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45 Stan. L. Rev. 1027 (1992-1993)
Limiting Victim Impact Evidence and Argument after Payne v. Tennessee

handle is hein.journals/stflr45 and id is 1045 raw text is: NOTES Limiting Victim Impact Evidence and Argument After Payne v. Tennessee Jonathan H. Levy* I. INTRODUCTION In Payne v. Tennessee,1 the United States Supreme Court held that the Eighth Amendment does not bar the admission of victim impact evidence2 in the sentencing phase of a capital trial. Payne had been convicted of the extremely brutal and bloody stabbing murders of a mother and her two-year- old daughter.3 At the jury hearing conducted to determine whether Payne would be sentenced to death or life imprisonment, the prosecutor presented testimony by the two-year-old's grandmother about the effect of the crimes on the surviving three-year-old, whom Payne had also stabbed. She testified that the boy missed and cried for his murdered sister and mother.4 In his closing argument, the prosecutor discussed the effects of the crime in graphic and emotional terms, pointing out that the daughter would never go to her prom, that the mother would never again kiss her son good night or sing him a lullaby, and that the two victims were loved and mourned.5 * Third-year student, Stanford Law School. B.A., Yale University. I would like to thank Susan Beck, Gerald Miller, and Dan Siegel for insightful comments on earlier drafts. James Beck and Leticia Dominguez as well as Professors Linda Krieger, Kim Taylor, and Robert Weisberg kindly shared their expertise and ideas. My editors at the Stanford Law Review were exceptionally thorough and astute in providing numerous improvements to my initial draft. Finally, I owe a debt of gratitude to Professor Barbara Babcock who suggested the topic for this note and provided the guidance and inspiration necessary for its completion. 1. 111 S. Ct. 2597 (1991). 2. In general, victim impact evidence consists of evidence about the effect of a crime on its victims and their relatives. For the purposes of this paper, however, I will define victim impact evidence more specifically as information on the crime's effects on the victim and society, including aspects of the victim's character or societal worth but excluding information which would be consid- ered a statutory aggravating factor or which was known to the defendant at the time of the crime. The use of this type of victim impact evidence was forbidden in Booth v. Maryland, 482 U.S. 496, 507 (1987). For a more detailed discussion of the subset of victim impact evidence excluded under Booth, see Steven G. Gey, Justice Scalia's Death Penalty, 20 FLA. ST. U. L. REv. 67, 74-75 & nn.31 & 34 (1992). 3. Payne, Ill S. Ct. at 2601-02. 4. Id. at 2603. 5. Id. The prosecutor also attempted to link the evidence to one of the statutory aggravating factors by claiming that the crime's effects on the victims made the crime itself especially cruel, heinous, and atrocious. Id. (quoting the trial record). 1027

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