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Victim Impact Testimony

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softwareNerd

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Is there is a legitimate basis for "Victim Impact Testimony"?

From what I understand, this type of testimony only comes into play in the sentencing phase. Suppose two criminals commit a similar crime. One victim is able to recover and get on with his life while the victim of the second crime suffers extreme emotional stresss, has to go through years of psycho-therapy, and so on. I cannot see why the first criminal should get off any lighter just because his victim did not do as badly. Wouldn't that be like sentencing a thief not just on the basis of the amount of monmey stolen, but also on the basis of the wealth of the victim?

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Folks (including myself, as I know little of this particular area) might find it helpful to read Booth v. Maryland, which held that introducing a victim impact statement at the sentencing stage of a capital murder violated the Eighth Amendment, and Payne v. Tennessee, which overruled Booth and held that the Eighth Amendment did not per se bar the use of such evidence.

Does sentencing sometimes include compensation to the victim -- either by the criminal (good) or by the state from tax money (bad)?

Yes. Consider Nebraska Rev. Stat. 29-2280:

A sentencing court may order the defendant to make restitution for the actual physical injury or property damage or loss sustained by the victim as a direct result of the offense for which the defendant has been convicted. With the consent of the parties, the court may order restitution for the actual physical injury or property damage or loss sustained by the victim of an uncharged offense or an offense dismissed pursuant to plea negotiations. Whenever the court believes that restitution may be a proper sentence or the victim of any offense or the prosecuting attorney requests, the court shall order that the presentence investigation report include documentation regarding the nature and amount of the actual damages sustained by the victim.

There are a few other restitution statutes in Nebraska, but this is the basic one giving the court authority to award restitution. One interesting thing to note is that it says "may." Whether restitution is permissive or mandatory varies by state.

[Edit: spelling error.]

Edited by Groovenstein
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It may be helpful to develop a useful definition for what we mean by "victim impact testimony." The following phrases from Payne suggest a starting point:

"evidence relating to the personal characteristics of the victim and the emotional impact of the crimes on the victim's family"

"described the personal characteristics of the victims, the emotional impact of the crimes on the family, and set forth the family members' opinions and characterizations of the crimes and the defendant"

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Suppose two criminals commit a similar crime. One victim is able to recover and get on with his life while the victim of the second crime suffers extreme emotional stresss, has to go through years of psycho-therapy, and so on. I cannot see why the first criminal should get off any lighter just because his victim did not do as badly.

I have another question about criminal law. Isn't criminal law, as a whole, already structured in gradations based on the effect -- or even only potential effect -- of a crime on a victim? For example, isn't the penalty more severe for assault and battery than for assault? (I am not a lawyer, so I may be using the wrong terms.) Another example is the penalty for armed robbery being more severe than the penalty for theft, if my memory of news accounts is correct.

If I steal your wallet from your negligently unlocked locker at the local gym while you are lifting weights, should the penalty be the same as it is if I press a pistol against your head while robbing you of your wallet while you are walking home from work?

In summary, isn't it the impact -- or even potential impact -- on the victim that drives different levels of penalty under the law?

P. S. -- Thank you, Matthew.

Edited by BurgessLau
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Isn't criminal law, as a whole, already structured in gradations based on the effect -- or even only potential effect -- of a crime on a victim?
Gradation is definitely called for. However, gradation isn't unique to criminal penalties. If I hit someone's car by mistake, I pay more if I do more damage. The question is: what is the right basis for such gradation?

Using the car example, take two cases:

1) Person A is not driving particularly recklessly, and he hits a Maserati and damages it.

2) Person B is very drunk, weaving all over the road, and hits someone's mailbox

There appear to be two types of penalties (and therefore two possible scales of gradation):

  • Penalties to compensate the victim: the price of a Maserati-repair vs. the price of a mail-box
  • Penalties imposed because of the act itself: driving recklessly while drunk

In my (admittedly layman's) view, the victim impact gradation (as long as it is objective) belongs more in the area of determining civil liability.

[This is a preliminary post. I intend to read the links -- thanks Matt -- before I post further.]

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It has the merit that it helps to concretize the meaning of the crime, so that the dispensers of justice are squarely faced with the fact that this is not just an abstraction, but actually the taking away of part or all of the life of the victim. It has the demerit of reducing justice to the measurement of expressed outrage, so that if you don't express enough outrage, you must not have been harmed. Given the predominant tendencies towards subjectivism and emotionalism in the legal system, I think victim impact statements are a bad idea. We do not really need emotional testimony to establish that murder is evil and should be punished -- that much should be presumed. To the extent that judges get jaded by seeing so much crime, maybe the solution is to eliminate victimless crimes, which I imagine cause cognitive dissonance in judges, who are faced with the paradox of upholding the law or dispensing justice.

