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Litigating with victim impact testimony: the serendipity that has come from Payne v. Tennessee.

Burr, Richard
June 4, 2015

Source: (2003) Cornell Law Review. 88(2): 517-530.

A lawyer experienced in representing accused individuals facing the death penalty, Richard Burr makes these two observations about victim impact testimony in capital cases: (a) it usually serves the prosecution’s goal of procuring a death sentence; and (b) it does little to address most of the needs of survivors of murder. At best, such testimony provides a momentary opportunity for survivors to voice their loss, thus being heard and felling less isolated. At worst, it exploits the immense pain suffered by survivors to serve as a lever to produce a death sentence. With all of this in mind, he considers the situation in the wake of Payne v. Tennessee (501 U.S. 808 [1991]), a case that made it virtually impossible for defense counsel to exclude or limit victim impact testimony. Now, he argues, defense lawyers must reach out to survivors with genuine compassion. They must learn from survivors which needs can be met within the criminal justice process; and they must do what they can do, consistent with representing the interests of their clients, to ensure that those needs are adequately addresses. Defense lawyers must work for respectful inclusion of survivors in the criminal justice process and not be complicit in exploiting and excluding them.


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