Victims and voyeurs at the criminal trial

Northwestern University Law Review

Volumn 90, Issue 3, 1996, Pages 863-893

  Gewirtz, Paul ^a  

^a YALE UNIVERSITY   (United States)

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EID: 0347315020     PISSN: 00293571     EISSN: None     Source Type: Journal    
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References (98)

1. See Paul Gewirtz, Remedies and Resistance, 92 YALE L.J. 585 (1983).
2. See, e.g., DERRICK BELL, AND WE ARE NOT SAVED: THE ELUSIVE QUEST FOR RACIAL JUSTICE (1987);
3. PATRICIA J. WILLIAMS, THE ALCHEMY OF RACE AND RIGHTS (1991);
4. Kathryn Abrams, Hearing the Call of Stories, 79 CAL. L. REV. 971 (1991);
5. Jane B. Baron, Resistance to Stories, 67 S. CAL. L. REV. 255 (1994);
6. Richard Delgado, Storytelling for Oppositionists and Others: A Plea for Narrative, 87 MICH. L. REV. 2411 (1989);
7. William N. Eskridge, Jr., Gaylegal Narratives, 46 STAN. L. REV. 607 (1994);
8. Mari J. Matsuda, Looking to the Bottom: Critical Legal Studies and Reparations, 22 HARV. C.R.-C.L. L. REV. 323 (1987);
9. Kim L. Scheppele, Foreword: Telling Stories, 87 Mich. L. Rev. 2073 (1989).
10. Critiques of some of this scholarship include Daniel A. Farber & Suzanna Sherry, Telling Stories Out of School: An Essay on Legal Narratives, 45 STAN. L. REV. 807 (1993),
11. Randall Kennedy, Racial Critiques of Legal Academia, 102 HARV. L. REV. 1745 (1989).
12. See John H. Langbein, The Origins of Public Prosecution at Criminal Law, 17 AM. J. LEGAL HIST. 313 (1973).
13. The central myth about the birth of law in Western literature, Aeschylus' Oresteia, is an account of a transformation from a system of blood revenge to a public process of adjudicating crimes. See Paul Gewirtz, Aeschylus' Law, 101 HARV. L. REV. 1043 (1988).
14. See, e.g., Booth v. Maryland, 482 U.S. 496, 498 (1987), discussed infra. There, an elderly couple was murdered in the course of a robbery because the robber "knew that [they] could identify him." Id.
15. To be sure, Judge Ito did rule admissible a considerable amount of evidence about O.J. Simpson's prior abuse of his wife. So it might be said that he simply excluded evidence that was not necessary for the prosecution and that was most questionable as a matter of evidence law (and, if admitted, would make a conviction most vulnerable to reversal on appeal). There is truth to this, but the excluded evidence would have significantly added to the cumulative weight of O.J. Simpson's prior abuse. It is the cumulative evidence of abuse that arguably demonstrated the degree and intensity of his obsessiveness for control, and therefore made more plausible the argument that it could ultimately escalate to murder. In any event, the excluded evidence does underscore the various ways in which victims are silenced at trial - silenced by their murderers but also by legal rules that reinforce that silence.