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Unfortunately, I don't extract anything general from Payne or Booth. It is interesting how stare decisis bites the dust here, but I think the main problem with extrapolating from these cases is that they are death penalty cases, which have these "additional mile" requirements tied up with them in the form of considering aggrevating and mitigating circumstances. The point made in Booth about the difficulty of rebutting representations of impact is a good one and that decisions about punishment should be "based on reason rather than caprice or emotion". But it is equally correct that the defense is allowed to offer virtually anything in the form of a mitigating circumstance, and the prosecution has very limited means to make an argument for execution (since the fact of having actually murdered a person does not per se trigger the death penalty). Because of the strangeness of death penalty law and the nature of the death penalty itself, we shouldn't extrapolate from these decisions to the use of such statements in a rape or fraud case.

BTW Scalia embarasses himself very clearly in Booth by revealing the true nature of his ethics: "If a bank robber aims his gun at a guard, pulls the trigger, and kills his target, he may be put to death. If the gun unexpectedly misfires, he may not. His moral guilt in both cases is identical, but his responsibility in the former is greater". It's funny how he got that exactly backwards. One wonders if that was a typo.

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Unfortunately, I don't extract anything general from Payne or Booth. It is interesting how stare decisis bites the dust here, but I think the main problem with extrapolating from these cases is that they are death penalty cases, which have these "additional mile" requirements tied up with them in the form of considering aggrevating and mitigating circumstances.

I'm sorry you didn't get much out of them. I'm still learning how the sentencing phase of criminal proceedings works (which is part of what attracts me to this public defender position), so this area is still new to me. I'll probably suggest things that aren't helpful from time to time.

I've learned that Neb. Rev. Stat. 29-2261 generally requires a presentence investigation for felonies, and permits one for any case down to a Class II misdemeanor. I thnk the Maryland statute in Booth had them for felonies. So let's give ourselves a context here. Generally speaking, perhaps we should assume that victim impact statements are only going to come into play for major offenses, i.e. felonies and serious misdemeanors.

Would you find it more useful to read a case where the death penalty is not at issue? I'll see if I can find one. (Btw, it takes me longer to find stuff for you guys than it does for school or work because school and work provide me with online Westlaw access, but I am not permitted to use it for personal use.)

Also, I think we really should define and distinguish between victim impact statements and restitution. What I've read so far suggests that victim impact = emotional impact, whereas restitution = compensation for financial injury. Which are we talking about here? softwareNerd's first post suggests emotional impact.

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I'm sorry you didn't get much out of them.
Okay, I meant "much that is generally applicable to the question of whether victim impact statements are proper evidence in the sentencing phase". Also, it's their fault, not yours. I don't think that the arguments used on either side from capital cases would be usable for non-capital cases. If you know of a non-capital cases where the issue of the vaildity of a victim impact statement is important on appeal, that would be helpful (but, like, don't distract yourself from what you need to be doing...). The issue is, do or should courts use the level of evident emotional distress of the victim and a factor in deciding between 30 years or 35 years for a crime? I can't really see emotional evidence has a place in an objective justice system, which is why I'm looking to see the arguments that it does.
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I can't really see emotional evidence has a place in an objective justice system, which is why I'm looking to see the arguments that it does.

How about where it goes to prove an element of the crime, rather than as part of sentencing? I don't know, but I found some discussion about that in Thomas v. Wyo. The discussion of victim impact testimony goes from pp. 10-13 of the PDF. This case is in the context of an aggravated A&B. Testimony by a victim of his pain and problems after being stabbed as going to prove "serious bodily injury"? Hmm.

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How about where it goes to prove an element of the crime, rather than as part of sentencing?
And a bunch of references worth tracing back, to boot. That is clearly a type of case where such a statement is necessary, as long as it's limited to the nature of the attack, in order to establish that the particular crime was committed. The portions of the testimony were clearly germane to the question of whether serious battery had taken place, and clearly that type of testimony must be allowed.

Good find -- thanks.

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  • 2 months later...

Okay, I did about five minutes of digging, and found Fed. R. Crim. P. 32, which governs presentence investigations. Perhaps some legislative history searches and what have you can yield some helpful statements pertaining to this Rule or other statutes relating to victim impact stuff. Here's the first one that comes up on Google.

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