Victim Impact Statement 2004

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Who Is the Victim Anyway? The Effects of Bystander Victim Impact
Statements on Mock Juror Sentencing Decisions
Mila Green McGowan, Bryan Myers. Violence and Victims. New York: Jun 2004. Vol. 19, Iss. 3; pg. 357, 18 pgs

Abstract (Summary)
Victim impact evidence was varied in a brief trial scenario given to 120 participants eligible for jury service. The
scenario concerned the murder trial of a disgruntled employee accused of bombing his former workplace. Participants
read either no victim impact evidence or one of three victim impact statements. For the victim impact statements, we
varied the identity of the witness. The victim impact statement was given by either the wife of the victim, a coworker of
the victim, or a firefighter called to the crime scene. Results revealed that only the victim impact evidence given by the
coworker lead to harsher sentencing judgments. However, participants rated the suffering of the victim's wife as most
severe, indicating that perceptions of suffering may not predict sentencing judgments in a straightforward manner.
Implications for these findings for legal decisions such as Payne v. Tennessee (1991) are discussed. [PUBLICATION
ABSTRACT]

Full Text (9909 words)

Copyright Springer Publishing Company Jun 2004

[Headnote]
Victim impact evidence was varied in a brief trial scenario given to 120 participants eligible for jury service. The scenario
concerned the murder trial of a disgruntled employee accused of bombing his former workplace. Participants read either no
victim impact evidence or one of three victim impact statements. For the victim impact statements, we varied the identity of the
witness. The victim impact statement was given by either the wife of the victim, a coworker of the victim, or a firefighter called
to the crime scene. Results revealed that only the victim impact evidence given by the coworker lead to harsher sentencing
judgments. However, participants rated the suffering of the victim's wife as most severe, indicating that perceptions of
suffering may not predict sentencing judgments in a straightforward manner. Implications for these findings for legal decisions
such as Payne v. Tennessee (1991) are discussed.
Keywords: victim impact statements; sentencing; juror judgments

The introduction of victim impact testimony during capital sentencing proceedings continues to elicit debate among
legal scholars (e.g., see Ashworth, 1993; Engle, 2000; Flamm, 1999; Freenberg, 2000; Logan, 1999; 2000; Sullivan,
1998). Yet, despite the controversy, there is evidence to suggest that its prevalence in criminal proceedings is
increasing. According to Logan (1999), 32 of the 38 states that use the death penalty now permit victim impact
statements during sentencing in capital trials. In addition, the United States Congress has provided for the admission
of victim impact evidence in all federal trials by creating legislation which affords each state the freedom to determine
the uses and forms of victim impact evidence (Flamm, 1999). As a result, nearly all states have adopted a specific
code section in their Penal Code or Criminal Code systems addressing victim impact evidence.

Victim impact statements, either in written or oral form, consist of information presented to the jury or judge during the
sentencing phase of a criminal trial that address the impact the defendant's crime has had on the victim directly or the
victims' surviving family indirectly. Typically, a victim impact statement includes the identity of the offender, the financial
losses suffered by the victim, a list of any physical injuries sustained by the victim, any changes to the victim's welfare
or familial relationships, requests or the need for psychological services, and any other information relating to the
impact of the offense (Booth v. Maryland, 1987). However, victim impact statements (VIS) may take a variety of
different forms, as many states provide wide latitude regarding what constitutes permissible VIS testimony. For
example, in some states, VIS has come in such forms as the discussion of explicit details of the criminal act itself as
well as the witnesses' recommendation for an appropriate punishment (Blume, 2003), a reading of the decedent's

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favorite religious tracts (South Carolina v. Gathers, 1989), and even prayers to the court that justice will be served
(Shanker, 1999). Consequently, some legal commentators (e.g., Logan, 1999; Long, 1995; Shanker, 1999; Sullivan,
1998) have warned of the potential damages of allowing courts so much latitude in what may constitute an appropriate
VIS.

Not only have the forms of VIS greatly expanded, but so too has the number of witnesses who testify in this manner.
In instances of particularly heinous crimes, the courts have increasingly supported the admission of numerous victim
impact statements at the sentencing hearings of certain high-profile defendants. For example, in United States v.
McVeigh (1997), the judge placed few limits or controls over the victim impact statements made at sentencing. For 2
days, jurors heard victim impact statements informing them of the pain and suffering experienced by those impacted
by the crime (Sullivan, 1998). In the accompanying trial of McVeigh's accomplice, Terry Nichols, the prosecution was
allowed to call 55 victim impact witnesses to testify during his sentencing hearing (Logan, 1999). Many of these
witnesses were "professional rescue workers who extricated innocents from the mass of rubble" (Logan, 1999, p. 22).
These indirect, "bystander victims" had no previous relationship to the direct victims and their families prior to the
bombing.

Much of the contention surrounding victim impact statements concerns the belief that testimony of this sort may serve
to prejudice the jury against the defendant. These prejudices may result from a variety of factors, most notably the
potential that testimony of this sort will: (a) inflame the passions of jurors and lead to capricious judgments that reflect
the anger of the jury rather than the blameworthiness of the defendant; (b) divert the attention of jurors from matters of
greater relevance to sentencing; and (c) produce arbitrary sentencing judgments that may vary as a function of
irrelevant factors such as the perceived social worth of the victim (see Myers & Greene, in press, for an extended
discussion of these perspectives).

The fears expressed by many legal scholars have not gone unnoticed by the U.S. Supreme Court. Many of these
concerns expressed by legal commentators reflect the very concerns outlined in earlier U.S. Supreme Court decisions
in Booth v. Maryland (1987) and South Carolina v. Gathers (1989). In Booth, the U.S. Supreme Court struck down a
lower court decision by ruling that victim impact statement testimony creates an impermissible risk that factors
unrelated to the blameworthiness of the defendant will be considered when determining if the defendant is to receive
the death penalty. As a result, victim impact statements were judged to violate the defendant's 8th Amendment rights
against cruel and unusual punishment. The U.S. Supreme Court reiterated this perspective in Gathers, and noted that
it matters little whether victim impact testimony comes from a relative or a prosecutor; its potential to prejudice the
sentencing process remains the same.

