January 26, 2005
VICTIM'S FAMILY TESTIMONY AT PENALTY PHASE OF CAPITAL CASES
By: Christopher Reinhart, Senior Attorney
You asked whether the victim's family can address the jury during a death penalty sentencing hearing in Connecticut and whether other states allow it.
The Connecticut Constitution grants victims, as defined by the General Assembly, the right to make a statement to the court at sentencing (Amendment XXIX, codified at Art. I, § 8). By statute, a victim impact statement prepared by a victim advocate for the court files can be “read in court prior to imposition of a sentence upon a defendant found guilty of a crime punishable by death” (CGS § 54-46d). We did not find any cases interpreting the constitutional provision or statute.
The Connecticut Commission on the Death Penalty discusses opinions on the statute in its report. Superior Court Judge Thomas Miano, who presided over three death penalty cases, testified before the commission. The report states that his view is the prevailing interpretation of the statute. Under his interpretation, imposition of sentence is when the court pronounces the sentence based on the jury's findings on aggravating and mitigating factors. Thus, the victim impact statute allows a victim statement to be read, at the court's discretion, after the jury's fact-finding in the penalty phase and before the court imposes the sentence (“Study Pursuant to PA 01-151 of the Imposition of the Death Penalty in Connecticut,” January 8, 2003).
We looked at other states with the death penalty and found 10 states where a victim's survivor is authorized to testify in a death penalty sentencing hearing. In an 11th state (Maryland), the court has discretion to allow testimony. In another state (North Carolina), the state Supreme Court cited a statute giving victims the right to offer admissible evidence of a crime's impact as authorizing a victim impact statement in a death penalty sentencing proceeding. Also, in Georgia, the death penalty sentencing statute authorizes the court to allow certain evidence from a victim's family. It is not clear whether families have a right to testify in these two states.
Nine states have generally applicable constitutional or statutory provisions that give victims the right to testify at sentencing proceedings that appear to apply in death penalty sentencing proceedings. An additional seven states have generally applicable constitutional or statutory provisions that grant victims some role in sentencing, such as the right to be heard. These also appear to apply in death penalty sentencing proceedings but it is not clear whether they include the right to testify.
We found two states that authorize victims to make statements after sentencing. Indiana does so specifically in its death penalty statute. Texas does so in a general sentencing statute that may apply to death penalty sentencing proceedings.
In a number of the states discussed below, the statute or court rulings place restrictions on the type of evidence that can be presented and how it can be presented but that information is not included in this report.
STATUTES AND CASES ON RIGHTS IN DEATH PENALTY SENTENCING HEARINGS
Right to Testify in Death Penalty Sentencing Hearings
In the following states, a victim's survivor has the right to testify in a death penalty sentencing hearing.
1. Arizona: A victim has the right to be heard at any proceeding involving sentencing (Ariz. Const. Art. II, § 2.1). In any proceeding where the victim has the right to be heard, the victim is not subject to cross-examination (Ariz. Stat. § 13-4426.01). A victim has the right to present any relevant information at the aggravation stage (when aggravating factors are proven) of a death penalty sentencing hearing subject to the rules of evidence. A victim has the right to present information at the penalty phase (when evidence is presented to determine whether there is mitigation that calls for leniency) about the murdered person and the impact of the murder on the victim and family members and can submit a victim impact statement in any format to the trier of fact (Ariz. Stat. § 13-703.01). In a case where the murder victim's spouse testified, the Arizona Supreme Court ruled that he was entitled to be heard under the constitution (Lynn v. Reinstein, 68 P.3d 412 (Ariz. 2003)).
2. Arkansas: A victim's rights statute, cited by the state Supreme Court in a death penalty case, requires the court before imposing sentence to allow the victim to present a victim impact statement in writing or under oath at the sentencing proceeding (Ark. Code § 16-90-1112).
3. Illinois: A victim has the right to make a statement to the court at sentencing (Ill. Const. Art. I, § 8.1). The statutes also grant this right and define “victim” as including a single representative who can be the spouse, parent, child, or sibling of a person killed as a result of a violent crime (725 ILCS 120/3). The Illinois Supreme court ruled that the victim's rights statute gives relatives of a deceased the right to address the court about the impact of the crime on their lives and the evidence is admissible in the penalty phase of a capital sentencing hearing (People v. Hope, 702 N.E.2d 1282 (1998)).