16. RICHARD WRIGHT, NATIVE SON 305-08 (Perennial Library ed. 1966).
17. A Haunting End to O.J. Trial, S.F. EXAM., Sept. 30, 1995, at 1.
18. For discussions of the modern victims' rights movement in criminal law, see, e.g., GEORGE P. FLETCHER, WITH JUSTICE FOR SOME (1995);
19. ROBERT ELIAS, THE POLITICS OF VICTIMIZATION (1986);
20. ANDREW KARMEN, CRIME VICTIMS: AN INTRODUCTION TO VICTIMOLOGY (1984);
21. PRESIDENT'S TASK FORCE ON VICTIMS OF CRIME, FINAL REPORT (1982);
22. U.S. DEP'T OF JUSTICE, FOUR YEARS LATER: A REPORT ON THE PRESIDENT'S TASK FORCE ON VICTIMS OF CRIME (1986);
23. Abraham S. Goldstein, Defining the Role of the Victim in Criminal Prosecution, 52 MISS. L.J. 515 (1982);
24. Martha Minow, Surviving Victim Talk, 40 UCLA L. REV. 1411 (1993);
25. Lynne N. Henderson, The Wrongs of Victims' Rights, 37 STAN. L. REV. 937 (1985);
26. Donald Hall, Victims' Voices in Criminal Court: The Need for Restraint, 28 AM. CRIM. L. REV. 233 (1991);
27. Leroy L. Lamborn, Victim Participation in the Criminal Justice Process: The Proposals for a Constitutional Amendment, 34 WAYNE L. REV. 125 (1987);
28. Juan Cardenas, The Crime Victim in the Prosecutorial Process, 9 HARV. J.L. & PUB. POL'Y 357 (1986);
29. Josephine Gittler, Expanding the Role of the Victim in a Criminal Action: An Overview of Issues and Problems, 11 PEPP. L. REV. 117 (1984).
30. On the history and theory of victimhood more generally, see JOSEPH AMATO, VICTIMS AND VALUES: A HISTORY AND A THEORY OF SUFFERING (1990);
31. WILLIAM RYAN, BLAMING THE VICTIM (1971);
32. CHARLES SYKES, A NATION OF VICTIMS: THE DECAY OF THE AMERICAN CHARACTER (1992).
33. Representative samples of items on the victims' rights agenda are contained in the Federal Victim and Witness Protection Act of 1982, 18 U.S.C.A. §§ 1512-1515, 3663-3664 (West 1994 & Supp. 1995), and the Federal Victims of Crime Act of 1984, 42 U.S.C.A. §§ 10601-10604 (West 1995).
34. In addition to the more general literature on the victims' rights movement cited at note 9 supra, writings specifically on victim impact statements include: Vivian Berger, Payne and Suffering - A Personal Reflection and a Victim-Centered Critique, 20 FLA. ST. U. L. REV. 21 (1992);
35. Angela P. Harris, The Jurisprudence of Victimhood, 1991 SUP. CT. REV. 77;
36. Dina R. Hellerstein, The Victim Impact Statement: Reform or Reprisal?, 27 AM. CRIM. L. REV. 391 (1989);
37. Victor D. Vital, Payne v. Tennessee: The Use of Victim Impact Evidence at Capital Sentencing Trials, 19 T. MARSHALL L. REV. 497 (1994);
38. Carole Mansur. Comment, Payne v. Tennessee; The Effect of Victim Harm at Capital Sentencing Trials and the Resurgence of Victim Impact Statements, 27 NEW ENG. L. REV. 713 (1993).
39. 482 U.S. 496 (1987).
40. Id. Booth was followed in South Carolina v. Gathers, 490 U.S. 805 (1989).
41. 501 U.S. 808 (1991).
42. Interestingly, one of the things we learn from the VIS is that a sizable part of the pain of being a victim or survivor is telling and listening to stories about the murder, hearing about the murder on television, watching details about the murder at the trial, and so forth. Several of the survivors became unable to listen to further stories about the crime or, for that matter, stories about other crimes. One "can't watch movies with bodies or stabbings in it." Another can't watch television news stories about violence. A granddaughter who had previously been an "avid reader of murder mysteries" can't read them anymore. As we learn, however, survivors are unable to escape the worst stories about the murder - the stories they tell themselves. Most of the survivors describe re-enacting the crime or its discovery in their imagination again and again, a narrative that just refuses to conclude, rewinding and replaying endlessly.
43. Booth, 482 U.S. at 499-500 (citations omitted).
44. Evidence in the third category - survivors' personal opinions about the defendant and the appropriate sentence - raises different issues, is relatively uncommon, and is the sort of witness "opinion evidence" that is typically inadmissible. All of the six Justices who voted in Payne v. Tennessee to overturn Booth's exclusion of the first two categories of evidence were careful not to approve admitting this category of evidence. Payne, 501 U.S. at 830 n.2; id. at 835 n.1 (Souter, J., with whom Justice Kennedy joins, concurring).
