Ellen Kreitzberg is an Associate Professor at Santa Clara University Law School, Santa Clara, CA where she teaches criminal law, evidence and trial advocacy. For ten years, she was a public defender in Washington, DC. She is the Director of the Bryan Shechmeister Death Penalty College -- a six-day intensive training program for lawyers handling capital cases.
How Much Payne Will the Courts Allow? John Doe is charged with the rape and murder of thirty-year-old Sally Smith. After the jury convicts Doe of first-degree murder, the penalty phase of the trial begins where the jury must decide whether he receives life imprisonment or the death penalty. The prosecution begins its case by bringing in a video projector and a screen. As the lights in the courtroom dim, images of the victim as a young girl begin to flash on the screen. A musical soundtrack provides background as this professionally produced video portrays the life and times of the victim with her family, friends, and neighbors, at home, at school and at work. The sixteen-minute video ends with a segment from the victim's wedding just three months prior to her murder where the newlyweds repeat their vow, ". . . till death do us part." This phrase rings in the courtroom over and over as the picture fades and the murder scene flashes on the screen. Every juror is in tears. The judge coughs quietly.1
This is victim impact evidence as it is being introduced today. It can be devastating in its effect upon any sentencer and is far beyond what the Supreme Court allowed in Payne v. Tennessee 2 where the Court first upheld the admission of victim impact testimony. This column discusses the decision in Payne and what defense counsel should do to try to exclude or limit victim impact evidence during the penalty phase of a capital trial.
Payne v. Tennessee: What Really Happened
Pervis Payne was convicted of two counts of first-degree murder of a mother and her two year-old daughter, and one count of assault with intent to commit murder of the three-year-old son. During the penalty phase of the trial, the government called the grandmother to testify how the surviving three-year-old had been affected by the murders. The testimony, in its totality, consisted of the following:
He cries for his mom. He doesn't seem to understand why she doesn't come home. And he cries for his sister Lacie. He comes to me many times during the week and asks me, Grandma, do you miss my Lacie. And I tell him yes. He says, I'm worried about my Lacie.3
In closing argument the prosecutor commented upon the effects of the murders on the boy and other members of the family. After hearing this evidence and argument, the jury sentenced Payne to death.
Payne appealed, arguing that the evidence and argument violated Booth v. Maryland4 and South Carolina v. Gathers.5 These two cases held that victim impact evidence was irrelevant to a capital decision and created a constitutionally unacceptable risk that the jury may impose the death penalty in an arbitrary and capricious manner. The Supreme Court held in Booth and Gathers that victim impact evidence and argument were inadmissible in capital sentencing trials.
The United States Supreme Court upheld Payne's sentence, reversing Gathers and portions of Booth. The Court's holding was very narrow, stating only that the Eighth Amendment creates no bar to the admissibility of victim impact evidence or argument. Justice O'Connor specifically stated in her concurring opinion:
We do not hold today that victim impact evidence must be admitted or even that it should be admitted. We hold merely that if a state decides to permit consideration of this evidence the "Eighth Amendment erects no per se bar." (citations omitted.)6
The Court in Payne made clear that the evidence permitted by the state should be narrow in scope and purpose, citing the ability of the state to offer only a "quick glimpse of the life which a defendant chose to extinguish."(citations omitted.)7 The Court also explicitly cautioned that the introduction of this evidence could, under the facts of any particular case, so infect the sentencing proceeding as to give rise to a violation under the Due Process Clause of the Fourteenth Amendment.8
This leaves numerous issues for defense counsel to raise, both opposing the introduction of any victim impact evidence or, at a minimum, limiting the scope or the form of the evidence.
Limited Scope of Payne: Opinion About Crime, Defendant, or Sentence Still Unconstitutional
In Booth, the Court considered two different aspects of victim impact evidence and found both to be unconstitutional. The first was the introduction of evidence and argument relating to the victim and the impact of the victim's death on the victim's family. The Court in Payne permitted this evidence, making clear it was reversing only that portion of the decision in Booth.Booth addressed a second kind of victim impact evidence -- opinions by the victim's family about the crime, the defendant, or the appropriate sentence.9 Because no evidence of this kind was introduced in Payne's trial, the Court in Payne expressly declined to reach this issue.10
Counsel should, through pre-trial motions, make sure that the offered testimony falls only within the permissible parameters set under Payne and does not include any testimony of opinion by the victim's family about the crime, the defendant or the appropriate sentence.