4. Louisiana: A victim has the right to be heard during all criminal stages of preconviction and postconviction proceedings (La. Const. Art. I, § 25). Death penalty sentencing hearings include evidence about the victim and the impact of the crime on the victim, family members, friends, and associates. The family, friends, and associates can decline the right to testify and testifying for the state makes them subject to cross-examination (La. Code of Crim. Pro. Art. 905.2).
5. New Hampshire: Before a judge sentences a person for capital murder, the victim's next of kin has the opportunity to address the judge. The person can appear personally or by counsel to reasonably express his views about the offense, the person responsible, and the need for restitution. The judge can consider the statements when imposing sentence (N.H. § 651:4-a).
6. New Mexico: New Mexico's constitution and statutes grant victims the right to make a statement to the court at sentencing (N.M. Const. Art. II, § 24(A)(7), N.M. Stat. § 31-26-4). The New Mexico Supreme Court interpreted the statute as giving the victim's family or a representative a right to make a statement before the sentencing authority (State v. Allen, 994 P.2d 728 (N.M. 1999)).
7. Ohio: In felony cases, the court must permit the victim to make a statement before imposing a sentence (Ohio Stat. §§ 2929.19, 2930.14). Ohio Supreme Court cases show that victim evidence is admissible under these two statutes in death penalty sentencing proceedings.
8. Oregon: A victim has the right to be heard at sentencing (Or. Const. Art. I, § 42). The Oregon Supreme Court ruled that, under the constitution, relatives of a murder victim were entitled to testify in the penalty trial of a capital murder prosecution as to relevant evidence of the murder victims' personal characteristics and the impact of the crime on the murder victims' family (State v. Guzek, 86 P.3d 1106 (Ore. 2004))
9. Virginia: Victims have the right to address the court at the time sentence is imposed (Va. Const. Art. I, § 8-A). In a death penalty sentencing hearing, the court must allow the victim, on motion of the commonwealth attorney and with the victim's consent, to testify in the presence of the accused about the crime's impact on the victim. A victim includes a parent, child, spouse, sibling, or legal guardian of a homicide victim (Va. Code § 19.2-264.4; 19.2-299.1; 19.2-11.01).
10. Washington: On notice to the prosecutor, a victim of a felony has the right to make a statement at sentencing subject to the same procedures that govern the defendant's rights. The prosecutor can choose a representative to exercise these rights for a deceased victim (Wash. Const. Art. I, § 35). The statutes require a reasonable effort to ensure that victims (and survivors of victims) have the right to present a statement personally or by representation at the sentencing hearing for felony convictions (RCW § 7.69.030). The state Supreme Court upheld the admissibility of victim impact evidence in death penalty sentencing hearings based on the U.S. Supreme Court's rulings and the state constitutional victim's right amendment (State v. Gentry, 888 P.2d 1105 (Wash. 1995)).
Judge's Discretion to Allow Testimony
In addition, Maryland provides a right to testify but grants the court some discretion. Before imposing a sentence in a death penalty sentencing hearing, a victim's representative (1) must be allowed, if practicable, to address the court under oath either at the prosecution's request or if the victim files notification request form or (2) can be allowed to address the court under oath at the representative's request. The defendant can cross-examine the person. The court can hold a hearing outside the jury's presence to decide whether the representative can orally address the jury (Md. Code Crim. Pro. §§ 11-403 and -404).
Right To Be Heard Or Offer Evidence In Death Penalty Sentencing
In North Carolina, the constitution gives victims the right to be heard at sentencing in a manner prescribed by law (N.C. Const. Art. I, § 37). Under a statute, a victim has the right to offer admissible evidence of the crime's impact and the court or jury must consider it in sentencing. The North Carolina Supreme Court cited the statute as authorizing a victim impact statement in a death penalty sentencing case (State v. Smith, 532 S.E.2d 773 (N.C. 2000)). We also found a case where the court upheld testimony from a victim's family (State v. Roache, 595 S.E.2d 381 (N.C. 2004)).
