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death penalty, evidence, due process, empirical analysis, criminal law


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 the 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, were 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.

Publication Citation

40 Hastings Constitutional Law Quarterly 611 (2013).


Civil Rights and Discrimination | Criminal Law | Evidence