Legal Issues: States That Allow Victim Impact Statements

Note: The Federal Government and the U.S. Military also allow the use of Victim Impact Statements.

(Source: John H. Blume, "Ten Years of Payne: Victim Impact Evidence in Capital Cases," 88 Cornell Law Review 257, 268 (2003)).

* On April 14, 2003, the Wyoming Supreme Court held that victim impact evidence is not admissible at the sentencing phase of capital trials in that state. The court stated that it is up to the legislature to decide whether the sentencer may consider victim impact evidence, and Wyoming's legislature has not yet authorized the admission of such evidence. (Olsen v. State, Wyo., No. 98-62).

**New Mexico has abolished the death penalty for crimes committed after the effective date of the law in 2009.

KELLY V. CALIFORNIA, No. 07-11073, U.S. Supreme Court

Review denied with 3 Justices expressing concerns about victim impact statements

Some of the Justices sent a signal they may want to restrict prosecutors' use of victim impact statements in death sentencing hearings.  In Booth v. Maryland (1987), the Court initially found such testimony to be unconstitutional because of the danger the jury could be overwhelmed by emotional statements from victims' family members about their suffering and loss. That decision was reversed a few years later in Payne v. Tennessee.  This year, in Kelly v. California, the Court was asked to limit the extent of such victim statements.  Three Justices indicated the Court should consider the issue.  Justice Breyer dissented from the denial of certiorari and wrote separately.  Justice Souter would have granted cert.  Justice Stevens respected the denial of cert., but wrote separately  of his concerns. (Four Justices are needed to grant review.) Stevens wrote:

"In the years since Payne was decided, this Court has left state and federal courts unguided in their efforts to police the hazy boundaries between permissible victim impact evidence and its impermissible, ‘unduly prejudicial’ forms…. Having decided to tolerate the introduction of evidence that puts a heavy thumb on the prosecutor’s side of the scale in death cases, the Court has a duty to consider what reasonable limits should be placed on its use."

(Stevens, J., statement respecting denial of cert. Nov. 10, 2008). See U.S. Supreme Court's order.

Return to Victims and the Death Penalty.