45. Booth, 482 U.S. at 503. Legal rules about the use of victim impact statements can be seen and evaluated like any other problem of evidence in criminal trials. But the legal status of such evidence is a special problem for at least three reasons: it has become an issue of constitutional law (the law of evidence is mostly common law or statutory law); it concerns evidence used at sentencing rather than at the guilt phase of a trial; and the leading cases all concern its use in the context of death penalty sentencing. Nevertheless, the issues posed by victim impact statements can be divided into the two questions typically considered when deciding whether certain evidence should be admissible at trial, and the Supreme Court has at least implicitly addressed these two questions in analyzing the status of victim impact statements under the Constitution. First, is the evidence relevant to some issue being decided at trial? Second, assuming that the evidence has relevant probative value, is it likely to have a "prejudicial effect" that outweighs its usefulness - most typically, is the evidence likely to distort the search for truth more than enlighten it? These are both socially contingent inquiries that may change over time. Many kinds of stories have historically been excluded from trial as "irrelevant" because of what we would now call a failure to define the contested issue properly or a blindness to some reliable connection between the story and the contested issue. The idea of prejudice is also socially contingent. Over the years, as social and political attitudes have changed, the prior sexual behavior of defendants or victims, for example, has been deemed either relevant or irrelevant to the proof of certain crimes, and at times unduly prejudicial (and thus excludable) and at times not.
46. Id. at 504.
47. Id. at 505.
48. Payne, 501 U.S. at 819; South Carolina v. Gathers, 490 U.S. 805, 818-19 (1989) (O'Connor, J., dissenting); Booth, 482 U.S. at 516-17 (White, J., dissenting). In a pre-Booth capital case, Tison v. Arizona, 481 U.S. 137 (1987), the Court held that the Eighth Amendment did not bar imposing the death penalty on two brothers who had assisted their father in an armed prison breakout and a related kidnapping and robbery that resulted in several murders, even though the brothers themselves had not taken "any act which [they] desired to, or was substantially certain would, cause death." Id. at 150. "What was critical to the defendants' eligibility for the death penalty in Tison was the harm they helped bring about" and their "reckless indifference to human life," Gathers, 490 U.S. at 818, 819 (O'Connor, J., dissenting), regardless of whether they had the intent to kill. As Justice White argued in his dissent in Booth, it is common in the law for punishment to turn on the harm caused, "irrespective of the offender's specific intent to cause such harm." "[S]omeone who drove his car recklessly through a stoplight and unintentionally killed a pedestrian merits significantly more punishment than someone who drove his car recklessly through the same stoplight at a time when no pedestrians were there to be hit." Booth. 482 U.S. at 516. The argument that different levels of punishment may be appropriate where there are different consequences, despite the fact that the punished people have the same state of mind, is bolstered by important recent philosophical writing on "moral luck." This work has challenged the notion that the moral status of an action is dependent solely on factors under the actor's control, and suggests that the luck of unintended consequences (or of personality or intentions) can affect an action's moral status. See MARTHA C. NUSSBAUM, THE FRAGILITY OF GOODNESS 336-40 (1986);
49. Thomas Nagel, Moral Luck, in MORTAL QUESTIONS 24 (1979);
50. Bernard Williams, Moral Luck, in MORAL LUCK 20-39 (1981). The notion being challenged - that luck cannot affect one's moral status - has its classic expression in the work of Immanuel Kant.
51. See, e.g., IMMANUEL KANT, GROUNDWORK OF THE METAPHYSICS OF MORALS 62 (H.J. Paton trans., 1964) (1785).
52. Payne, 501 U.S. at 838 (Souter, J., concurring).
53. Id. at 865 (Stevens, J., dissenting) (emphasis added and citation omitted).
54. Id.
55. Id. at 861-62.
56. Booth, 482 U.S. at 507 n.10, 509 n.12.
57. See articles cited in note 2 supra and my introductory essay, Narrative and Rhetoric in the Law, in LAW'S STORIES (Peter Brooks & Paul Gewirtz eds., forthcoming 1996).