However, in Payne v. Tennessee (1991), the U.S. Supreme Court reversed its earlier direction in Booth and Gathers
and ruled that there is no per se bar on victim impact statements, as the potential for the testimony to bias juries must
be considered on a case-by-case basis. This decision opened the door for the increased introduction of victim impact
statements into sentencing hearings. With little guidance provided as to what trial courts should look for in deciding the
potential prejudicial effects of victim impact statements, social scientists have begun researching this issue to offer
some insight as to the potential harmful effects.

Although the research investigating the possible effects of victim impact statements on jury decision-making has been
scant, the few studies conducted thus far suggest that victim impact statements may indeed impact sentencing. Using
a jury simulation methodology, Luginbuhl and Burkhead (1995) presented subjects with either no victim impact
information or victim impact information given by a relative of the deceased. The testimony was based on the decision
in Booth v. Maryland. Here, jurors who read how the entire family was affected by the murder voted for the death
penalty 51% of the time while those jurors who did not read any victim impact information voted for the death penalty
only 20% of the time. The effect was more pronounced for subjects who initially reported being neutral towards or
moderately in favor of the death penalty than for those subjects who strongly favored capital punishment. Along these
same lines, Myers and Arbuthnot (1999) presented mock jurors with a video of a simulated murder trial in which the
introduction of victim impact evidence was varied between groups. For those who initially found the defendant guilty,
67% who viewed the victim impact statement voted for the death penalty while only 30% of those who were not
exposed to victim impact evidence voted for the death penalty.

A specific concern surrounding victim impact evidence is that it may elicit emotional responses in jurors. The relative of
the victim may likely display emotion when making a victim impact statement. The concern by some is that jurors who
are presented with witnesses who display emotions may become emotional themselves, and thus less able to carry

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out their task of making a reasoned judgment. The belief that an emotional juror is an ineffective juror is a common
one (Feigenson, 2000). As Logan (1999) has noted:

[VIS] is perhaps the most compelling evidence available to the state-highly emotional, frequently fearful testimony
coming directly from the hearts and mouths of the survivors left behind by the killings. And it arrives at the precise time
when the balance is at its most delicate and the stakes are highest-when jurors are poised to make a visceral decision
of whether the offender lives or dies-after the defendant has been convicted of the most horrendous crime possible.
(p. 177)

The concern that emotional testimony may lead to emotional responses by jurors is perhaps best articulated in Booth
v. Maryland (1987) where they note: "it is of vital importance to the defendant and to the community that any decision
to impose the death sentence be, and appear to be, based on reason rather than caprice of emotion" (p. 2536; see
also Gardner v. Florida, 1977).

To what extent does a VIS interfere with a juror's capacities to render reasoned and deliberate judgments? Myers,
Lynn, and Arbuthnot (2002) varied the level of harm reported, and the level of emotionality displayed by the witness,
while measuring the emotional impact the VIS had on mock jurors. The level of harm presented in the VIS had a
significant effect on sentencing judgments whereas witness demeanor did not. Moreover, although participants
reported experiencing higher levels of negative affect in response to victim impact statements, these emotional
responses remained independent of their sentencing judgments.

Not all investigations have concerned the potential for VIS to inflame the passions of jurors. Some studies have
focused on aspects such as the social value of the victim and how it may influence sentencing judgments. For
example, Greene, Koehring and Quiat (1998) varied the perceived respectability of the victims. They found that mock
jurors who read a victim impact statement where the victim was respectable rated the crime as more serious than
those presented with a less respectable victim. In addition to varying the personal qualities of the victim, Greene
(1999) also varied the deleterious effects of the crime on the victim's families. Victim impact statements which depicted
harm in physical, financial, and psychological ways led to more favorable impressions of the victim than statements
that addressed only some of these harms. Moreover, consistent with the findings of Greene and colleagues (1998),
the more respectable the victim, the greater the suffering the surviving relative was judged to have experienced.

Who May Make Victim Impact Statements?

While some studies (e.g., Greene, 1999; Greene et al., 1998) have addressed characteristics of the victim, no study
as of yet has addressed the issue of who makes the victim impact statement. In reality, each state decides for
themselves who fits the definition of "crime victim" and how this definition applies to the use of victim impact
statements in their jurisdiction. So, as Logan (1999) reports, an "enormous latitude exists relative to the scope of
persons authorized to speak to impact issues, and only a few jurisdictions have imposed limits on who is a victim" (p.
154). As a result, in a number of state and federal cases, emergency services personnel and other bystanders have
been defined by the trial court as victims and have been allowed to give victim impact testimony during sentencing. In
U.S. v. McVeigh (1997), eight paid emergency workers, police officers, or coroners testified about the graphic crime
scenes they encountered and the emotional toll the crime had taken on them at McVeigh's capital sentencing hearing.
On appeal to the U.S. Tenth Circuit court, it was concluded that the "sheer number of actual victims and the horrific
things done to them necessarily allows for the introduction of a greater amount of victim impact testimony in order for
the government to show the impact of the crime" (U.S. v. McVeigh, 1998, p. 1221).

Allowing bystanders to testify during sentencing hearings has been criticized on the grounds that it is inconsistent with
one of the chief goals of victim impact statements-that is, to give victims a voice and to "provide a glimpse" of the lives
taken by the defendant (Payne v. Tennessee, 1991). In addition, as the number of those allowed to speak increases,
so too do the chances that the jury may be prejudiced by the testimony. Sullivan (1998) criticizes the inclusion of
bystanders, remarking that this inclusion creates a greater imbalance in the sentencing hearing than is acceptable.
She says,

[A]t no point in the victims' rights movement has any one advocated for the need to grant bystanders a voice, thus
testimony admitted in McVeigh was completely unwarranted. Opening the door to testimony by professionals who
have chosen to routinely interact with crisis situations serves only to unduly prejudice a jury that has already heard the
testimony of the victims themselves. (p. 629)

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However, a related issue is not only whether bystander victim impact statements are unnecessary, but whether they
also may be more damaging to the defendant than victim impact statements that come from relatives of the victims.
Jurors may expect relatives to grieve and describe the victim's suffering in the most graphic terms. The desire to see
the defendant punished as severely as possible is a motivation that is particularly salient when observing a relative of
a deceased victim addressing the jury. Social psychological research on forewarning and persuasion suggests that
testimony that varies little from one's expectations may be far less persuasive than testimony that is relatively
unexpected-possibly because a forewarned message allows the perceiver time to develop counterarguments (Jacks &
Devine, 2000; Petty & Cacioppo, 1977), or possibly because individuals seek to exert their individual freedom in the
face of such appeals (Brehm, 1966; Petty & Cacioppo, 1979). When the relative of a deceased victim approaches the
stand, jurors may be relatively prepared for emotional testimony that informs jurors of the level of suffering they are
experiencing. It is this expectation that may reduce the likelihood that the testimony is persuasive. Thus, testimony by
a nonrelative may be more persuasive in this context because it is less expected than testimony by a relative of the
victim.