Judge's Discretion to Allow Evidence from Family
The Georgia death penalty sentencing statute authorizes the court to allow evidence from the family of the victim or other witnesses for specific types of impact evidence in a manner and degree that does not inflame or unduly prejudice the jury (Ga. Stat. 17-10-1.2). But it does not discuss the right to make a statement.
The Georgia Supreme Court upheld the statute after considering the rationale for admitting victim impact evidence and the safeguards imposed by the statute (Livingston v. State, 444 S.E.2d 748 (1994)). In another case, the state presented the victim's mother and sister as witnesses and the court approved of the testimony with certain safeguards (Turner v. State, 486 S.E.2d 213 (Ga. 1997)).
GENERALLY APPLICABLE CONSTITUTIONAL/STATUTORY RIGHTS
We found 16 states where a generally applicable constitutional or statutory provision either gives victims the right to testify or to have some role in sentencing proceedings, such as the right to be heard, that appears to apply in death penalty sentencing proceedings.
General Right to Testify at Sentencing Proceedings
1. Florida: A victim has a constitutional right to be heard when relevant, at all critical stages of criminal proceedings, to the extent these rights do not interfere with the accused's constitutional rights (Fl. Const. Art. 1, § 16). Before imposing a sentence for a felony, the court must allow the victim or the next of kin of a victim who died from the crime to (1) appear and make a statement under oath for the record at a sentencing hearing and (3) submit a written statement under oath to the state attorney to be filed with the court (Fl. Stat. § 921.143).
2. Mississippi: Victims have a constitutional right to be heard during public hearings, when authorized by law (Miss. Const. Art 3, § 26A). A victim's rights statute gives a victim the right to present an impact statement or information concerning the offense or sentence during any sentencing proceeding (Miss. Code 99-43-33). If the court does not order a presentence evaluation report on a defendant in a felony case, the victim or a victim representative can submit a victim impact statement (1) orally, with the court's permission or (2) in writing, presented to the prosecutor to present to the trial judge before sentencing (Miss. Code § 99-19-157).
3. Montana: At sentencing, the court must permit the victim to present a statement and the victim has the option to present it in writing before the sentencing hearing, orally under oath at the hearing, or both (Mont. Code § 46-18-115).
4. Nebraska: A victim as defined by law, his guardian, or a representative has a constitutional right to make an oral or written statement at sentencing (Neb. Const. Art, I, § 28). A victim's right statute requires victims, including the nearest surviving relatives of homicide victims, to be informed of their right to submit a written impact statement at the sentencing proceeding or to read at the sentencing proceeding, the statements they submit for a presentence investigation report (Neb. Stat. § 81-1848).
5. Oklahoma: Victims have a constitutional right to be heard at any sentencing hearing (OK Const. Art. 2, § 34). Each victim, members of the victim's immediate family, or a person designated by the victim or victim's family members, can present a written victim impact statement or appear personally at the sentencing proceeding to present the statements orally. A person who wishes to appear personally has an absolute right to do so (OK Stat. § 22-984.1).
6. Pennsylvania: A victim's rights statute gives victims an opportunity to offer prior comment on the sentencing of a defendant, including a written and oral victim impact statement detailing the physical, psychological, and economic effects of the crime on the victim and the victim's family (Pa. St. 18 § 11.201).
7. South Carolina: Victims have a constitutional right to be heard at any proceeding involving sentencing (S.C. Const. Art. I, § 24). The prosecuting agency must reasonably attempt to notify each victim of the right to submit oral and written victim impact statements (S.C. Code § 16-3-1545).
8. South Dakota: A victim, on request and in the discretion of the court, can address the court before it imposes sentence (S.D. § 23A-27-1.1).
9. Tennessee: A victim has the right to be heard, when relevant, at all critical stages of the criminal justice process as defined by the General Assembly (Tenn. Const. Art. I, § 35). A statute defines “critical stages” to include the sentencing hearing and specifies who can exercise these rights when the victim is deceased (Tenn. Code § 40-38-302). A victim's rights statute gives victims the right, whenever possible, to submit a victim impact statement to the courts and to give impact testimony at court sentencing hearings (Tenn. Code § 40-38-103).