58. E.g., Eddings v. Oklahoma, 455 U.S. 104 (1982).
59. The dissenters in Booth and the majority in Payne argue that it is only fair to allow evidence about particular characteristics of the murder victim because the Constitution has been interpreted to allow capital defendants to introduce any evidence about their particular characteristics that might lead a jury to decide to mitigate the punishment. It is true, as Justice Stevens says in his Payne dissent, that our law often embraces rules "weighted in the defendant's favor" (the requirement of proof beyond reasonable doubt; rules regarding evidence of the defendant's character and reputation). 501 U.S. at 860. But the question is: Why should there be a weighting or asymmetry concerning this particular kind of evidence? If information about the defendant's particular characteristics is thought helpful at sentencing, why isn't the same true of information about the victim's particular characteristics?
60. As Martha Minow has written, "[t]he biggest check on selectivity problems in storytelling lies in the availability of another story." Martha Minow, Stories in Law, in LAW'S STORIES, supra note 27.
61. Payne, 501 U.S. at 822, 823 (citations and emphases omitted).
62. Many people, of course, do believe that some lives are more valuable than others-although they would probably prefer to say that some lives contribute more to human betterment than other lives, so their loss imposes more harm on the community. But many others believe such a position is repellent. The majority in Booth suggests, albeit in a footnote, that "our system of justice does not tolerate" the notion that "defendants whose victims were assets to their community are more deserving of punishment than those whose victims are perceived to be less worthy." 482 U.S. at 506 n.8. The majority in Payne tries to avoid this issue by insisting that evidence of the victim's particular characteristics "is not offered to encourage comparative judgments of this kind . . . . It is designed to show instead each victim's 'uniqueness as an individual human being,' whatever the jury might think the loss to the community resulting from his death might be." 501 U.S. at 823. One question is whether the jury will distinguish between this particularization and a comparative valuation (and whether, if pushed, the Payne majority would say that the jury must do so). Justice White's dissent in Booth took on the majority more directly, arguing that the state may "if it chooses, include as a sentencing consideration the particularized harm that an individual's murder causes to the rest of society." 482 U.S. at 517. This is apparently a willingness to allow stronger punishments to be imposed on defendants whose victims are perceived to be greater assets to the community. (White points to federal statutes that authorize death sentences for the murder of only certain specified public officials, such as the President, id. at 517 n.2, although those statutes can be seen as authorizing greater punishments when a killing is an attack on the state as well as an individual victim.) As noted above, the Court majority in Payne v. Tennessee tries to avoid White's argument. However, in other legal contexts, such as civil wrongful death actions, juries are invited to make different-sized damage awards based on the relative harm caused by the loss of the life in question or some similar valuation.
63. E.g., PETER BROOKS, READING FOR THE PLOT 216-37 (Vintage 1985);
64. M. BAKHTIN, THE DIALOGIC IMAGINATION 259 (Michael Holquist ed., Caryl Emerson & Michael Holquist trans., 1981).
65. It would be an interesting project to examine various "model instructions" for the purpose of excavating and analyzing theories of audience reception that underlie them, including the basic assumption that a judge's instructions can significantly affect how the jury processes what it hears.
66. I do not address in the text one aspect of this that the Booth opinion discusses: that evidence about the victim and survivors may lead the defendant to want to rebut this evidence, producing a mini-trial about the victim and victim's family that consumes time and distracts attention from the defendant and the crime. 482 U.S. at 506-07. Telling a story often prompts others to tell a story, and this is especially true in our adversarial system, where virtually no utterance by one side goes unanswered by the other. But the argument about distraction really begs the question here, which is whether victim evidence is indeed a distraction from relevant matters or is itself one of the relevant matters. That issue I have discussed in the text above. The length of court time that such matters consume is essentially a management issue that courts are well equipped to handle - indeed, they handle such issues on a daily basis. The fear of distraction is largely chimerical. Indeed, in Booth itself there was no distraction problem, for victim impact evidence was presented through the reading of a compact document rather than through the more time-consuming presentation of live witnesses, and there was no defense rebuttal.