In addition, some sources are seen as more credible than others (Petty & Cacioppo, 1981). When juries attribute
statements made in court to trustworthy and knowledgeable sources, these sources are seen as credible and juries
are more likely to agree with the information provided (Petty & Cacioppo, 1981; Taylor, Peplar, & Sears, 1997) and
thus be more persuaded by it. A low vested interest in the sentencing outcome may signal to juries that the witness's
testimony should be given greater consideration in their decisionmaking (Birnhaum & Stegner, 1979). As a result,
victim impact evidence provided by a nonrelative (i.e., a bystander) should be more persuasive, as these victims will
be judged as more credible and more impartial than a witness who is related to the victim. Because the VIS is given in
the context of aggravating factors presented during the penalty phase of a capital trial, we would expect that the
possible outcome might be more punitive sentencing judgments.

Professional bystander victims (e.g., emergency workers and police officers), in particular, may produce the greatest
influence on sentencing judgments. Professional bystanders come from groups of people well-liked and/or respected
in the community (e.g., doctors, firefighters, emergency medical technicians or EMTs). This level of likeability may also
translate to greater persuasion with the jury (see Taylor et al., 1997). Moreover, these professionals hold positions of
authority in society and may be judged by jurors as having more expertise and knowledge (i.e., credibility), both of
which affect juror decision-making. For example, when a firefighter who has seen many fire victims throughout his or
her career describes the damage suffered by a particular victim as "the worst I have ever seen," jurors may judge the
level of harm experienced by the victim to be far greater than when such testimony comes from an individual with little
fire experience. Therefore, for a number of reasons, there is cause to believe that allowing bystanders, particularly
professional ones, to make a VIS may be highly influential and pose an even greater threat to defendants during
capital trial proceedings.

Therefore, the present study sought to investigate the relative impact of VIS by assigning participants to a no victim
impact evidence control condition, or one of three victim impact conditions consisting of either: (a) a close relative of
the victim, (b) an unrelated bystander (e.g., a coworker), or (c) an unrelated bystander who routinely experiences
trauma of this nature (e.g., emergency response personnel) on both mock jurors' judgments of recommended
sentence, as well as their attitudes toward the crime and the defendant. In addition to the prediction that the three
victim impact conditions would yield more punitive sentencing judgments than the no victim impact control condition, it
was further predicted that testimony from bystanders would lead to significantly more punitive sanctions against the
defendant than would testimony from a relative of the victim. Testimony from the professional bystander, because of
the greater respectability afforded their status, should lead to significantly more punitive sanctions than would
testimony from the nonprofessional bystander.

METHOD

Participants

One hundred and twenty members of the public were approached at a Los Angeles County public beachfront area
over a 3-day period and asked to voluntarily participate in a juror decision-making study. All participants were at least
18 years of age and legal U.S. citizens, ensuring each was jury-eligible. Sixty-four females (M = 31.9 years) and 56
males (M = 31.5 years) ranging in age from 18 to 68 agreed to participate.1 Seventy-three percent of the participants
listed themselves as Caucasian, 16% Hispanic, 6% Asian American, and 3% African American. The education level of
participants ranged from high school graduates/GED recipients to those completing graduate school. The majority of

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respondents (51%) reported having completed an undergraduate university degree.2

Design and Procedure

The 120 participants were randomly assigned to one of four conditions so that each condition had a total of 30
respondents. The conditions consisted of a control group who were presented with a murder trial that included no
victim impact statement, along with three experimental groups that consisted of various witnesses giving victim impact
statements.

The 120 participants were randomly assigned to one of four conditions so that each condition had a total of 30
respondents. The conditions consisted of a control group who were presented with a murder trial that included no
victim impact statement, along with three experimental groups that consisted of various witnesses giving victim impact
statements.

Stimulus Material

Criminal Case Summary. The fictional case of People v. Jones was outlined for all participants in a one-page
summary. Mock jurors were directed to only consider the evidence for deciding the punishment of Mr. Jones as he had
already been convicted based on the evidence of first-degree murder. The summary indicated that, during the trial, the
following facts were revealed to the jury: Mr. Jones, a disgruntled and recently fired employee of the Sucor
Corporation, planted a bomb at the company's loading dock to get revenge on his supervisor firing him. Witnesses
saw Mr. Jones running from the area just moments before the explosion. Jones later confessed to the crime. Police
apprehended the defendant in the vicinity of the corporation after the blast, and subsequent investigation turned up
bomb-making materials at his trailer and a proof of purchase of these materials from a local hardware store. At the
trial, it was revealed that a fellow loading dock employee of Mr. Jones was killed in the blast, and five other Sucor
employees were seriously injured, but survived the explosion.

Victim Impact Evidence. All participants read the judge's instructions regarding sentencing in which they were directed
to consider both the mitigating and aggravating factors prior to deciding an appropriate sanction for the defendant. For
those in one of the three experimental conditions, the victim impact statements provided in all three victim impact
conditions contained the same information. The statement, independent of the victim's identity, detailed where the
victim was at the time of the explosion and how they came to arrive at the scene. Each victim was reportedly the first
person on the scene and the person who discovered the deceased's badly damaged body. Extensive detail was given
as to the condition of the deceased's body upon discovery, including missing limbs as a result of the blast, and having
been impaled through the neck by a large metal shard. The victim impact statement addressed the emotional
experience of witnessing such an event. The statement depicted the crime as an act of cruelty and devastating to all
those involved and discredited the defendant's plea for mercy and sympathy.

Posttrial Questionnaire. Each subject, regardless of condition, was asked to indicate which punishment they would
vote to impose on the defendant. They were given two options to choose: (a) life in prison with no possibility of parole
and, (b) death by lethal injection. Additionally, respondents were asked to respond to the statement "emergency
service professional (e.g., police, firefighters, EMTs) are affected by the trauma they witness" by indicating whether
they agreed strongly with the statement (scored 7) or whether they disagreed strongly with the statement (scored 1).

