Imagine this. You are seated in the jury box of a courtroom, tasked with serving your civic duty in a capital murder trial. At this phase, the defendant has already been found guilty of the crime—all that is left is to determine the appropriate sentence. The prosecutor has sought the death penalty, so there are now two options on the table: death or life imprisonment without the possibility of parole. 

To impose the death penalty, the jury must determine that a statutory aggravating factor exists beyond a reasonable doubt, so you take note as the State puts forth evidence that it has met this burden. On the other hand, defense counsel is presenting a host of mitigating circumstances—aspects of the defendant’s life that suggest death is too harsh a sentence for the harm done. You watch as witness after witness illustrates the defendant’s existence as one full of seemingly every hardship life has to offer. You realize that your task, while incredibly difficult, seems clearly defined at this point under the laws of your state. First, determine whether an aggravating circumstance was present. If so, weigh the aggravating circumstance against the mitigation put forth by the defense. If the aggravators exceed the mitigators you “shall impose a sentence of death.”

As you come to terms with the scope of your responsibility, the prosecution comes forth with a new kind of evidence: a victim impact statement. A woman named Martha Farwell, the murder victim’s mother, takes the stand. You listen as she testifies about her daughter, Sara, and the impact that she had on her family. You look to your right and left and notice that some jurors have started to cry. Ms. Farwell then plays a video for the jury. You watch as Sara’s life unfolds to the tune of soft music and the narration of her mother’s voice—home video clips from her early childhood through young adulthood flash on the screen. “One segment shows Sara singing a couple of songs with a school group, including ‘You Light Up My Life.’ Part of the time she was singing solo.” The video continues with clips of Sara “swimming, horseback riding, at school and social functions, and spending time with her family and friends.” It ends with a shot of Sara’s grave marker, proceeding into a video clip of people riding horseback in Alberta, Canada. You hear Ms. Farwell say that “this was where Sara came from and was the ‘kind of heaven’ in which she belonged.” When the video ends, you notice you’ve become emotional, too. 

After this presentation, you feel more daunted by the task before you and uncertain about how to proceed. How do you consider this evidence? The Supreme Court has held that states may allow juries to evaluate it. You are told that you may not consider the impact of the victim’s death on her family as an aggravating circumstance, but if not, what purpose does it serve? You know your role is to consider all the evidence put before you, and you have sworn an oath to take that job seriously, but you have no idea how to consider the incredibly heartbreaking, emotive video that you have just seen. 

Depending on where you live, the judge may or may not present you with a jury instruction that mentions the victim impact evidence you saw. But one thing is clear: that instruction will not tell you, in concrete terms, what purpose that evidence should be considered for. At best, the judge will tell you what that evidence does not prove. Your once clear but difficult task has been muddied. You retire to deliberate knowing that Ms. Farwell’s evidence is not aggravating, but you cannot shake the effect that home video had on you. You are human after all. 

Given that victim impact evidence (also referred to as “VIE” and “victim impact statements”) is highly emotive and an accepted part of the sentencing phase of capital trials, how can defense lawyers craft jury instructions that minimize its effect? In order to answer this question, this Note will (1) provide context on the constitutionality of VIE; (2) outline what the Supreme Court has articulated about the appropriate role of VIE in capital sentencing trials; (3) expose the dangers of VIE to defendants that warrant its limitation through jury instructions; and (4) in light of that information, discuss ways to craft effective jury instructions about VIE. The Note will then highlight the overlap between VIE jury instructions in capital cases and competent legal representation, urging defense lawyers in capital cases to view VIE jury instruction advocacy as a crucial part of their duty to present mitigating circumstances, before offering concluding remarks.

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