imprisonment without the possibility of parole. In assessing to what extent, if any, you should consider the victim impact evidence in your deliberations, you may not consider any victim impact evidence unless it was foreseeably related to “personal characteristics of the victim that were [actually] known to the defendant at the time of the crime.” (Fierro; Gathers.) “Your consideration of the victim impact evidence must be limited to a rational inquiry into the culpability of the defendant, not an emotional response to the evidence.” (Nesbit.)