In order to determine whether the sample was consistent with those jurors who would be death-qualified, we asked
the subjects to respond to a forced-choice dichotomous item that was designed to address death penalty scruples
consistent with Witherspoon v. Illinois (1968). This item was adopted from Cowan and colleagues (1984).

Victim Impact Questions. Each subject in the three victim impact conditions was asked to answer additional questions
relating to the victim impact evidence to which they were exposed, including judging victim suffering, honesty, and how
emotionally moving the testimony was. For example, respondents in the family victim impact condition were asked to
rate how much suffering they felt the family members experienced on a 7-point scale with options ranging from none
(scored 1) to a great deal (scored 7). Respondents in the nonprofessional bystander condition were asked to rate the
suffering of the victim's coworker with the same scale, while respondents in the professional bystander condition rated
the suffering/harm experienced by the responding firefighter. Those assigned to the relative victim impact condition
were also asked "in comparison to other family members of murder victims, how much suffering is this family
experiencing?" Again a 1 to 7 scale was offered with 1 indicating much less, and 7 indicating much more. Participants
in all three impact conditions were then asked how honest they thought the victim impact witness was in describing

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their experiences. Each condition was given an identical 7-point rating scale, with options ranging from completely
dishonest (scored 1) to completely honest (scored 7). Each participant in the victim impact conditions was then asked
how emotionally moving the victim impact testimony was on a 7-point scale ranging from not at all (scored 1) to
extremely (scored 7).

RESULTS

Sentencing

All participants reported their death penalty beliefs by indicating their choice between two alternatives: "I would never
impose the death penalty on a defendant" or "I would consider electing the death penalty as a criminal sanction." Of
the sample of 120 participants, only 11 (9.2%) reported they would never elect capital punishment as a sentence
under any circumstances. These respondents were removed from subsequent sentencing analyses. That is, only the
sentencing decisions of participants who were death-qualified (n = 109) were retained for analysis. A chi-square test of
independence revealed a significant association among sentencing options and the four conditions, χ^sup 2^ (3) =
12.64, p < .05.

Overall, the majority of the respondents chose life in prison. Of the 109 participants surveyed, 62 (56.9%) elected life
in prison without parole for the defendant. The proportion of mock jurors who voted for the death penalty varied across
conditions. In both the control condition and family victim impact condition, approximately 35% of participants voted for
the death penalty. In the professional bystander victim impact condition, 31% of participants voted for the death
penalty. However, in the nonprofessional bystander victim impact condition, 73% of respondents imposed a death
sentence. Of the total participants who voted for the death penalty across the four conditions, over 40% came from the
participants presented with a victim impact statement given by a coworker of the deceased victim (i.e.,
nonprofessional bystander condition). 4 The sentencing judgments across the three victim impact conditions are
presented in Table 1.

Perceptions of Victim Suffering

Participants in the three victim impact groups were asked to rate how much suffering the witnesses giving the victim
impact statement (i.e., relative, nonprofessional bystander, professional bystander) experienced. A one-way analysis
of variance indicated significant differences in ratings of victim suffering across the three victim impact groups, F (2,
78) = 17.29, p < .001. Post-hoc analysis (Fisher's LSD) revealed the family victim impact condition was significantly
higher than both the nonprofessional bystander and professional bystander victim impact conditions. The two
bystander victim impact conditions also differed significantly from one another (p < .05). The means and standard
deviations for suffering judgments across the victim impact conditions are presented in Table 1.

Emotionality of Testimony

In order to test the possibility that victim impact statements coming from bystanders (professional or nonprofessional)
may be less impactful on sentencing judgments because they fail to elicit any emotional responses from participants,
we felt it was important to measure the emotional reactions of participants to the various testimonies. Participants in
the three victim impact conditions rated how emotionally moving they found the victim impact testimony to be. A
one-way analysis of variance revealed no significant differences between the three groups, F (2, 78) = .60, p > .05.
Nevertheless, perceptions of how emotionally moving they found the testimony were related to how much suffering
they believed the victim experienced. A significant positive relationship was found between judgments of how
emotionally moving they found the testimony and the amount of suffering they believed the victim experienced (r = .40,
p < .01).

Credibility of Testimony

In order to assess whether VIS may be more influential as a result of differences in perceived credibility of the
individual offering testimony, a one-way analysis of variance was conducted to compare the three victim impact
conditions on ratings of witness honesty. No significant differences were found, F (2, 78) = .25, p > .05. However, while
credibility ratings did not differ among the groups, it nevertheless appears to be an important factor in how emotionally
moving the testimony was judged to be. A Pearson productmoment correlation coefficient revealed a significant
positive relation between participants' judgments of victim honesty and their ratings of how moving the testimony was
(r = .54, p < .01).

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Perceptions of Professional Bystander Victimization

Recall that participants in all conditions were asked to indicate, on a 7-point scale, the degree to which they agreed
with the notion that emergency personnel are affected by the trauma they witness. While there was no significant
difference in ratings across the four conditions (F < 1), participants, as a whole, saw emergency personnel as suffering
during traumatic experiences. Less than 3% indicated they strongly disagreed with the notion that emergency
personnel are affected by the trauma they witness, and less than 17% gave a rating of 3 or less to this item (indicating
either some or substantial disagreement). Therefore, more than 83% indicated either some or substantial agreement
with the notion that emergency personnel suffer during traumatic experiences.

DISCUSSION

Victim Impact Statements and Their Effect on Sentencing

With the exception of the VIS coming from a nonprofessional bystander, there was little evidence to suggest that
victim impact statements had an appreciable effect on sentencing judgments. This finding is inconsistent with past
studies (e.g., Luginbuhl & Burkhead, 1995; Myers & Arbuthnot, 1999; Myers et al., 2002) that found a significant effect
of VIS on sentencing judgments. There are a number of possible explanations for this discrepancy, and they relate to
the brutality of the crime and perceptions of the emotional harm associated with a tragedy.