While most courts continue to exclude this evidence, the Oklahoma Court of Criminal Appeals recently allowed victim impact evidence that included family members' opinions about the crime, the defendant and the sentence finding that this portion of Booth was "implicitly overruled" in Payne.11
The reasoning presented by the Oklahoma court is flawed. The Court in Payne admitted victim impact evidence finding it was relevant either to show the harm caused by the defendant or to demonstrate the unique nature of the victim. A family member's opinion about the crime or the sentence has no relevance to these or any other issue in a capital penalty proceeding. The court in Oklahoma found the evidence relevant solely based upon the fact that the Oklahoma statute specifically provides for opinion testimony.12
The good news is that the Oklahoma court did require that before opinion evidence may be admitted, the trial court must apply "heightened scrutiny" in balancing whether any probative value is outweighed by prejudice. If the court rules opinion evidence is admissible, counsel should argue that it fails this test.13
Don't Assume It Comes In: Move To Exclude All Evidence
Is there a statute authorizing admission of victim impact evidence? Counsel must first determine whether there is a statute authorizing the admission of victim impact evidence. Following Payne, many, but not all, states passed statutes authorizing the introduction of victim impact evidence14 or authorized its admission under existing statutes.15Some of the state statutes refer specifically to evidence admitted during the penalty phase of a capital trial while others refer only generally to victim impact evidence at the time of any criminal sentencing. Counsel should first determine the statute under which victim impact evidence is being admitted in his or her case. Counsel should challenge the use of these statutes as improperly failing to address the constitutional concerns raised in Payne.
Challenge the Constitutionality of the Statute
Counsel should challenge all statutes as unconstitutional as written or as applied under federal and state constitutional provisions. Many of the statutes are overbroad, providing no procedural safeguards to evaluate or limit the evidence the government may introduce. Many of the statutes fail to provide for jury instructions that will guide the jury in its consideration of the evidence. The result is that the jury is left with "unguided discretion" in its deliberations, enhancing the "risk of a wholly arbitrary and capricious action"16 and an unconstitutional death sentence.In constructing a challenge on state constitutional grounds, counsel should develop any existing state law or tradition where the state has recognized state constitutional rights that do not exist in federal law, or where the state has provided broader protection than analogous or identical provision in federal courts.17
Counsel should challenge victim impact evidence as unconstitutional as applied in your particular case mustering all the facts and circumstances of the case, including the circumstances of the crime, the weight of the evidence, and the nature and scope of the victim impact evidence offered. Where race plays some part in the case, counsel should make a record of the race of the parties involved, supplemented with materials that document the pattern of racial disparity in capital sentencings.18
Is the Victim Impact Evidence Relevant in Your Case?
One threshold question must be whether the victim impact evidence is even relevant in your particular case. Justice O'Connor explicitly stated in Payne that victim impact evidence is only "potentially relevant"19 depending on the particular state statutes and the specific testimony offered. Counsel must argue the limited relevance of the victim impact testimony.The first rational for relevance in Payne was that victim impact evidence provides a "method of informing the sentencing authority about the specific harm caused by the crime"20 allowing them to "assess meaningfully the defendant's moral culpability and blameworthiness."21 Adopting this rationale, some states have limited victim impact evidence to information that the defendant knew or should have known at the time of the murder.22 At a minimum, any evidence ostensibly offered for the purpose of showing "moral culpability" must stay clear of emotional and dramatic testimony that is likely to inflame the jury.
