I have written several posts on this blog about the ever controversial topic of victim impact statements (previous posts can be found here
, and here
). Those posts have dealt with topics such as the type of music that can accompany such statements, whether such statements can invoke religious authority, whether such statements are admissible in cases of defendants found not guilty by reason of insanity, and whether the admission of such statements should be mandatory (in Ireland). This post deals with the near converse of the proposed Irish rule: whether such statements should be per se
prohibited in cases that could result in the death penalty or life without the possibility of parole being imposed. As a recent article makes clear, that is (in essence) currently the law in Indiana.
According to that article, Desmond Turner was convicted to life without parole plus 88 years after being convicted of killing three children and four adults during a home-invasion robbery at Hamilton Avenue
. The article also notes that the prosecutor was able to procure this sentence after getting Turner to waive his right to a jury trial, leaving the determination of guilt and the imposition of sentence to Superior Court Judge Robert Altice
. Victim impact statements, however, played no role in sentencing. The article contended that
Ironically, the heart-wrenching statements from the survivors of the Hamilton Avenue victims played no role in the sentencing of the convicted man. Indiana law doesn't allow judges to consider victim impact statements in cases that could bring the death penalty or life in prison without parole.
The article goes on to note that "Indiana is one of a few states still limiting the use of victim impact statements in death penalty cases. Victims are allowed to address the court, but their statements technically play no role in the sentencing." The article is mostly accurate. As John Blume noted in Ten Years of Payne: Victim Impact Evidence in Capital Cases, 88 Cornell L. Rev. 257, 268-69 (2003), Indiana and Mississippi are the only two states that appear to significantly restrict the admission of VIE. Although neither jurisdiction finds VIE per se inadmissible, both states claim to utilize a higher standard of relevance. Indiana, for example, prohibits VIE unless it is relevant to one of the statutory aggravating factors. The Indiana Supreme Court has never upheld a trial court's admission of VIE. However, when confronted with a case in which VIE was erroneously admitted, the court has often found the error harmless.
Mississippi requires that VIE be "proper and necessary to a development of the case” and further requires the prosecution to demonstrate that the evidence "could not serve in any way to incite the jury." Mississippi was one of the few states that initially hesitated to adopt Payne's holding, stating that "Payne...is properly phrased in terms of the constitutionally permissible, not the mandatory, and in prudence, we should await another day to explore the full reach of our rediscovered freedom." However, the state court later held that a prosecutor's statement that "injustice would be hard to bear by the family and friends of the victim" had some probative value and then opined that, taking the trial as a whole, the comments were not overly prejudicial. Thus, although Mississippi technically considers VIE inadmissible, it does not bar all VIE or argument, and trial courts appear to have discretion to determine whether, under the circumstances of the case, the prosecution may introduce VIE.
As the above excerpt indicates, Indiana does in fact limit the use of victim impact statements in death penalty cases and has, in practice, imposed a sort of constructive ban on their admission. But, technically, Indiana does not have an official per se ban on the admission of victim impact statements in cases where the death penalty or life without parole could be imposed. Instead, as the Supreme Court of Indiana noted in Veal v. State, 784 N.E.2d 490, 493 (Ind. 2003), "victim impact evidence is admissible under the death penalty statute [but] only where it is 'relevant to the death penalty statute's aggravating and mitigating circumstances.'...Cases in which life without parole is sought are governed by the same [standard]."
Personally, I like the Indiana approach. It (technically) allows victim impact evidence when the prosecution can establish that it is relevant to the sentencing decision but excludes it when it is merely presented to inflame the passions of the jury or judge. It would be interesting to see whether there is any empirical evidence out there about whether there is disparate sentencing in Indiana and Mississippi compared to the other states that might be attributed to victim impact evidence.