{"id":1792,"date":"2026-04-14T07:57:48","date_gmt":"2026-04-14T11:57:48","guid":{"rendered":"https:\/\/www.law.georgetown.edu\/legal-ethics-journal\/?page_id=1792"},"modified":"2026-04-14T07:57:48","modified_gmt":"2026-04-14T11:57:48","slug":"extracting-the-impact-crafting-jury-instructions-to-curtail-the-influence-of-victim-impact-evidence-on-death-penalty-sentencing-juries","status":"publish","type":"page","link":"https:\/\/www.law.georgetown.edu\/legal-ethics-journal\/in-print\/volume-38-issue-4-fall-2025\/extracting-the-impact-crafting-jury-instructions-to-curtail-the-influence-of-victim-impact-evidence-on-death-penalty-sentencing-juries\/","title":{"rendered":"Extracting the Impact: Crafting Jury Instructions to Curtail the Influence of Victim Impact Evidence on Death Penalty Sentencing Juries"},"content":{"rendered":"

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\u2014all 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.\u00a0<\/span><\/p>\n

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\u2014aspects of the defendant\u2019s life that suggest death is too harsh a sentence for the harm done. You watch as witness after witness illustrates the defendant\u2019s 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 \u201cshall impose a sentence of death.\u201d<\/span><\/p>\n

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\u2019s mother, takes the stand.<\/span> 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\u2019s life unfolds to the tune of soft music and the narration of her mother\u2019s voice\u2014home video clips from her early childhood through young adulthood flash on the screen. \u201cOne segment shows Sara singing a couple of songs with a school group, including \u2018You Light Up My Life.\u2019 Part of the time she was singing solo.\u201d<\/span> The video continues with clips of Sara \u201cswimming, horseback riding, at school and social functions, and spending time with her family and friends.\u201d<\/span> It ends with a shot of Sara\u2019s grave marker, proceeding into a video clip of people riding horseback in Alberta, Canada. You hear Ms. Farwell say that \u201cthis was where Sara came from and was the \u2018kind of heaven\u2019 in which she belonged.\u201d<\/span> When the video ends, you notice you\u2019ve become emotional, too.\u00a0<\/span><\/p>\n

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.<\/span> You are told that you may not consider the impact of the victim\u2019s 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.\u00a0<\/span><\/p>\n

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 <\/span>for<\/span><\/i>. 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\u2019s evidence is not aggravating, but you cannot shake the effect that home video had on you. You are human after all.\u00a0<\/span><\/p>\n

Given that victim impact evidence (also referred to as \u201cVIE\u201d and \u201cvictim impact statements\u201d) 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.<\/span><\/p>\n

Keep Reading<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

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 […]<\/p>\n","protected":false},"author":14207,"featured_media":0,"parent":1755,"menu_order":0,"comment_status":"closed","ping_status":"closed","template":"abstract.php","meta":{"_acf_changed":false,"_price":"","_stock":"","_tribe_ticket_header":"","_tribe_default_ticket_provider":"","_tribe_ticket_capacity":"0","_ticket_start_date":"","_ticket_end_date":"","_tribe_ticket_show_description":"","_tribe_ticket_show_not_going":false,"_tribe_ticket_use_global_stock":"","_tribe_ticket_global_stock_level":"","_global_stock_mode":"","_global_stock_cap":"","_tribe_rsvp_for_event":"","_tribe_ticket_going_count":"","_tribe_ticket_not_going_count":"","_tribe_tickets_list":"[]","_tribe_ticket_has_attendee_info_fields":false,"footnotes":"","_tec_slr_enabled":"","_tec_slr_layout":""},"class_list":["post-1792","page","type-page","status-publish","hentry"],"acf":[],"ticketed":false,"_links":{"self":[{"href":"https:\/\/www.law.georgetown.edu\/legal-ethics-journal\/wp-json\/wp\/v2\/pages\/1792","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.law.georgetown.edu\/legal-ethics-journal\/wp-json\/wp\/v2\/pages"}],"about":[{"href":"https:\/\/www.law.georgetown.edu\/legal-ethics-journal\/wp-json\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"https:\/\/www.law.georgetown.edu\/legal-ethics-journal\/wp-json\/wp\/v2\/users\/14207"}],"replies":[{"embeddable":true,"href":"https:\/\/www.law.georgetown.edu\/legal-ethics-journal\/wp-json\/wp\/v2\/comments?post=1792"}],"version-history":[{"count":1,"href":"https:\/\/www.law.georgetown.edu\/legal-ethics-journal\/wp-json\/wp\/v2\/pages\/1792\/revisions"}],"predecessor-version":[{"id":1795,"href":"https:\/\/www.law.georgetown.edu\/legal-ethics-journal\/wp-json\/wp\/v2\/pages\/1792\/revisions\/1795"}],"up":[{"embeddable":true,"href":"https:\/\/www.law.georgetown.edu\/legal-ethics-journal\/wp-json\/wp\/v2\/pages\/1755"}],"wp:attachment":[{"href":"https:\/\/www.law.georgetown.edu\/legal-ethics-journal\/wp-json\/wp\/v2\/media?parent=1792"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}