Two years later, the Court upheld this decision, 5–4. Then, in 1991, in Payne v. Tennessee, the Court reversed itself.

Pervis Tyrone Payne murdered Charisse Christopher and her two-year-old daughter, Lacie. During sentencing, Charisse’s mother delivered a heartbreaking victim-impact statement, and the jury sentenced Payne to death. In a 6–3 opinion, written by Chief Justice Rehnquist, the Court deemed victim-impact evidence “simply another form or method of informing the sentencing authority about the specific harm caused by the crime in question.” A victim should not be a “faceless stranger,” Rehnquist insisted. To right the balance in the sentencing phase of a capital criminal trial, courts should admit a “quick glimpse of the life the defendant chose to extinguish” and let prosecutors convey “the loss to the victim’s family and to society which has resulted from the defendant’s homicide.”

It was Thurgood Marshall’s turn to dissent. The Court, he noted, did not ordinarily reverse course so quickly. What changed was “neither the law nor the facts” but “only the personnel of this Court.” In his view, victim-impact evidence draws “the jury’s attention away from the character of the defendant and the circumstances of the crime to such illicit considerations as the eloquence with which family members express their grief and the status of the victim in the community.” Legal scholars tended to agree. A leading critic, the DePaul law professor Susan Bandes, wrote that victim-impact statements “appeal to hatred, the desire for undifferentiated vengeance, and even bigotry,” and “may block the sentencer’s ability to perceive the essential humanity of the defendant.” Moreover, she argued, “in their insistence on evaluating the worth of the victims,” victim-impact statements “offend the dignity of the victim as well.”

In both capital and non-capital cases, victim-impact evidence has been shown to affect sentencing: that’s why prosecutors introduce it. Research also suggests that, though victims of violent crime are disproportionately poor and nonwhite, white victims are twice as likely as black victims to make victim-impact statements. Where jurors identify victims as “respectable,” they tend to identify with them (finding their lives to be similar to their own), while they rarely identify with defendants (whose lives tend to be very different from theirs). Jurors also report being less compelled by victim-impact statements made by black victims than by those made by white victims. And victim-impact evidence appears to amplify the commonly held prejudice that people with darker skin are more “deathworthy.” Finally, Bandes explains, the statements leave judges wondering whether, for example, they are supposed to mete out a more severe punishment on behalf of the rape victim who gives a more compelling statement.

Plainly, Matsch was worried. “We have to guard this hearing to ensure that the ultimate result and the jury’s decision is truly a moral response to appropriate information rather than an emotional response,” he warned. He wanted a verdict and a sentence that would stick. He attempted to follow the test established in Payne: victim-impact evidence can be admitted in a capital case unless it is so “unduly prejudicial that it renders the trial fundamentally unfair.” But, as Bandes and Jessica Salerno, a psychologist at Arizona State, have argued, it’s hard to say what lies between probative value and prejudicial force: “If the probative purpose of the evidence is to evoke the life lost with vividness and particularity, what is the measure of undue prejudice?” Isn’t the whole point of this kind of evidence to stir the emotions?

Nor have clear guidelines been established about the form, quantity, or use of victim-impact evidence. Some of the things admitted as victim-impact evidence, including testimony that the victim was an excellent piano player, was “good honest hardworking God fearing people,” was a “smart person with higher IQ than others in her family” or had “a 3.8 grade point average,” would appear to advance the fundamentally anti-democratic notion that the lives of the eloquent, the intelligent, the beautiful, the cherished are more worthy of the full protection of the law than others.

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How much evidence is enough, or too much? Challenges in some states have sought to limit admissible victim-impact witnesses to numbers that range from three to eleven, but, effectively, the number is limitless. What kind of evidence is allowed? Courts have admitted poems, “handcrafted items made by the victim,” “letters children wrote to their murdered mother,” and “photographs of the stillborn child victim dressed in clothes that the victim-mother had intended him to wear home from the hospital.” Judges often report that they themselves find it difficult to recover their emotional equilibrium after hearing victim-impact statements. Sorrow knows no bottom.

