Bell Curve The Law Talking Guy Raised by Republicans U.S. West
Well, he's kind of had it in for me ever since I accidentally ran over his dog. Actually, replace "accidentally" with "repeatedly," and replace "dog" with "son."

Monday, May 08, 2006

Victim Impact

One of the issues that has been in and out of the news for a while has been the issue of victim impact statements. Most recently, this has been in the news because of the Zacarias Moussaoui case. Victims and their families spend days airing their grief in the sentencing phase of the trial. Currently,sentencing is set to start in the case of the owner of the Rhode Island Night Club that caught on fire and caused the death of 100 and injured 200 back in 2003. The judge has told victims' families that they are not allowed to bring pictures of their loved ones to court and that they must limit their statements to no more than 5 minutes.

The role of victim impact statements has been subject of a contentious discussion among legal scholars. I would be interested in getting LTG's take on the matter.

Myself, I don't like victim impact statements. I believe that the courts are for justice to the law. When a crime is committed, the social contract of the whole of society has been breached and thus, we are all victims. This is why at criminal law we have prosecutors for the STATE who charge defendants, not private prosecutors as we do in tort claims. Victim impact statements seem to turn our criminal justice system (as opposed to the tort system) into an means of revenge rather than justice.

Having sobbing victims on the witness stand seems to harm the dignity and purpose of a court of law.


Dr. Strangelove said...

It is my understanding that the convicted criminal has the right to play on the jury's sympathies: to tell his own sob story of how he was abused as a child, to explain how much the crime has hurt him and how deeply remorseful he now is... But without victim impact statements, those victims who lack specific knowledge of the crime--e.g., the families of the dead--have no reciprocal right to speak during the sentencing or any other part of the trial.

Victim impact statements come in during sentencing, when we are no longer dealing with the rights of the accused but of the convicted. During the trial, of course I agree with USWest that the state alone should charge the defendant--but in the sentencing phase, I believe the victims have a special right to speak. To paraphrase "The Simpsons": in a sense, we may all be the victims--but in another more accurate sense, those who were directly harmed or lost their loved ones are the victims.

Even if it's only for five minutes, and without pictures, it may yet be cathartic, even healing, for those victims to have a forum that matters in which they can publicly speak of their pain.

Anonymous said...

In Germany they have what is called "Nebenklage" or "side complaint" (Russia too) where the victim of a crime is a full party to the proceedings with the right to make argument and examine witnesses. It is a recognition that the offense is not just to "the King's peace" but to the victim. There are pluses and minuses to this system, but one plus is that it permits the state's representative to be more objective, since she is not bearing the weight of representing both victim and state. 

// posted by LTG

Anonymous said...

I'm not sure how much weight should be given to victim impact statements. If you run over a cantakerous old coot on purpose, he's just as dead as a cute little kid you ran over on purpose.

One argument in favor of the victim impact statements is how powerless the family may feel during the process. The survivors don't generally get to decide whether the prosecution goes for murder or manslaughter, and a criminal defendant is almost always an indigent defendant. It's a rare child/ widow/widower who can wring any money out of a murderer in a civil lawsuit for wrongful death.

Listening to the news coverage of the Zacarias Moussaoui case, I was disheartened to hear that the snippets that got read most often were of the "I hope you burn in Hell" variety. Is there any place to read the complete statements? I bet the statements are a little more nuanced.

I found Matthew Shepard's father's victim impact statement somewhere (I can't figure out how to link it) and, as I had remembered, it was sad, angry, and most of all, merciful towards the people who murdered his son. Pretty amazing.

-Seventh Sister

// posted by Anonymous

Anonymous said...

A study was done of Russian jury trials when they started in 1994. I was an editor on the piece. Victim impact statements serve many purposes. This remarkable story is true (Stephen Thaman, The Ressurection of Jury Trial in Russia, 31 Stan J. Int'l L. 61 (1995):

"In MOSCOW-1 [a jury trial], the aggrieved widows of the two men who were allegedly strangled to death by the defendant Slonchakov actually undermined the prosecution's case. The first widow, Kulagina, testified that her husband, Kulagin, had beaten her and had threatened to rape their daughter. She purportedly went next door to ask the defendant for help. Defendant Slonchakov and co-defendant Chernikov proceeded to beat the drunk Kulagin. Slonchakov allegedly strangled him to death. They left him submerged with rocks in his pockets under the ice of the Kliazma River. Kulagina testified that her husband was a dangerous person who for two years constantly threatened and beat her and her children, and that since his death her life had improved a great deal. 

The other aggrieved, Novikova, also helped Slonchakov's case. Following Slonchakov's admission that he beat and strangled the woman's husband, she testified that her husband threatened her and attacked her to get her pension money to buy vodka. She also testified that her husband had tried to strangle one of his daughters and had beaten another daughter so badly that she suffers from epilepsy. Then she turned to the prosecutor and bellowed: "You said my husband was a human being. He was not a human being! He was an animal! They should have hanged him twice and shot him three times!" She bowed to the defendant, thanked him for murdering her husband, and then testified that when the victim's sister had visited his grave, all she could say was "Thank God!"" 

// posted by LTG

Dr. Strangelove said...

I loved LTG's quotes. Russian life is always so dramatic! No wonder there are so many good Russian writers and playwrights.

Anonymous said...

"It is my understanding that the convicted criminal has the right to play on the jury's sympathies: to tell his own sob story of how he was abused as a child, to explain how much the crime has hurt him"

I tend to object this as well. A crime is a crime. And since our justice system seeks to punish rather than rehabilitate, I don't see the value in dredging up a bad childhood. The idea that getting beaten by your drunk father is a mitigating circumstance for the murder you committed 30 years later seems absurd. Being mentally ill is one thing, being plain mean is another. So maybe we should limit that stuff to the sentencing phase as well.

Loved the Russian stories. It reminded me of the stories of many female convicts in the US who killed their husbands after being beaten by them. My favorite case study from the days I studied criminal law was the woman who, after having been beaten for the millionth time by her husband waited until he was asleep and shot him in the head. She tried to use the temporary insanity defense but was denied because rather than having killed her husband in the heat of the moment, she had "premeditated" the murder since by waiting several hours to kill her husband. I was angry that she got convicted, but interested in the logic used by the court. I mean how are you supposed to shoot the guy when he is beating you and the gun is still in the drawer in the other room? Anyway . . .

Just an update, it is reported to day that Moussaoui, impressed by the fairness of the jury, wants to be retried because he said he feared they wouldn't be fair, and so lied about everything. I think he is just disappointed that he can't be martyred.

// posted by Uswest

Anonymous said...

USWest - the law is rather clear about premeditation, and I'm nost sure you got the case exactly right. If you pick up a gun and shoot it while the emotional whirlwind is in full swing, within seconds or minutes of an attack, that can be a mitigating factor, or even "provocation" which can reduce the charge to manslaughter. But plotting murder for several hours is clearly premeditation, and always has been. The distinction is whether the killing was planned or it seemed to be "spur of the moment." Lying in wait is a classic case of planning murder. On the other hand, temporary insanity should still available if, as a result of the millionth beating, something in the woman snapped. The insane do plot.  

// posted by LTG