In past studies on this phenomenon (e.g., Myers & Arbuthnot, 1999; Myers et al., 2002), the cases involved a murder
where the victim impact statement consists largely of the surviving relatives expressing both the emotional toll, as well
as the more practical losses associated with losing a spouse (e.g., financial harm). As was noted by Myers and
colleagues (2002), the real effect of VIS may lie in its ability to describe a level of loss and suffering which exceeds
that which might normally be expected under the circumstances. If this is true, particularly brutal acts may give rise to
higher expectations of suffering- and the impact of VIS may therefore be minimized. Because the present study
involved a particularly brutal act (an explosion), the level of suffering expressed in each of the victim impact
statements may have been expected by mock jurors. This reduced the level of influence the VIS had on their
perceptions of the crime as well as the defendant. Therefore, because the level of suffering by the witness did not
exceed what would normally be expected in a crime of this magnitude, the result was a reduced effect with regard to
sentencing judgments.

However, not all groups were immune to the impact of VIS on sentencing judgments. Significantly more death penalty
sentences were rendered in the nonprofessional bystander victim condition than in any other condition. Feigenson
(2000) argues that for the generation of sympathy, a certain degree of unexpectedness concerning the harm is key.
When considering the unexpectedness component of suffering, the coworker (nonprofessional bystander) could also
be interpreted as the most unexpected or unanticipated victim in this scenario (relative to the family member and
professional bystander). In contrast, both the deceased's wife as well as the professional bystander may have been
expected to experience a greater deal of suffering-therefore, the impact of VIS on these participants was minimal.
Indeed, the present study was conducted slightly more than 6 months after the terrorist attacks on September 11,
2001. It may be that memories of the suffering experienced by the emergency rescue personnel during that tragedy
was still fresh in their minds.5 In contrast, the suffering experienced by nonprofessional bystanders may have been
somewhat unexpected, and this led to a greater impact on sentencing. Certainly, the hypothesis that harm expressed
in victim impact statements must exceed expectations represents conjecture and further investigation is warranted.

In the present study, the brevity associated with the scenarios may have hampered our ability to elicit empathy and
impact juror decision-making. Although some (e.g., Bornstein, 1998) have questioned the importance of length of trial
information and realism of trial stimuli (e.g., written vignettes versus videotaped trials), it may be that these factors
magnify in importance in situations where individuals are asked to imagine themselves in another's situation. Here,
factors that may aid in the ability to try to take the perspective of others (e.g., realism of the stimuli) may be more
critical than in jury simulation studies where perspective-taking is less important to judgments. Thus, the victim impact
statements may have had greater impact on jurors with more realistic stimuli, such as those used in earlier studies
(Myers & Arbuthnot, 1999; Myers et al., 2002).

The true impact of VIS may occur as a result of the combination of multiple types as well as sources of information at
a jury's disposal. In our study (and in past studies), the impact of VIS was assessed using only one testimony by a
victim impact witness. Moreover, our present findings examined who makes a victim impact statement, not the content
of that statement. While previous studies have found evidence that the level of harm contained in the victim impact

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statement may be central to juror sentencing judgments (Myers et al., 2002), so too may be factors related to the
qualities of the victim (Greene, 1999; Greene et al., 1998). Because these factors were not the focus of the study, we
did not examine their impact. However, there are undoubtedly numerous factors related to not only the content of the
VIS, but other important factors such as the degree of mitigating information that could impact sentencing judgments.
In the future, researchers might seek to examine these elements surrounding both the content of statements,
variations in mitigating evidence, and the combined effects of multiple witnesses.

Do Suffering Judgments Relate to Final Sentencing Outcomes?

As has been traditionally hypothesized in victim impact research, the suffering of crime victims relates to a greater
willingness to punish defendants for their acts (e.g., Myers et al., 2002). In this study, victim suffering ratings varied
according to the identity of the victim. However, this difference in suffering ratings did not translate into a greater
willingness to punish. Participants ranked the family member victim as suffering the most and the professional
bystander the least. This should have translated into significantly more death penalty votes in the relative victim
impact condition when compared to any of the other conditions. Thus, it may be that victim impact evidence does not
impact juror sentencing judgments as a function of perceived victim suffering, as originally thought, but through other
mechanisms that have not yet been clarified. The hypothesized link between judgments about a victim's suffering and
final sentencing judgments may be questionable.

The importance of VIS that depict exceptional suffering has implications for criminal sentencing policy. If prosecutors
continue to introduce victims who have suffered extraordinarily and represent only what has been termed the
"exceptional" crime victim (Erez & Rogers, 1999), sentencing judgments may be disproportionately punitive in well
publicized or particularly heinous crimes. This disproportionality undermines the capital sentencing process and is one
of the well-publicized arguments against allowing victim impact evidence into the courtroom (e.g., see Payne's
dissenting opinion by Justice Stevens, 1991). Information that portrays crime victims as exceptional or unusual may
serve to elicit sentencing judgments from jurors that bear little resemblance to other sentencing judgments for
seemingly identical crimes.



Victim Impact Statements and Credibility

We also asserted that mock jurors exposed to bystander victim impact evidence would elect more punitive judgments
when compared to the sentences given by participants exposed to family victim impact evidence. The available
literature regarding credibility (see Peplar et al., 1997) informs us that should bystander victims be judged by mock
jurors as more neutral and having less vested interests in the final sentencing outcome, jurors will be more likely
persuaded by that victim's statement and will find the victim to be a more credible witness. As a result, bystander VIS
testimony would have a greater impact on final juror sentencing. In the present study, participants did not rate any of
the three victims as significantly more credible than another. Thus, the assumption that differences in the identity
among the three victims would translate into different judgments regarding credibility was not supported. We are left to
conclude that the identity of the victim giving the VIS at a sentencing hearing may matter little when credibility is the
outcome measure of interest.

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Victim Impact Statements as Inflammatory and Prejudicial

The available legal and psychological literature on victim impact statements often criticize the use of victim impact
statements in court on the grounds that they are inflammatory to jury decision making, and unfairly damaging towards
the defendant (Greenberg, 2000; Logan, 1999; Sullivan, 1999). Past studies addressing the effect of victim impact
statements on sentencing decisions provided only limited support for these concerns, but had found that, indeed,
victim impact evidence did lead to more punitive sentencing (see Luginbuhl & Burkhead, 1995; Myers & Arbuthnot,
1999; Myers et al., 2002). Yet, it is not altogether clear that VIS impacts sentencing judgments because they are
inflammatory (e.g., see Myers et al., 2002; Myers & Greene, in press). That is, if we define inflammatory judgments as
those that arise from strong emotions and provide little room for rational or reasoned judgments, then the manner in
which VIS influence judgments is less than clear. The present study found no significant differences among
participants in the three victim impact conditions in how emotionally moving they found the testimonies. Thus, there is
little evidence from our present findings that would suggest bystander victim impact statements are potentially more
inflammatory than more typical victim impact statements coming from a relative of the victim.