The second rational articulated in Payne is to allow a "brief glimpse" into the life of the victim to show the victim's "uniqueness as an individual human being."23 The literal language of the Supreme Court allowing only a "brief glimpse," demands that trial courts restrict the quantity of evidence that is offered about the life of the victim. Counsel should argue that providing the jury with anything more, turns the focus of the jury from the blameworthiness of the defendant to the worthiness of the victim. This kind of "comparative judgment" was specifically rejected by the Supreme Court in Payne24 and violates the constitutional requirement that capital sentencing provide an individual determination of the defendant's blameworthiness.25
Counsel should make sure the prosecutor does not attempt to introduce victim impact evidence under a general rubric of "aggravating evidence." Victim impact evidence is NOT aggravating evidence and may not provide a basis for qualifying a particular case as eligible for a sentence of death. Aggravating evidence must be specifically provided for by statute and non-statutory aggravating evidence is never permitted.26
If the prosecutor is able to convince the court that the evidence is relevant, counsel should request that the jury be given specific and detailed jury instructions as to the limited use of victim impact evidence. A few states have promulgated mandatory instructions to be used whenever victim impact evidence is introduced to insure that the jury's discretion is properly guided.27 One example follows:
The prosecution has introduced what is known as victim impact evidence. Victim impact evidence is not the same as evidence of a statutory aggravating circumstance. Introduction of victim impact evidence does not relieve the state of its burden to prove beyond a reasonable doubt the existence of a statutory aggravating circumstance. This evidence is simply another method of informing you about the harm caused by the crime in question. To the extent that you find that this evidence reflects on the defendant's culpability, you may consider it, but you may not use it as a substitute for proof beyond a reasonable doubt of the existence of a statutory aggravating circumstance.28
If Evidence Is To Be Admitted, Limit its Scope
Victim impact evidence should be challenged with an aggressive pre-trial motions practice to propose procedural safeguards and limit the scope of the evidence presented. All issues should be phrased in constitutional terms to insure review in federal courts. While the court in Payne was quick to open the door to victim impact evidence, they set forth no specific guidelines or criteria on how this evidence should be used at the capital trial. These issues were left to the state courts and legislatures. Thus, trial judges risk reversible error if they fail to adopt procedures that prevent inflammatory presentation of the evidence.29Demand Notice of Prospective Witnesses and Evidence
First, counsel should demand notice of all victim impact evidence that the prosecution intends to introduce. This should include not just the names of each witness but the exact content of their testimony to enable counsel and the trial court to review the witness's proposed statement, make sure that it is factual, not emotional, and that it is free of inflammatory comments and references. In conducting this review, the court must weigh each specific point of proffered testimony to determine whether its probative value is outweighed by the risk of undue prejudice.Some courts have held that each witness be required to read from the approved statement.30 This format makes it less likely that the witness will lose control, offer highly emotional and prejudicial testimony, or add improper content.
Demand Disclosure of Exculpatory Evidence
Counsel must file motions requesting disclosure of exculpatory evidence31 that tends to negate, counter, or refute the victim impact evidence the government seeks to introduce. Payne specifically provides for a defendant's right to rebut victim impact evidence when it stated:
[T]he mere fact that for tactical reasons it might not be prudent for the defense to rebut victim impact evidence makes the case no different than others in which a party is faced with this sort of a dilemma. . . . [The weight of this evidence] is left to the factfinder who would have the benefit of cross examination and contrary evidence by the opposing party. (citations omitted)32
Counsel should request this information with as much specificity as possible. Requests could include information relating to financial gain resulting from the victim's death, prior bad acts of the victim, and family members lack of concern for the victim. Counsel should file subpoenas seeking psychiatric records, substance abuse records, transcripts of divorce proceedings, citing the need to prepare proper victim impact rebuttal.
The failure of the government to disclose this information or the failure of the court to allow cross-examination of the victim impact witness could result in reversible error. In Conover v. State, the Oklahoma Court of Criminal Appeals reversed the penalty phase based upon a violation of the defendant's right of confrontation where the defendant was not permitted to cross-examine the victim's family about the victim's drug usage. The court found this evidence was relevant in providing the jury the "brief glimpse of the life" of the victim.33
Counsel should also request the names of family members who oppose the imposition of the death penalty. While a family member's opinion about the sentence may not be admissible, counsel could present testimony about the negative impact that the process of seeking death has had on the family member and how it will continue with the imposition of any sentence of death.