67. Booth, 482 U.S. at 508-09 ("[T]he formal presentation of this information by the State can serve no other purpose than to inflame the jury and divert it from deciding the case on the relevant evidence concerning the crime and the defendant. As we have noted, any decision to impose the death sentence must 'be, and appear to be, based on reason rather than caprice or emotion.' The admission of these emotionally charged opinions as to what conclusions the jury should draw from the evidence clearly is inconsistent with the reasoned decisionmaking we require in capital cases.") (citations omitted); see Payne, 501 U.S. at 856 (Stevens, J., dissenting) (noting that victim impact evidence "serves no purpose other than to encourage jurors to decide in favor of death rather than life on the basis of their emotions rather than their reason"); cf. id. at 831-32 (O'Connor, J., concurring) (observing that jurors were "moved by this testimony" about the survivors' emotional suffering, and acknowledging "the possibility that this evidence may in some cases be unduly inflammatory," but concluding that this does not justify a prophylactic. Constitution-based rule that this evidence may never be admitted, because "unduly inflammatory" evidence that renders the proceedings "fundamentally unfair" may be excluded under the Due Process Clause of the Fourteenth Amendment); cf. id. at 836 (Souter, J., concurring) ("Evidence about the victim and survivors, and any jury argument predicated on it, can of course be so inflammatory as to risk a verdict impermissibly based on passion, not deliberation."); see also Victim Justice, NEW REPUBLIC, Apr. 17, 1995, at 9.
68. Saffle v. Parks, 494 U.S. 484, 490 (1990) (refusing to strike down an instruction at the penalty phase of a capital trial telling the jury to avoid any influence of sympathy); id. at 493 ("It would be very difficult to reconcile a rule allowing the fate of a defendant to turn on the vagaries of particular jurors' emotional sensitivities with our longstanding recognition that, above all, capital sentencing must be reliable, accurate, and nonarbitrary."); id. at 495 ("The objectives of fairness and accuracy are more likely to be threatened than promoted by a rule allowing the sentence to turn not on whether the defendant, in the eyes of the community, is morally deserving of the death sentence, but on whether the defendant can strike an emotional chord in a juror."); California v. Brown, 479 U.S. 538, 545 (1987) (O'Connor, J., concurring) (upholding a judge's instruction to a capital sentencing jury that it should not be swayed by "mere sympathy" and affirming that the death penalty decision must be a "reasoned moral response," not an "emotional response").
69. See Gewirtz, supra note 4.
70. Brown, 479 U.S. at 545 (O'Connor, J., concurring).
71. Payne, 501 U.S. at 832 (O'Connor, J., concurring).
72. Booth, 482 U.S. at 508 (quoting Gardner v. Florida, 430 U.S. 349, 358 (1977)).
73. 494 U.S. 484 (1990).
74. Id. at 514 (Brennan, J., dissenting).
75. I develop some of these points at greater length in On "I Know it When I See It", 105 YALE L.J. 1023 (1996).
76. See Anthony Kronman, Leontius' Tale, in LAW'S STORIES, supra note 27.
77. See, e.g., EXPLAINING EMOTIONS (Amelie Oksenberg Rorty ed., 1980);
78. RONALD DE SOUSA, THE RATIONALITY OF EMOTION (1987);
79. MARTHA C. NUSSBAUM, LOVE'S KNOWLEDGE (1990);
80. ANTONIO R. DAMASIO, DESCARTES' ERROR: EMOTION, REASON, AND THE HUMAN BRAIN (1994);
81. ROBERT C. SOLOMON, A PASSION FOR JUSTICE: EMOTIONS AND THE ORIGIN OF THE SOCIAL CONTRACT (1990);.
82. Cases upholding anti-sympathy jury instructions, such as California v. Brown and Saffle v. Parks, fail to acknowledge this last point, however. See supra note 37.
83. See Samuel H. Pillsbury, Emotional Justice: Moralizing the Passions of Criminal Punishment, 74 CORNELL L. REV. 655 (1989).
84. See Williams v. Chrans, 945 F.2d 926, 947 (7th Cir. 1991) ("We must recognize that the state should not be required to present victim impact evidence . . . devoid of all passion.").
