Saturday, February 06, 2010

New Article: Character and Victim Impact Evidence

I just noticed this abstract (Dec. 1, 2009) of Younglove, Nelligan & Reisner, "Victim Character Evidence in Death Penalty Cases, How Many Songs Is Too Many?," 34 Criminal Justice Review 536 (2009):
The U.S. Supreme Court’s Payne decision opening the door to victim impact testimony in capital cases generally, and to victim character evidence particularly, has been controversial. The issue is whether a murder victim’s character is relevant to the moral blameworthiness of the defendant. Several mock jury simulation studies have shown that such evidence does influence jury decisions imposing the death penalty. The current study took a different direction and examined the nature and extent of actual victim character testimony in samples of death penalty cases in three states. Data were derived from 14 transcripts of the penalty phase of trials in each of three states: California, New Jersey, and Texas, states with different political and legal climates. Content analysis revealed that there were numerous references to victims’ character in the form of positive personality traits, in addition to descriptions of the impact the crime had on the victims’ families and friends. Qualitative analysis revealed that many witnesses were allowed to use photos, videotapes, and other personal items to portray the victim’s life. What emerges from this inside view of practices in courtrooms is disturbing in that the evidence allowed seems to exceed Payne’s already meager limitations.
Spindle Law's discussion of character evidence and of relevance and materiality needs to have a discussion of the treatment of victim impact statements and evidence. Why don't you add something there, dear Reader? (Perhaps consideration should be given to the later Supreme Court decision Old Chief v. United States, 519 U.S. 172 (1997).)

Justice Stevens, dissenting in Payne v. Tennessee, 501 U.S. 808 (1991), mentioned my 1983 revision of volume one of the Wigmore treatise. Id. (citing 1 J. Wigmore, Evidence § 13 (P. Tillers rev. 1983)).

One interesting aspect of Old Chief is the way it attenuates or changes -- pick your poison -- the concepts of relevance and materiality, which have been said to be central to the American system of factual proof in trials.

Only in recent years has sustained attention been given to the possibility that emotion can facilitate as well as damage accurate inference. See, e.g., Reid Hastie, "Emotions in jurors’ decisions," 66 Brooklyn Law Review 991 (2001).

I lean to the view that "personality" is a predictor of behavior but that much evidence of personality that is admitted in trials is (a) too coarse to have much predictive value and (b) subject to too much abuse by the adversary process to have much predictive value. (But my generalizations are only generalizations and are themselves too coarse to be of much value for the analysis of -- or guesswork about -- specific character evidence problems.)

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

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