These motions may or may not be granted, and even if granted counsel may choose not to pursue or use this information. However, the issuing of subpoenas or the filing of motions may have the effect of limiting the nature of the testimony the prosecutor seeks to introduce at the sentencing hearing.
Demand a Pre-Trial Evidentiary Hearing
If the court is prepared to allow the witness to testify before the jury, counsel should request a pre-trial hearing where the court reviews the live testimony of every witness the government intends to call. Counsel should argue that the court must hear the live testimony of each witness the state proposes to call to insure there is no highly emotional or inflammatory statements and to assess whether the evidence will violate the Due Process rights of the defendant. This procedure allows the court to determine whether the witness will be able to testify in a manner that will not arouse the passions and emotions of the jury.There are numerous federal and state precedents for conducting pre-trial judicial review of evidence prior to its submission to the jury.34 Several states have adopted procedural safeguards or limitations on victim impact evidence before it may be admitted.35 such as notice of the witnesses and their testimony prior to the beginning of the trial,36 limiting the number of witnesses who may testify, and restricting minors from testifying.37
Counsel should remember that the procedural safeguards are limited only by counsel's imagination and argument. Courts are concerned about the inflammatory nature of victim impact evidence, affording counsel a strong basis to dramatically limit this testimony at trial.
Grounds for Exclusion
Due Process Challenge
Counsel should challenge the admission of victim impact evidence as a violation of the Due Process Clause of the Constitution. Justice O'Connor's concurring opinion in Payne provides:
If, in a particular case, a witness's testimony or a prosecutor's remark so infects the sentencing proceeding as to render it fundamentally unfair, the defendant may seek appropriate relief under the Due Process Clause of the Fourteenth Amendment. . . .38
Justice Souter confirmed the need for Due Process review in his concurrence:
With the command of due process before us, this Court and other courts of the state and federal systems will perform the 'duty to search for constitutional error with painstaking care' an obligation 'never more exacting than it is in a capital case.' (citations omitted.)39
The Court in Payne set no guidelines to assess the admissibility of victim impact evidence in any given case. Counsel should urge the court to adopt a specific standard to evaluate the admission of the victim impact evidence. The most logical model is Federal Rules of Evidence Rule 40340 or a similar state statute that precludes the use of evidence when its prejudicial effect substantially outweighs its probative value.
Counsel should articulate the limited probative value that victim impact evidence presents; whether to show the unique nature of the victim or the harm caused by the defendant, and contrast it with the prejudicial impact of what is always highly emotional and often inflammatory evidence. To the extent that a death sentence is based upon emotion, it is, of course, unconstitutional.41
Counsel should remind the court to follow the Payne directive to carefully scrutinize the trial for constitutional error.42 Where equally probative but less prejudicial evidence exists, the court should exclude the victim impact evidence or allow this information in a less prejudicial form.43 Where numerous witnesses are offered by the government, counsel should argue that the evidence is cumulative and one witness should be sufficient.
In attempting to demonstrate that the victim is "unique," prosecutors may try to place before the jury issues of race, religious affiliation, ethnicity, class, wealth, or social status of the victim. Counsel must exclude this information arguing that when the jury hears this information they become more likely to base their decision to impose death on improper factors; an emotional response to the family images, a tendency to identify with the similarity between themselves and the victim, or by making a comparative judgment between the victim and the defendant.
While the Court in Payne found no Due Process violation, the testimony presented in that case was very brief and relatively uneventful. Some prosecutors since Payne have tried to introduce evidence far more extensive, dramatic and emotional, even going so far as the professional video described above. Counsel should argue that victim impact evidence in their case would render the trial "fundamentally unfair" and should emphasize that extensive, emotional testimony from the victim's family will render the jury unable or unwilling to even consider the individual characteristics of the defendant. Counsel should point to particular aspects of the case -- e.g. inter-racial crime -- in supporting their objections.
Finally, counsel may wish to point out that the testimony of the grandmother in Payne referred only to the effect that the murder had on the young son who was also a victim. Counsel should contrast the evidence proffered in their case with the evidence actually reviewed in Payne to establish that the victim impact evidence in their case constitutes a violation of Due Process.