85. Paul Brest, Foreword: In Defense of the Antidiscrimination Principle, 90 HARV. L. REV. 1, 7 (1976) (emphasis added). The problem of "selective sympathy" can undoubtedly surface in the context of victim impact evidence. Specifically, evidence about the victim's particular character-istics might evoke sympathy only for victims who come from a juror's own racial, ethnic, or class background. See Harris, supra note 11. This problem is not peculiar to victim impact evidence. It arises just as much in the context of the defendant's mitigation evidence, where there is a risk that jurors will react sympathetically only to mitigating circumstances that resonate with their own backgrounds. (This is one concern that the Supreme Court has said justifies the use of anti-sympathy instructions at trials. See supra notes 37 and 47.) It also arises during the guilt phase of trial, where there is always the possibility that jurors' assessments of witnesses' credibility will rest upon selective identification with certain witnesses that is rooted in nonrational factors. Thus, the risk of selective sympathy - which, in my judgment, is not only one of the most serious problems with victim impact evidence but a serious problem in the criminal justice system more generally - cannot be a basis for excluding victim impact evidence in particular. It can, however, be the basis for efforts by lawyers and judges to make jurors more aware of their possible biases.
86. As noted above in the Booth case the VIS read to the jury was prepared by a government official, referred to as "the writer" in the VIS. Using indirect discourse, she retells the stories that the victims' family members have told her. But "the writer" also reacts to what she has recounted ("Perhaps [the victims' granddaughter] described the impact of the tragedy most eloquently when she stated that . . ."; "It became increasingly apparent to the writer as she talked to the family members that . . ."). Booth v. Maryland, 482 U.S. 496, 511, 515 (1987). We are made aware of the shaping voice of a narrator, and what the survivors are reported as saying gains weight because this calm official narrator stands behind them. And because this official narrator tells us her response to what the survivors have told her, we the audience - and, more important, the audience of jurors - are pointed to an "appropriate" response and thus encouraged to respond in the same way.
87. ABC World News Tonight (ABC television broadcast, Feb. 17, 1992).
88. Booth, 482 U.S. at 501.
89. See Williams v. New York, 337 U.S. 241 (1949).
90. Booth, 482 U.S. at 505.
91. Id. As a threshold matter, there must be a story to construct and a storyteller to do the constructing - and some murder victims may leave no survivors. Making victim impact evidence part of the capital sentencing process may make the defendant's likelihood of receiving a death sentence turn on the presence or absence of survivor-storytellers. Narratological questions to one side, the fairness of such a situation implicates matters discussed above.
92. See Berger, supra note 11.
93. Testimony during the guilt phase of the trial can create some of this anxiety, but at that stage survivor-witnesses typically testify to relatively objective facts - very different from the accounts of subjective suffering or the heavily shaped victim portraiture in victim impact evidence.
94. See, e.g., Dean G. Kilpatrick & Randy K. Otto, Constitutionally Guaranteed Participation in Criminal Proceedings for Victims: Potential Effects on Psychological Functioning, 34 WAYNE L. REV. 7 (1987).
95. The highest visibility cases over the past several years have certain common subject matters and themes. Most involve a riveting role reversal, as when a celebrity or member of some respectable elite is accused of being base (Kennedy Smith, Simpson, the Menendez brothers, Fleiss and her clientele, the Rodney King police). Most involve either matters of sex (Kennedy Smith, Dahmer, the Bobbitts, Fleiss, Simpson) or race (Simpson, Rodney King). Only a few - Susan Smith's killing of her children, for example - rivet precisely because of the emergence of horrifying deviance out of utter ordinariness (although here too the notoriety developed out of a major role reversal: the pleading mother revealed to be the hunted murderer).
96. Color Blinded? Race Seems to Play an Increasing Role in Many Jury Verdicts, WALL ST. J., Oct. 4, 1995, at 1.
97. CHARLOTTE BRONTE, JANE EYRE 296 (Random House 1993) (1847).
98. Payne v. Tennessee, 501 U.S. 808, 867 (1991) (Stevens, J., dissenting).