Our findings speak directly to concerns raised by critics of the proliferation of victim impact statements given by
nonfamily members in courts across the country. Sullivan (1998) clearly feels that "opening the door to testimony by
professionals who have chosen to routinely interact with crisis situations serves to only prejudice the jury" (p. 629),
while Logan (1999) comments that "only a few jurisdictions have imposed limits on who is a victim" (p. 154). However,
there are two sides to this issue. Given that defendants may call a host of professionals to testify concerning mitigating
factors, one might argue that, in the interests of fairness, professionals should not be prohibited from testifying about
aggravating factors.6 The few states that have chosen to bar bystanders from presenting VIS (e.g., New Jersey,
Maryland), have done so with little empirical evidence to support the belief that bystander victims have any significant
impact on the proceedings. The inconsistency in our present findings suggests an obvious need for follow-up research
in this area. Nevertheless, the data here suggest there is merit to the belief that who provides victim impact testimony
may matter to jurors.

Much of the debate surrounding the inclusion of victim impact statements during capital sentencing proceedings
undoubtedly reflects differences in values, and cannot be resolved empirically. Who may legitimately address the jury
as a victim of the defendant's crime? Our findings suggest that the general public regards bystanders as victims as
well. Whereas some (e.g., Logan, 1999; Sullivan, 1998) question the relevance of hearing from those who choose to
respond to crisis situations as part of their profession (e.g., EMTs), there are those who note the rights of victims have
for years been sacrificed in the interests of protecting the defendant's rights (see Henderson, 1985, for a discussion of
the Victims' Rights Movement). The present findings suggest bystander testimony may be given equal weight (and in
the case of nonprofessional bystanders in the present context, even greater weight) than victim impact testimony
coming from close relatives of the victim.

CONCLUDING STATEMENT

In conclusion, the impact of VIS on the capital sentencing process is an important issue that clearly merits
investigation. One issue that has concerned legal commentators is the question of who should be allowed to testify
during sentencing proceedings. Certainly, by expanding the scope of who testifies, we may also open the door to a
related problem-that is, how many shall testify? While the present study can say little about the impact of the number
of witnesses on sentencing judgments, it does indicate that the public likely regards witnesses who have relatively
distant associations with the decedent no less a victim of the tragedy. Although our findings show that they may
perceive bystander victims as suffering less than those who are close relatives of the victim, they have no less an
impact on final sentencing judgments.

[Footnote]
NOTES
1. Data collection took place from May 25 to May 27, 2002. The area was chosen due to its close proximity to the researchers,
and because of its ready availability of participants (post-September 11 security measures made collecting data in airports and
bus stations difficult). The decision to approach participants was based on their apparent level of availability (e.g., those
listening to headphones or actively engaged in some activity were not disturbed). Experimenters purposely attempted to invite
a relatively equal number of males and females to take part. Of the 155 invited to participate, 10 participants did not complete
their questionnaires, 15 questionnaires were removed from analyses because respondents were not jury-eligible, and 10
individuals refused to participate in the study.

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2. This sample was compared to data across California from the 2000 census. Our sample was comparable in may respects
as the mean age for all Californians is 33.3 years, and the racial breakdown for California is: 59.5% Caucasian, 21.6%
Hispanic, 11.2% Asian American, and 6.7% African American. Our sample was substantially more educated from the rest of
the state as 30% have a college education compared to our sample where 52% have a college education.
3. This procedure of asking respondents to engage in only penalty-phase judgments and not participate in the guilt phase of
the trial was used to reduce the length of task to which respondents would be asked to undertake. This procedure has been
used previously by Luginbuhl and Burkhead (1995), Greene (1999), and Greene, Koehring, and Quiat (1998).
4. A logistic regression conducted on predictor's age, gender, race, and education level found that none of the variables
significantly predicted sentencing judgments (all regression coefficients were nonsignificant). Bivariate correlations revealed
that all of these predictors accounted for little variability in sentencing (r2 values ranged from .0006 to .01). These findings are
consistent with prior studies on victim impact evidence that found little evidence for the importance of demographic factors in
predicting sentencing judgments (e.g., Myers et al., 2002).
5. We thank an anonymous reviewer for this point.
6. We thank an anonymous reviewer for this point.

[Reference]
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of Personality and Social Psychology, 37, 48-74.
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and on the quality of deliberation. Law and Human Behavior, 8, 53-79.
Engle, M. (2000). Due process limitations on victim impact evidence. Capital Defense Journal, 13, 55.
Erez, E., & Rogers, L. (1999). Victim impact statements and sentencing outcomes and processes: The perspective of legal
professionals. British Journal of Criminology, 39(2), 216-239.
Feigenson, N. (2000). Legal blame: How jurors think about accidents. Washington, DC: American Psychological Association.
Flamm, J. D. (1999). Due process on the "uncharted sea of irrelevance": Limiting the presence of victim impact evidence at
capital sentencing after Payne v. Tennessee. Washington and Lee Law Review, 56(1), 295-325.
Greene, E. (1999). The many guises of victim impact evidence and effects on jurors' judgments. Psychology, Crime and Law,
5, 331-348.
Greene, E., Koehring, H., & Quiat, M. (1998). Victim impact evidence in capital cases: Does the victim's character matter?
Journal of Applied Social Psychology, 28, 145-156.
Greenberg, J. D. (2000). Is Payne defensible?: The constitutionality of admitting victim-impact evidence at capital sentencing
hearings. Indiana Law Journal, 75, 1349.
Henderson, L. N. (1985). The wrongs of victim's rights. Stanford Law Review, 37, 937-985.
Jacks, J. Z., & Devine, P. G. (2000). Attitude importance, forewarning of message content, and resistance to persuasion.
Basic and Applied Social Psychology, 22, 19-30.
Logan, W. (1999). Through the past darkly; A survey of the uses and abuses of Victim Impact Evidence in capital trials.
Arizona Law Review, 41, 143.
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of Michigan Journal of Law Reform, 33, 1.
Long, K. (1995). Community input at sentencing: Victim's right or victim's revenge? Boston University Law Review, 75,
187-229.
Luginbuhl, J., & Burkhead, M. (1995). Victim impact evidence in a capital trial: Encouraging votes for death. American Journal
of Criminal Justice, 20, 1-16.
Myers, B., & Arbuthnot, J. (1999). The effect of victim impact evidence on the verdicts and sentencing judgments of mock
jurors. Journal of Offender Rehabilitation, 29, 95-112.
Myers, B., Lynn, S. J., & Arbuthnot, J. (2002). Victim impact evidence and juror judgments: The effects of harm information
and witness demeanor. Journal of Applied Social Psychology, 32, 2393-2412.
Myers, B., & Greene, E. (in press). The prejudicial nature of victim impact statements: Implications for capital sentencing
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Brown.
Petty, R. E., & Cacioppo, J. T. (1979). Effects of forewarning of persuasive intent and involvement on cognitive responses and
persuasion. Personality and Social Psychology Bulletin, 5, 173-176.

