# Amicus Curiae Brief — Payne v. Tennessee > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0124%3A13 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1991 - **Citation:** 501 U.S. 808 ## Text oa i) i) hated —_ = = = = BEST Il. III. QUESTIONS PRESENTED FOR REVIEW HAVE CRIME VICTIMS RELINQUISHED TO THE STATE THEIR RIGHTS AS INDIVIDUAL ‘CITIZENS TO EXACT RETRIBUTION FOR HARM COMMITTED AGAINST THEM, CREATING A FUNDAMENTAL DUTY ON THE PART OF THE STATE TO PROTECT AND VINDICATE THESE RIGHTS? DOES THE 8TH AMENDMENT ALLOW FOR THE USE OF VICTIM IMPACT STATEMENTS IN THE PEN- ALTY/SENTENCING PHASE OF A CAPITAL CASE? SHOULD A CRIME VICTIM BE RECOGNIZED AS A PARTY AND HAVE STANDING INDEPENDENT FROM THE PUBLIC PROSECUTOR FOR THE LIMITED PURPOSE AT THE SENTENCING PHASE (INCLUDING THE PENALTY PHASE OF A CAPITAL CASE) TO PRESENT A VICTIM IMPACT STATEMENT? TABLE OF CONTENTS Page Questions Presented For Review .....+.+-+-i Table of Authorities . .....+. +++ +++ «iv Identity & Interest of Amici Curiae ..... .2 Summary of Argument ....-+ +++ « «© © © «© «5 Introduction ...+«+se«e-eeeee ee eevee ee F Argument ..+++se#e22e ee © © © © © © 0 oo Oke I. Il SINCE CRIME VICTIMS HAVE RELINQUISHED TO THE STATE THEIR RIGHT TO EXACT INDIVIDUALIZED RETRIBUTION FOR INJURY CAUSED AT THE HANDS OF A WRONGDOER, THE STATE HAS A FUNDAMENTAL DUTY TO VINDICATE VICTIMS’ INTERESTS ... +++ +2 © « « « 12 -THE PURPOSE OF A SENTENCING HEARING IS TO BALANCE THE RIGHTS OF THE CONVICTED AGAINST THE HARM SUFFERED BY THE VICTIM IN ORDER TO ACHIEVE THE SOCIETAL GOAL OF DETERRENCE AND ii es: oe chen e sp » we ee eee FAIRNESS WITHOUT TRANSCENDING THE CONSTRAINTS OF THE 8TH AMENDMENT... . 19 III.THE RIGHT OF CRIME VICTIMS TO JURY CONSIDERATION OF VICTIM IMPACT STATEMENTS OR COMMENT TO THE JURY BY THE PROSECUTOR CONCERNING VICTIM HARM IN THE PENALTY/ SENTENCING PHASE OF A CAPITAL CASE, WILL BE RESOLVED BY RECOGNITION OF VICTIMS’ LEGITMATE CLAIM TO PARTY STATUS (STANDING) INDEPENDENT FROM THAT OF THE PUBLIC PROSECUTOR FOR THIS PURPOSE ...... .29 iii TABLE OF AUTHORITIES CASES Vv j ’ 64 Cal 2d 159 (1966) ...seeeeesceeeeeeceeeees oo3d4 Booth v. Maryland, 482 U.S. 496 (1987) ....-.+0++++19,24,27,28,30,31 Bullen v. Superior Court, 204 Cal App. 3d 22 (1988) .. cee eee eee reer eevees 35 Furman v. Georgia, Se ET ED «6 va cdoceeseebeceseeeroeess 21 , ee A cans 6eese00ssee un te 20,21,37 McGautha v. California, ee Oe ec ccccegcanaseseseceeeennes 20 Minor v. Happersett, sd ce cue be eeeeeeesetenees 13 i. eee | 8 8 eer gs eee ee 10 ’ RS a Se 13 , Sees Gs Oe BE EROOOD co ccccceccscensesa 35 (146 Cal App. 24 7 (1956) .cccccccccccceccccecs 34 Snyder v. Massachusetts, eS ee 22 , os * 8. ye ee eee 22,23 iv PERIODICALS Page Aynes, The Right Not to be a Victim, 11 Pepperdine L. Rev. 63 (1984)......14,16,17,34 Carrington, Crime and Justice: , Critical Issues, The Heritage Foundation (1982)......eeeeeeeees 15 Gittler, Expanding the Role of the Victim in a Criminal Action: An Overview of Issues and Problems, 11 Pepperdine L. Rev. 117 (1984) e*eeeenees3enereoeeeseeee#eeeee#ee#ee#e#e#« 14,17 Hudson, The Crime Victim and the 7 : . —_ 11 Pepperdine L. Rev. 23 (1984)......ceeeeeees 25 Murphey, The Significance of Victim Harm: Booth v. Maryland and the Philosophy of Punishment in the Supreme Court, 51 Univ. Chicago Law Rev. 1303 (1988)......... 26 Nicholson, G. Forgotten Victims: An Advocate’s Anthology, p. vi, (1977)......... 9 Roland, D., Progress in the Victims Movement: " . ” 11 Pepperdine L. Rev. 35, 51 (1989)........ 17,35 MISCELLANEOUS Model Code of Professional Responsibility EC 5-15 Ce 6 060 06650605060666666% se f#eeeee. 33,34 Statement: 137 Cong. Rec. S3021-02 (daily ed. March 12, 1991) (statement of Sen. Biden)..... 18 Vv NO. 90 - 5721 STATUTES IN THE California Penal Code, Sec. 1191.1.........-:- 35 SUPREME COURT OF THE UNITED STATES Victim and Witness Protection Act of 1982, October Term, 1990 Pub. L. No. 97-291, 96 Stat. 1242 (1982)...25,26 PERVIS TYRONE PAYNE, TEXTS 16A Am. Jur. 2d Constitutional Law Petitioner, Sec. 363 (C1979) cccccccccccecce e*e*e ee The proponents of the Booth holding argue that by allowing victims a voice, our new justice will be based on a battle of numbers, as well as victim social status: that the identical crime committed against a "popular" victim and against a "homeless orphan" will lead to society judging not the crime committed but rather the person against whom it is committed. The solution, however, is not to stifle the voices of victims whose need is great to give sorrow words. Victims speaking of harm done, of the effect the crime has had on their lives, do not claim: that one life is more valued than another, but rather bring into sharp focus - 28 = jury, and society, the of what the aftermath of violent for the judge, the realities crime exacts on each of these essential parts of life in a free society. To muzzle all victims at capital sentencing hearings for fear that some may be more persuasive or express more eloquently the horrors of crime, is the truly arbitrary and capricious decision. ARGUMENT IiIl. THE RIGHT OF CRIME VICTIMS TO JURY CONSIDERATION OF VICTIM IMPACT STATEMENTS OR COMMENT BY THE PROSECUTOR CONCERNING VICTIM HARM IN THE PENALTY/SENTENCING PHASE OF