In each of the above states we found a statute or case admitting victim impact evidence in death penalty sentencing. A number of the cases involved testimony by a victim's family. Under these statutes and cases, a victim's family could be allowed to testify but we did not find cases specifically on the family's right to testify in a death penalty sentencing proceeding.
General Right To Be Heard Or Otherwise Have A Role In Sentencing
1. Alabama: The constitution grants victims the right to be heard when authorized at all crucial proceedings to the extent these rights do not interfere with the constitutional rights of the accused (Ala. Const. Amend. 557). A victim's rights statute grants victims the right to present evidence, an impact statement, or information about the offense or sentence during sentencing (Al. Code 15-23-74).
2. Colorado: A victim's rights statute gives a victim the right to be heard when relevant at all critical stages of the criminal justice process (Colo. Const. Art II, § 16a). A victim has the right to be heard at any proceeding involving sentencing (Colo. Stat. § 24-4.1-302.5).
3. Idaho: A victim, as defined by statute, has the right to be heard at all criminal justice proceedings considering sentencing unless manifest injustice would result (Id. Const. Art. I, § 22). A statute also includes this same provision and authorizes the immediate family of a homicide victim to exercise this right and the court to designate a representative from the immediate family to exercise this right (Id. Code § 19-5306(3)).
4. Kansas: A victim, as defined by law, has the right to be heard at sentencing to the extent it does not interfere with the constitutional or statutory rights of the accused (Kan. Const. Art. 15, § 15). When the personal interests of a victim are affected, the victim's views or concerns should, when appropriate and consistent with criminal law and procedure, be brought to the court's attention (KS Stat. § 74-73333 et seq.).
5. Missouri: Under the Missouri Constitution, a crime victim has the right to be heard at a sentencing (Mo. Const. Art. I, § 32). A victim's rights statute gives a victim the right to be heard at sentencing for cases involving certain crimes, such as 1st degree murder (Mo. Stat. § 595-209).
6. Nevada: The legislature must provide for the rights of victims, personally or through a representative, to be heard at all sentencing proceedings (Nev. Const. Art. I, § 8). Before imposing sentence, the court must allow the victim to appear personally, by counsel, or by personal representative to reasonably express any views about the crime, the person responsible, the impact on the victim, and the need for restitution. A victim includes a relative of a person killed in the crime (NRS § 176.015).
7. New York: For felonies, the court must give the victim or a member of the victim's family the right to make a statement on any matter relevant to sentencing if the victim requests it at least 10 days before sentencing (N.Y. Crim. Pro. § 380.50).
In Alabama, Colorado, and Missouri, we found a statute or case admitting victim impact evidence in death penalty sentencing. In Alabama and Missouri, the cases involved a victim's family's testimony. But we did not find a case on the family's right to testify in death penalty sentencing proceedings.
VICTIM STATEMENTS AFTER SENTENCING
In Indiana, a statute grants victims the right to be heard at any proceeding involving sentencing (Ind. Code § 35-40-5-5). But the death penalty sentencing statute specifies that after the court pronounces sentence, a representative of the victim's family and friends can present a statement on the impact of the crime on family and friends. The representative can submit the statement in writing or present it orally. The statement must be given in the defendant's presence (Ind. Code § 35-50-2-9(e)).
Indiana does allow victim impact evidence in death penalty sentencing hearings if it is relevant to aggravating or mitigating circumstances (Holms v. State, 671 N.E.2d 841 (Ind. 1996)).
Under a generally applicable sentencing statute in Texas, the court must permit a victim or close relative of a deceased victim to appear in person to present to the court and defendant a statement of the person's views about the offense, the defendant, and the effect of the offense on the victim. The statement is made after punishment is assessed and the
court determines whether to grant community supervision, after the court announces the terms of the sentence, and after sentence is pronounced (Tex. Code Crim. Pro. § 42.03).
Texas does allow victim impact evidence in death penalty sentencing proceedings under certain circumstances (Galloway v. State, 2003 WL 1712559 (Tex.Crim.App. 2003)).