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Petty, R. E., & Cacioppo, J. T. (1977). Forewarning, cognitive responding, and resistance to persuasion. Journal of Personality
and Social Psychology, 35, 645-655.
Shanker, N. (1999). Getting a grip on Payne and restricting the influence of victim impact statements in capital sentencing:
The Timothy McVeigh case and various state approaches compared. Hastings Constitutional Law Quarterly, 26, 711-740.
South Carolina v. Gathers, 490 U.S. 805 (1989).
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hearings from passion and prejudice. Fordham Urban Law Review Journal, 25, 601.
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[Author Affiliation]
Mila Green McGowan
Alliant International University
Fresno, CA
Bryan Myers
University of North Carolina at Wilmington

[Author Affiliation]
Acknowledgment. The authors would like to thank Shoko Kokubun, MA, for her assistance with the data collection.
Offprints. Requests for offprints should be directed to Bryan Myers, PhD, Department of Psychology, University of North
Carolina at Wilmington, 601 South College Rd., Wilmington, NC 28403. E-mail: myersb@uncw.edu

[Appendix]
APPENDIX-TRIAL SCENARIO
People v. Jones
We are asking you to act as jurors and decide on an appropriate punishment for Mr. Jones. You are not asked to decide on
the guilt or innocence of Mr. Jones because a 12-person jury previously voted unanimously to convict Mr. Jones of 1st-degree
murder. We want you to now decide Mr. Jones's punishment.
Here are the facts of the case against Mr. Jones:
1. Mr. Jones was employed by the Sucor Corporation on the loading dock for 10 months. After repeated disciplinary actions
and a poor performance evaluation, Mr. Jones was fired by the loading dock's head supervisor, Mr. Edwards.
2. Mr. Jones admitted to the police that he devised a plan to plant a bomb at the Sucor loading dock. He asserted he wanted
to punish the Sucor loading dock supervisor for firing him by burning the dock. Mr. Jones's girlfriend testified in court that Mr.
Jones had ranted and raved, all weekend after his termination, about his "vengeance" and "payback" towards the Sucor
Corporation.
3. Very early the following Monday, Mr. Jones was seen by the plant security guard returning to the plant with a large box
under his arm. Another Sucor employee arriving at work saw Mr. Jones running away from the Sucor building about 2 minutes
before the explosion occurred.
4. Police apprehended Mr. Jones about a mile from the crime scene on foot less than 10 minutes after the blast.
5. Mr. Sandrino was found dead by his wife and another Sucor employee, Mr. Gage, on the loading dock after the explosion.
Mr. Sandrino had been ripped apart by the blast and was barely recognizable. Five other people working at the dock were also
critically injured, and two of them remained hospitalized for nearly 6 months afterwards with severe burns. Four of the five
have been unable to return to work.
6. Investigators concluded a homemade explosive device, placed inside an empty box on the loading dock, was the cause of
the explosion.
7. The evidence showed Mr. Jones purchased some rudimentary bomb-making materials from a local hardware store on
Sunday morning, one day prior to the blast. A hand-scrawled will was found at Mr. Jones's trailer, along with some excess
materials matching those found at the Sucor loading dock.
After hearing the evidence, the jury took 3 1/2 hours to deliberate and returned with a unanimous verdict to convict Mr. Jones
of 1st-degree murder.
Sentencing Phase
The Judge. "Your duty as jurors, is to decide the appropriate punishment for Mr. Jones. The possible options for a conviction
of 1st degree murder in California are: death by lethal injection or (2) life in prison without the possibility of parole.
To decide the appropriate penalty for Mr. Jones, you must weigh the aggravating and mitigating circumstances surrounding
the crime. Aggravating circumstances (those that argue for the death penalty) add to the severity or seriousness of the
offense. Mitigating circumstances (those that argue for a life in prison sentence) are any facts or information that does not
excuse the crime but, in all fairness and a sense of mercy, can be considered to reduce the degree of blame upon Mr. Jones.
If the aggravating circumstances outweigh the mitigating circumstances, you must return a sentence of death. You are free to
consider whatever information you deem relevant to make this judgment."