A CAPITAL CASE, WILL BE RESOLVED BY RECOGNITION OF VICTIMS’ LEGITIMATE - 29 - CLAIM TO PARTY STATUS (STANDING) {INDEPENDENT FROM THAT OF THE PUBLIC PROSECUTOR FOR THIS PURPOSE. In his dissent in Booth, Justice Scalia wrote, Many citizens have found one-sided, and hence, unjust the criminal trial in which a parade of experiences that Grove the defendant to commit his crime, with no one to lay before the - 30 - elsewhere. To require, as we have, that all mitigating factors which render capital punishment a harsh penalty in the particular case be placed before the sentencing authority, while simultaneously requiring, as we do today, that evidence of much of the human suffering the defendant has inflicted be suppressed is in effect to prescribe a debate on the appropriateness of the capital penalty with one side muted. Jf that penalty is __constitutional, as we have the particular case to be heard. Booth at 520 (Scalia, J. dissenting). Emphasis added. - 31 - Elsewhere in the record of the case before this Court, amici for both the Congress of the United States and for the United States Department of Justice have presented arguments calling upon the Court to heed their strong and persuasive intent in passing laws at the Federal level which say, in sum: "We meant to put crime victims into the courtroom to be heard at all sentencing hearings in criminal cases." It would appear that Justice Scalia finds no Constitutional impediment to accepting the position taken by the United States Congress and the Department of Justice: that to remedy the imbalance suffered by the victims, and in order to "lay before the sentencing authority the full realty of human suffering the defendant has produced", victim impact should be measured alongside any mitigation - 32 - of defendant blame. The question then must be asked: if victim impact evidence in capital criminal sentencing hearings (penalty phase) is lawful, then does the victim have at least limited standing to be heard for purposes of victim impact evidence, determining the separate and apart from the prosecutor. While prosecutor and victim issues may seldom be at odds for the purpose herein discussed, without a determination about victim standing, the victim remains a nonentity, subject to being used, accorded access only when it suits the prosecutor. The Canon of Ethics forbids attorneys to represent more than one client whose interests may produce a conflict in representation. Model Code Of Professional - 33 - Responsibility EC 5-15 (1980). The Canon goes on to say that doubts should be resolved against the propriety of the eepresentation. It is settled law that the public prosecutor represents the state specifically, and the victim only very generally. See Aynes, Supra at 73 (1984). Over at least the last fifty years, prosecutors have appeared at hearings brought by defendants, requesting orders from a court for such things as psychological evaluations (Ballard v. Superior Court, 64 Cal. 2d 159, 1966) (People v. Bynon, 146 Cal App. 2d 7, 1956); as well as and physical examinations exclusion from courtrooms and appearances at lineups. See Aynes, Supra at 73 (1984). There is now a growing trend to grant victims - 34 - and to be heard, in the right to appear, person or by counsel, at various criminal proceedings, (e.g. California Penal Code, Sec. 1191.1). Roland, D., Progress in the Victim Reform Movement: No Longer the "Forgotten Victim", 17 Pepperdine L. Rev., 35, 38 ~- 42, 50 - 56 (1989). There is also a recognition that the law does not authorize prosecutors to represent victims at such hearings. People _v. Bullen, 204 OQziel v. Superior Court, 223 Cal App 3d. 1284 (1990). Cal App 3d. 22, 25 (1988), Amici suggest that recognition by the Court of crime victims’ independent and legitimate status as parties for the limited purpose herein proposed, will obviate the need to weigh the propriety of the use of victim impact evidence in the context herein argued. - 35 - CONCLUSION The police power imposes on the state the duty to protect the lives of its residents. (16A Am Jur.2d Constitutional Law Sec. 363 (1979) .] The police power is founded on the duty of the state to protect its people and to provide It is the for their safety. foundation upon which our social system rests 16A Grd eB Constitutional Law Sec. 433 (1984). The punishment to be meted out must be determined by balancing the harm actually experienced by a crime victim, against the permissible and carefully scrutinized defendant circumstances. The victim’s voice gives life to the impact of the crime and justly reflects not only vindication for the individual victim, but for the society it represents as well. Crime victims should be recognized as parties with standing in all criminal sentencing hearings, including those in capital cases. Any potential for arbitrariness can screened by the court, set out in Gregg v.- with those effectively be following guidelines Georgia, promulgated by each state. and read together Respectfully submitted, Auda [ee basnd I/ Judith Rowland, Esq. Crime Victims Legal Clinic 1221 22nd Street San Diego, California 92102 - 37 - --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0124%3A13. Public record. Not legal advice.