You are a judge in Oklahoma, a state that contains a constitutional provision similar to that of the Michigan state constitution:

Section 24:

1. Crime victims, as defined by law, shall have the following rights, as provided by law:

The right to confer with the prosecution.

Although these provisions do not provide explicit guidelines to you, judicial guidance has been provided by the case of Cargle v. State, 909 P.2d 806 (1995).

Cargle v. State, 909 P.2d 806 (Okla. Cir. App. 1995):

Richard Paisley was a woodcarver. He and his wife Sharon had moved . . . [to] Oklahoma City to study southwestern art forms. . . . It was the prosecution's theory they sold bad marijuana to Appellant and his friends, and this sale led to their deaths. . . .

[Cargle] claims the broad, unlimited use of victim impact evidence in his case violated the Eighth Amendment. . . because the prosecution was allowed to present highly emotional, irrelevant evidence to the jury. . . . [T]he most emotional presentation came from Nancy Davis, Richard Paisley's sister, who read a prepared statement detailing the life of Richard from childhood until his death. Sharon�s mother, Shirley Howell, testified about Sharon. (See footnotes 12 and 13 regarding the specific testimony presented). . . .

Appellant. . . contends that without some guidelines, the evidence becomes nothing more than a "super aggravator" which negates the narrowing function death penalty procedures are required to provide.

[V]ictim impact evidence is permissible because "the State has a legitimate interest in counteracting the mitigating evidence which the defendant is entitled to put in, by reminding the sentencer that just as the murderer should be considered as an individual, so too the victim is an individual whose death represents a unique loss to society and in particular to his family."

But the ability to present victim impact evidence does not, as Appellant suggests, mean the "floodgates have opened" and that everything the prosecution wishes is admissible. While the rules of evidence are not to be applied in a mechanistic fashion in the sentencing stage of a capital case, they nonetheless do apply. We must be cognizant of the fact that, although it does not violate the Eighth Amendment, evidence may be introduced "that is so unduly prejudicial that it renders the trial fundamentally unfair," thus implicating the Due Process Clause of the Fourteenth Amendment. Therefore, the trial court was incorrect when he stated the statute authorizing victim impact evidence does not "narrowly define it, confine it." The evidence must be not only relevant, but subject to the balancing provisions of [the statute].

[H]owever. . . [t]he underlying principles in Payne [v. Tennessee, 501 U.S. 808 (1991)] seem to indicate more scrutiny is needed. . . . This case is an example of victim impact evidence coming perilously close to weighting the scales too far the other way. In the face of the highly emotional statement by Ms. Davis, Appellant presented only his minister, who testified he used to have a close relationship with Appellant, who came from loving and caring people and who during the past few years "just kind of got apart" from his parents and the church.

[W]e find existing statutes, when properly utilized, contain sufficiently stringent guidelines outlining the use of victim impact evidence:

So long as these personal characteristics show how the loss of the victim will financially, emotionally, psychologically, or physically impact on those affected, it is relevant, as it gives the jury "a glimpse of the life" which a defendant "chose to extinguish. However, these personal characteristics should constitute a "quick" glimpse, and its use should be limited to showing how the victim's death is affecting or might affect the victim's survivors, and why the victim should not have been killed.

[T]he evidence presented in this case exceeded the statutory framework of admissible evidence. The prosecutor himself seemed to acknowledge as much when, in discussing the evidence before the beginning of the second stage, told the court "[t]he women are going to be very emotional. The man probably will make more we feel he can do a better job in explaining what the impact has been."

-----------------------------------------------------------------------------------------------------

The case before you involves the murder of a ten-year-old boy. The boy, Tim, was killed during a drag race between the defendant and another college student. Both were intoxicated at the time, and were driving through a heavily populated, residential neighborhood. The defendant, John, has been found guilty by the jury. At the sentencing stage, the prosecution notifies you that a number of family members wish to make statements to the jury.

Given the clear intent in the state constitution to provide victims and their families "the right to be treated with fairness and respect for their dignity and privacy throughout the criminal justice process, the defendant's right to a fair trial, and the guidelines established in Cargle, how and why would you decide the following questions?

1) Tim's mother wishes to present evidence regarding her son's exemplary performance in school and on standardized tests. Tim had already skipped a grade of elementary school and was enrolled in advanced reading and math courses. One year before his death, Tim was accepted at the Burton School for the Gifted, where he was at the top of his class. Despite his age, Tim had discussed with parents and teachers his interest in attending medical school after college. He had read chemistry and anatomy books at the high school level and once even dissected a frog, correctly naming different organs. Tim often used to walk around the house in a doctor's outfit, with a stethoscope and his doctor's bag. Tim would have made a great doctor.

2) The only mitigating evidence the defendant presents is the testimony of a psychologist who testifies that John has exhibited all of the classic signs of an alcoholic. She further testifies that alcoholics often find themselves in a stupor, where they are almost unable to control their actions or exercise discretion in a rational way. Tim's father wishes to testify that he believes the defendant should receive the death penalty. He disagrees with the psychologist's assertion that John didn't know what he was doing, and that even if this were true, John should receive the death penalty. He wishes to testify that his neighborhood had signs posted every 100 yards warning that children were at play and that the speed limit was 15 miles per hour. Furthermore, his son never played within 10 yards of the street which must mean that John swerved off the road to hit Tim (there is no physical evidence to support or contradict this statement).

3) Tim's father also wishes to testify that his wife had a nervous breakdown after Tim's death and blamed herself for allowing Tim to play out in the yard that day. He wishes to describe the emotional and physical trauma his wife went through, her admittance to a mental institution for two months, the conditions at the institution, and the cost associated with her recent medical bills. Furthermore, the father wishes to explain to the jury that his wife had attempted suicide two weeks after Tim's death and suffers partial paralysis as a result.

Dave Krugler

Emory Law

Answer

Subjective statutory analysis.