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Aggravating Circumstances
Prosecutor. Ladies and gentlemen of the jury, you alone can decide the fate of Mr. Jones. His murder of Mr. Sandrino and the
serious injuries he caused to the five others, have lead to the widowing of Mrs. Sandrino, and have left the Sandrino family
devastated. The friendly and close working environment at Sucor Corporation has also been destroyed. Mr. Jones was angry
at being fired and he had a score to settle with his company. He purposely chose the most dangerous and destructive way to
get back at his employer. He cared nothing for the innocent lives he would destroy-the truth is he didn't care. This defendant is
surely deserving of the harshest punishment.
Family Victim Impact Statement
Prosecutor. I want you now to hear the testimony of Mrs. Sandrino who has to go through life without her husband. A women,
who has to live with the pain of knowing that her husband died needlessly and in such a heinous and shocking way. She also
was the first person to find Mr. Sandrino after the explosion as she too works at the Sucor Corporation.
Mrs. Sandrino. I work in the accounting office of the Sucor Corporation. At the time the explosion occurred, I was in the lunch
room just down the hall having my morning coffee. After the explosion, I ran towards the loading dock because I knew my
husband, Anthony, was there doing early morning inventory. I was one of the first people in the room after the explosion. I saw
two workers lying on the floor and they had burns all over their backs and arms. I could see the flesh had already peeled off
their backs and they were bleeding. Then, I went a little farther into the loading area and I saw Anthony. My heart sank. I knew
instantly he was dead. The entire left side of his body had been blown off. He was missing an arm and a leg. That image of his
lifeless corpse is still burned into my brain. His eyes were open, staring up at me. There was hardly any blood, just charred
remains, parts of his arm and leg lying a few feet from him. There was a large piece of metal sticking out of his neck. I just
don't think you can experience something like that and not be changed somehow. It's a vision I will live with for the rest of my
life.
What people need to understand is this act of cruelty hasn't just affected Anthony or me. Anyone who witnessed this will never
be the same. Dozens and dozens of lives have been devastated by this heartless act. The defendant wants you to know he is
a real person and deserving of sympathy. Where was his sympathy and mercy on that day at the plant? I'm here to tell you
that everyone who witnessed this and everyone who loved Anthony are people, too. All of us have to live with this horror the
rest of our lives.
Coworker's Victim Impact Statement
Prosecutor. I want you now to hear the testimony of Mr. Gage, a new employee of the Sucor Corporation. He was one of the
first two people to find Mr. Sandrino's body, along with the latter's wife. He witnessed the aftermath of the explosion.
Mr. Gage. I am a traveling salesperson for the Sucor Corporation. At the time the explosion occurred, I was in the front office
just around the corner from the dock. After the explosion, I ran towards the loading dock because I thought I'd seen people in
there minutes earlier. I was one of the first people in the room after the explosion. I saw two workers lying on the floor and they
had burns all over their backs and arms. I could see the flesh had already peeled off their backs and they were bleeding.
Then, I went a little farther into the loading area and I saw a man's body. My heart sank. I knew instantly he was dead. The
entire left side of his body had been blown off. He was missing an arm and a leg. That image of his lifeless corpse is still
burned into my brain. His eyes were open, staring up at me. There was hardly any blood, just charred remains, parts of his
arm and leg lying a few feet from him. There was a large piece of metal sticking out of his neck. I just don't think you can
witness something like that a not be changed somehow. It's a vision I will live with for the rest of my life.
Mr. Gage. I am a traveling salesperson for the Sucor Corporation. At the time the explosion occurred, I was in the front office
just around the corner from the dock. After the explosion, I ran towards the loading dock because I thought I'd seen people in
there minutes earlier. I was one of the first people in the room after the explosion. I saw two workers lying on the floor and they
had burns all over their backs and arms. I could see the flesh had already peeled off their backs and they were bleeding.
Then, I went a little farther into the loading area and I saw a man's body. My heart sank. I knew instantly he was dead. The
entire left side of his body had been blown off. He was missing an arm and a leg. That image of his lifeless corpse is still
burned into my brain. His eyes were open, staring up at me. There was hardly any blood, just charred remains, parts of his
arm and leg lying a few feet from him. There was a large piece of metal sticking out of his neck. I just don't think you can
witness something like that a not be changed somehow. It's a vision I will live with for the rest of my life.
Fire-Fighter Victim Impact Statement
Prosecutor. I want you now to hear the testimony of Fire Captain, Ron Gillam, one of our community's brave men who risk
their lives every day to fight fires. He was in charge of the firefighting team that arrived at the explosion site just minutes after
the blast. He was the first emergency personnel to discover the victim's burned body.
Mr. Gillam. I am a 15-year veteran of the James' Bay Fire Department. Our unit arrived on the scene at the Sucor Corporation
only a few minutes after getting the call about an explosion. Upon arrival, I ran towards the loading dock because I saw smoke
and flames billowing out of the loading bays. I was one of the first emergency personnel in the area after the explosion. I saw
two workers lying on the floor and they had burns all over their backs and arms. I could see the flesh had already peeled off
their backs and they were bleeding. Then, I went a little farther into the loading area and I saw a man's body. My heart sank. I
knew instantly he was dead. The entire left side of the man's body had been blown off. He was missing an arm and a leg. That
image of his lifeless corpse is still burned into my brain. His eyes were open, staring up at me. There was hardly any blood,
just charred remains, parts of his arm and leg lying a few feet from him. There was a large piece of metal sticking out of his
neck. I just don't think you can witness something like that a not be changed somehow. It's a vision I will live with for the rest of
my life.

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What people need to understand is this act of cruelty hasn't just affected Mr. Sandrino. Anyone who witnessed this will never
be the same. Dozens and dozens of lives have been devastated by this heartless act. The defendant wants you to know he is
a real person and deserving of sympathy. Where was his sympathy and mercy on that day at the plant? I'm here to tell you
that everyone who experienced this are people, too. All of us have to live with this horror the rest of our lives.
Mitigating Circumstances
Defense Attorney. Ladies and gentlemen, you have a very important decision to make. A man's life hangs in the balance. Mr.
Jones only intended to start a fire in the loading dock of the Sucor Corporation. He didn't think anyone was there. Neither did
Mr. Jones think his homemade bomb would really do so much damage; he has no experience with explosives and
weapons-he doesn't even own a gun. But instead, things got out of control and now, one man is dead. Mr. Jones is sorry for
that but reminds you he never intended to kill, or even harm anyone. He has never harmed anyone before this and has no
serious criminal record. Yes, he should be punished and he knows this. But, he does not deserve to die. Ladies and
gentlemen, show some compassion.

References

References (34)

Indexing (document details)
Subjects: Capital punishment, Trials, Testimony, Studies, Research methodology, Prejudice, Juries,
Evidence, Crime, Court hearings & proceedings, Accomplices, Decision making
Author(s): Mila Green McGowan, Bryan Myers
Author Affiliation: Mila Green McGowan
Alliant International University
Fresno, CA
Bryan Myers
University of North Carolina at Wilmington

Acknowledgment. The authors would like to thank Shoko Kokubun, MA, for her assistance with the
data collection.
Offprints. Requests for offprints should be directed to Bryan Myers, PhD, Department of
Psychology, University of North Carolina at Wilmington, 601 South College Rd., Wilmington, NC
28403. E-mail: myersb@uncw.edu
Document types: Feature
Document features: Tables, References
Publication title: Violence and Victims. New York: Jun 2004. Vol. 19, Iss. 3; pg. 357, 18 pgs
Source type: Periodical
ISSN: 08866708
ProQuest document ID: 1667040791
Text Word Count 9909
Document URL: http://proquest.umi.com/pqdweb?did=1667040791&sid=3&Fmt=3&cl ientId=48948&RQT=309&
VName=PQD

Copyright © 2009 ProQuest LLC. All rights reserved.

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