Matsch struggled to draw a line. He questioned people who had attended the trial, one by one, before allowing them to give victim-impact evidence. “A penalty-phase hearing cannot be turned into some kind of a lynching,” he announced, explaining that he would exclude testimony that would inflame “the passions of the jury with respect to vengeance or the passions of the jury with respect to empathy for grief.” He agreed to let a ten-year-old boy testify about the loss of his mother, but only after being assured that the boy would not cry. He ruled as inadmissible poems, wedding photographs, and memorial videos, and “a photograph of a mother releasing a dove, in lieu of a funeral, because her child’s body was not yet found.” He did allow a video of a day in the life of Brandon Denny, who was three when the bomb went off. A ceiling tile had pierced the child’s skull and, at the time of the trial, he had undergone seven brain surgeries.

Memorial videos, initially a product of the funeral industry, have proved particularly controversial. In Hicks v. State (1997), the prosecution introduced a fourteen-minute montage of a hundred and sixty photographs spanning the victims’ life from infancy. The Arkansas Supreme Court upheld its admission. In Salazar v. State (2002), the prosecution, in a Texas case, introduced a seventeen-minute video of a hundred and forty photographs (almost half of which depicted the victim in infancy or early childhood, including with a puppy), set to music, including Céline Dion’s “My Heart Will Go On.” Both the trial and the appeals courts deemed it admissible; a higher-level state appeals court did not. In Kelly v. California (2008), the prosecution introduced a twenty-two-minute video about the life of Sara Nokomis Weir, who, at age nineteen, was murdered by a personal trainer who worked at the gym she frequented. The montage of stills and video footage is mostly narrated by Weir’s mother; the soundtrack includes recordings of Enya. The trial court admitted the video, and the California Supreme Court upheld the decision, noting that the video illustrated the victim’s pleasing “demeanor”: “Sara appears at all times to be reserved, modest, and shy—sometimes shunning the camera.” Although the U.S. Supreme Court refused to review this and another case, Justices John Paul Stevens and Stephen Breyer both disagreed with the decision. “The videos added nothing relevant to the jury’s deliberations and invited a verdict based on sentiment, rather than reasoned judgment,” Stevens wrote.

The use of such videos has led not only to the “mini-trial” on the victim’s character that the Court had warned about but also to a mini film festival. Offenders make videos, too. Sentencing-mitigation videos are the product of a for-profit industry. For about twenty thousand dollars, a filmmaker will pull together family photographs, home videos, narration, and music, in an attempt to paint the offender in a sympathetic light. “Our job is to make judges suffer,” one filmmaker says. In one recent sentencing-mitigation video, a friend of a convicted kidnapper says, “Joseph as a person, exempting this one situation, is an outstanding person, and outstanding friend, son, and outstanding pillar for his family. When you think about that word, ‘kidnapping,’ and you think about what it entailed, it doesn’t fit Joseph at all.” Videos from opposing sides can look uncannily alike. In State v. Leon (2006), the prosecution introduced a four-and-a-half-minute video of Angie Leon, who was murdered by her husband, Abel Leon. Most of the images and footage showed Angie and her three young children, often with their father. The video was meant to chronicle the children’s loss of their mother, and the Idaho Court of Appeals allowed it on these grounds. But, if their father was sentenced to death, they would lose him, too. As the University of Pennsylvania law professor Regina Austin has pointed out, either side could have used the film to equal effect. There are concerns, too, about new forms of digital evidence—PowerPoint slides, a Facebook time line, a digitally enhanced reconstruction of the crime, an augmented-reality program in which jurors endure the suffering of the victim of a violent crime, and more. The lack of rules leads to a technologically enhanced battle for the court’s sympathy. Cassell finds this objection specious. He asks, “If the defendant gets to use augmented reality, why can’t I? The point from the victims’ perspective is an equality point. If this is too emotional and too overpowering and too glossy and slick to go into our court system, then make that point, but don’t make it only about victim evidence.” Still, judges struggle with the problem of how to prepare jurors for what they’re about to see and hear. In 2003, after Gary Sampson was convicted of three premeditated murders in Massachusetts, the judge warned jurors, as the sentencing phase began, not to “permit the victims’ families’ testimony to overwhelm your ability to follow the law,” even as he instructed a clerk to hand out Kleenex.