Two years later, Justice O’Connor wrote in her concurring opinion in Payne v. Tennessee (1991), that “a quick glimpse of the life” taken by the petitioner may be encapsulated before the jury in a victim impact statement, overruling Booth’s total ban on such testimony. Despite the Court’s very narrow ruling, prosecutors used Payne to operate as though Booth had been obliterated. Victim impact statements expanded in scope to include idyllic video biographies of the victim; family members’ condemnation of the defendant’s character and calls for the death penalty; and survivors’ claims that their loss had caused egregious harm to physical, mental, and economic wellbeing. In fact, Payne’s ruling allowed victim impact evidence to “show the jury that a human being was killed … that a real life was taken,” explains Michael Ogul, deputy public defender in California’s Santa Clara County. “Nothing more.”

Bosse v. Oklahoma, decided just one year ago in October 2016, sought to reconstruct the majority of Booth’s barring of victim testimony, limiting it to the “quick glimpse” afforded by Payne. Yet the very admission of victim impact statements is lethal to clients, says Ogul. To lessen their effect, Ogul presented last month what can be summarized as a three-pronged strategy, mounted against judge, witnesses, and jury. 

  1. The defense must aggressively target the judge with motions to exclude any and all victim impact evidence beyond the scope of Payne.
  2. The defense must try to elicit evidence from witnesses that reduces the perceived “blameworthiness” of the defendant.
  3. The jury must be prepared at voir dire and through jury instructions as to specific purpose of victim impact statements

A critical advantage is gained through discovery of victim impact witnesses and the statements they plan to offer in court; defense lawyers should use this discovery to file motions prohibiting witnesses from speculating, for example, that another family member suffered a heart attack or continued bad health as a result from the victim’s death. Other motions Ogul recommends to prevent undue prejudice are those to exclude photos or footage of an adult victim as a child (the defendant did not “snuff out the hopes and dreams of a child”); to limit the number of victim impact witnesses; and to require witness testimony to be on videotape, rather than the inevitably more emotionally impactful presentation by the witness in court.

While continuing to show empathy and compassion for surviving family members is crucial, Ogul emphasizes it is nevertheless the responsibility of the defense to take advantage of cross-examination. Defense teams benefit from conducting investigations into the victim’s life to uncover less-than-appealing facts from witnesses such as restraining orders or love affairs, divorce filings or DUI arrests. “We need to get that out there,” says Ogul, “whether through delicate cross or subtle direct.”

Witnesses may also be used to highlight hardships common to both victim and defendant that may inspire compassion for the latter. Ogul recalls a colleague drawing out a victim’s brother on how the victim suffered from the effects of alcoholism, a disease that affected the defendant as well. In the event it is possible to elicit testimony on a victim’s commitment to social justice issues, or “life-giving qualities” to indicate opposition to the death penalty, the defense should pursue this opportunity. Additionally, while a victim impact witness may never, according to Booth, say they want the death penalty, family members – for example, in cases of intra-family homicide – may well want to testify they want the defendant to live. 

How victim impact evidence impacts the jurors is not beyond the control of the defense. The key, says Ogul, lies in preparing them well in advance – “we need to desensitize jurors to the emotional power of victim impact evidence” – starting in voir dire. Here, Ogul offers several questions, including mock scenarios, to ensure the selected jurors will not see themselves as representatives of the victim. Jury instructions must include a clear explanation of what a victim impact statement comprises and to what purpose it is limited; Ogul recommends asking each juror for a commitment to “be fair” and to remind jurors of this commitment in closing statements. Preparing the jurors also includes summarizing a family member’s testimony before it is presented in court – which makes obtaining such testimony through discovery motions so vital.

In Ogul’s “perfect world,” victim impact witnesses would make their statements not before the jury, but after the trial – once the jury has delivered its verdict. In addition to removing the risk of a decision that violates the Eighth Amendment, this option would benefit survivors – many of whom, Ogul claims, would prefer to speak openly without being exposed to cross-examination. “We need to give the victims what they need,” he urges, “without trampling our clients’ rights.”

  • View the whole Webinar, “Don't Let Victim Impact Evidence Be Fatal to Your Client,” from the NAPD Webinar Archive with your NAPD subscription.
  • For further resources on defending capital cases, see the "Keeping It Fair” category in MyGideon (member subscription required).