Victim Impact Statements as New Type of Evidence


An essential task for the criminal justice system is to grant the rights of the appellant and the victim equally. This is achieved by providing the victim with a limited role that contributes to the realization of fair treatment for both the offender and the victim. In capital trials, juries are now considering victim impact statements as a new type of evidence. Booth v. Maryland, a 1987 case, was the first to examine the constitutionality of this type of evidence. Evidence about the victim and the consequences on their family was found to be inadmissible in this initial assessment. After some time, it became clear to the court that the use of this type of evidence was sufficiently acceptable. Victims can use these statements to express the harm that has been endured and the specific ways in which the crime has impacted them and the families. It also gives them the opportunity to say how they feel about the perpetrator and sentencing. The usage of these emotionally laden remarks has been unnecessarily expanded to all 50 states.

Victim Impact Evidence: Supreme Court Cases

Initially, when adopting certiorari by the Supreme Court in Booth v. Maryland, victim impact statements were allowed in cases where the death penalty was imposed. However, their admissibility for the trial has been questioned, because they violated the doctrine of proportionality of the Eighth Amendment. The majority agreed that information generated from victim impact statements is useless in terms of capital punishment because it opens the door to the arbitrary and capricious application of the death sentence (“John Booth, petitioner”, 1987). In addition, it should be noted that such statements of victims cannot be correlated with the adoption of a court decision since they have little to do with the direct guilt of the defendant.

Then a similar case was recorded in the 1989 case South Carolina v. Gathers. A similar approach was applied, claiming that the use of the victim’s statement is not relevant to the case. This was explained by the fact that information that is unknown to the defendant cannot serve as a motive or cause for the murder (“South Carolina v. Gathers”, 1989). Focusing on parts of the case that the defendant is unaware of, such as a victim’s social position, may divert jurors’ attention away from essential facts, thus damaging the defendant’s credibility. Thus, it can be argued that the Eighth Amendment does not prohibit jurors from taking into account victims’ statements (“Payne v. Tennessee”, 1991). The most recent case on victim impact statements is Payne v. Tennessee, decided four years after Booth.

The ruling that the victim’s statements are also important for the judicial process made it possible to consider the consequences of the crime for a person. This is important in the sense that the harm from the crime should also be taken into account when assigning punishment (“Payne v. Tennessee”, 1991). According to the court, victim impact evidence can indicate not just physical but also psychological and emotional suffering. However, the consideration of victims’ statements should also influence how the defense is presented. As a result, the prosecution should be given the same advantage by presenting their case in the best possible way (Levy, 1992). At the moment, the implementation of this system is a priority task for the court.

The most conspicuous of them is limiting or guiding the jury’s discretion. Another element that is gaining traction is the defendant’s uniqueness as well as the circumstances of the offense. It should be understood that the victim’s statements can also be used as an aggravating circumstance. However, all this leads to a specific problem of the trial that should be considered. It lies in the fact that the trial becomes a focus exclusively on the victim in this way.

The US constitution is designed to safeguard the rights of defendants, not victims. As a result, concentrating only on the sufferer may be unsettling. Furthermore, a defendant’s or defense’s ability to refute the depths of someone’s love for another human being is impossible. Placing this evidence towards the end of trial disadvantages the defense in an imbalanced system that already gives the prosecution two chances to persuade a jury in closing arguments. As evidence, victim impact statements do nothing but agitate the jury and promote arbitrary outcomes.

Moreover, all these facts manifest themselves in the problem of inequality during the trial. This is determined by the fact that the victim is not directly related to the circumstances and nature of the crime. There are certain situations in which victims may not have sufficient skills and capabilities to describe the situation correctly. Accordingly, in order to avoid such cases, a particular pattern should be observed. It consists of excluding the victims’ statements, thereby creating equal conditions for all participants in the trial.

It is worth mentioning that someone who has family members left behind and the articulate family has a better chance of obtaining a death sentence for their loved ones. Despite the fact that their loss experience is the same, justice will be administered differently. The continuous use of victim impact statements will significantly influence the seriousness of comments, and then it will depend on the seriousness of crimes. According to Paul Cassell, a former United States federal judge, the outcome of a family’s grieving facilitation should never be the decisive element in sentencing death (Cassell, 2009). Thus, the judicial process should not take into account the factor that anyone can express their sadness about what happened.

In addition, in such court cases, a specific dilemma can be identified, and it consists in what social position the victim occupied. This leads to the fact that the jury is forced to consider the victim’s social status, which leads to inequality. It lies in the fact that the value of human life is perceived in different ways. An example is the murder of a priest who is respected in a particular community. In this case, based on the victim’s statements, the jury will be forced to impose more severe punishment. However, another criminal in the same situation will receive a lighter punishment only because his victim did not have a high social status. The jury should consider the severity of the crime, not the value of the victim.

Furthermore, when the social worth is greater than the facts of the case, the risk of discriminatory punishment based on race and other variables arises. The prosecution never contends that the death sentence is merited because of race or other discriminatory considerations so that discrimination allegations may go unnoticed. Even more concerning is the fact that prejudice can be disguised in a way that it is never openly labeled even so. It is never judged biased, for example, how educated a victim’s family is. Thus, a discriminatory court decision may be made due to various social factors. Using victim statements in such cases is a dangerous and counterproductive method.


In conclusion, it is evident that the implementation of victim impact evidence is problematic. These remarks bring arbitrariness back into the death penalty debate. Death has been designated as a particular case in the US judicial system, demanding special attention. Booth ruled that victim impact statements have no place in capital processes because they generate arbitrariness. The Court has shifted its position on this issue, now allowing families to participate in the legal system. This change has become so pervasive that the only true aim of these emotionally charged speeches is to provide closure to victims. Rather than assisting the sentencing authority, victim impact comments increase the eventual sentence by forcing detached jurors to become emotionally connected. In due time, the Court will reconsider its decision in Payne and rule in favor of Booth, rendering victim impact evidence unacceptable.

As it was found out in the sequence of this essay, victim statements can lead to various unpleasant consequences. The main problem is the threat of an unequal position of the victim and the perpetrator. In addition, discrimination may occur during the trial. It is due to the fact that the social position of the victims can influence the jury. Thus, for crimes of the same severity, an unequal sentence will be imposed. Consequently, various manipulations concerning the defender become possible. This is not a modern enough way to avoid discrimination, and thus cannot be used in a lawsuit.


Cassell, P. (2009). In defense of victim impact statements. Ohio State Journal of Criminal Law, 6(611), 611–648.

John Booth, petitioner v. Maryland. 482 U.S. 496. (1987). Legal Information Institute.

Levy, J. (1992). Limiting victim impact evidence and argument after Payne v. Tennessee. Stanford Law Review, 45, 1027.

Payne v. Tennessee (90–5721), 501 U.S. 808. (1991). Legal Information Institute.

South Carolina v. Gathers. 490 U.S. 805. (1989). Legal Information Institute.

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LawBirdie. "Victim Impact Statements as New Type of Evidence." March 28, 2023.