Eighth Amendment Challenge to Victim Impact Evidence
Every challenge in a capital case must include an allegation of a violation under the under the Eighth Amendment to the Constitution -- that the victim impact evidence creates a constitutionally unacceptable risk that the jury may impose the death penalty in an arbitrary and capricious manner.44 The Court in Payne did not preclude the possibility of an Eighth Amendment violation, they simply held that the Eighth Amendment created no per se bar to the admission of the evidence.Counsel should renew this motion during trial when the evidence is actually admitted, making a record as to specific emotional reactions by the jurors or other persons in the courtroom to the evidence. Counsel should argue that based upon the climate in the courtroom, no juror could consider the individual characteristics of the defendant in a meaningful way.
Equal Protection Challenge: Comparative Judgments
Counsel should challenge both the victim impact statute as well as the introduction of victim impact evidence in their particular case as violative of the Equal Protection Clause of the Constitution. The Court in Payne never discussed the implication of the Equal Protection Clause except to confirm that:
[V]ictim impact evidence is not offered to encourage comparative judgments of the worth of the victims -- for instance that the killer of a hardworking devoted parent deserves the death penalty, but that the murderer of a reprobate does not.45
Counsel should argue that the admission of victim impact evidence not only creates two classes of defendants, those who kill worthy members of society and those who kill less worthy members, but also classes of victims: those whose lives were so worthwhile that their killer should be put to death and those who were of questionable character. Counsel must articulate how the victim impact evidence goes far beyond a showing that the victim was unique, but rather enhances the status of the particular victim by identifying them as "worthier than others of society's highest measure of concern."46 The evidence has the undeniable effect of encouraging the jurors to make comparative judgements either among various victims or between the victim and the defendant. The evidence forces the jury to focus on the victim's race, education, economic status, religion, and ethnicity in determining whether the defendant should live or die. Counsel should argue that the penalty trial now becomes a direct clash between the evil of the defendant and the innocence of the victim, leaving the jury feeling that any mercy given to the defendant is just one more stroke of cruelty to the victim.
Sixth Amendment Right To Confront Witnesses
Certain victim impact evidence may give rise to an objection based upon a violation of the defendant's Sixth Amendment right to confront witnesses. In capital trials, the penalty phase is viewed as an extension of the guilt phase trial providing many of the same protections given to the defendant at the guilt phase. The Supreme Court held that Due Process protections, such as the right to counsel and the right to confront witnesses must be available to the defendant at the penalty phase."47The prosecutor may attempt to introduce victim impact evidence through video tapes portraying the "Day in the Life" of the victim or statements made by the victim prior to the murder. In this case counsel should object that this procedure violates the defendants constitutional right to confront and cross-examine witnesses. Counsel should argue that this evidence is hearsay as it is being offered for its truth that the victim held certain hopes, dreams and ambitions and would have followed this course in his or her life. Counsel should reject any notion that the evidence has a non-hearsay use, showing that its relevance is based upon the premise that the statements are true.
Lack of Proportionality Review
In every capital case, the court is required to conduct a proportionality review -- to examine each sentence and to determine whether that sentence is disproportionate compared to those sentences imposed in other similar cases. Proportionality review insures the constitutionality of the death penalty by assuring consistency and safeguarding against arbitrariness and caprice.48Counsel should argue that the introduction of victim impact evidence at trial makes a meaningful proportionality review impossible, rendering the sentence of death violative of the Eighth Amendment. The introduction of victim impact evidence places before the jury information very personal to the victim, including age, occupation, social status, and religious affiliation. This information is likely to have a dramatic effect on the jury and yet it is impossible to evaluate or compare with the personal information introduced in other capital cases. It also makes it impossible to determine whether the sentence of death was improperly based.
Federalizing Claims for Appeal
As with all issues in defending a capital case, challenges to victim impact evidence must be made at every stage of the trial, appeal and post-conviction review. Counsel must file pre-trial motions, object during trial, propose jury instructions, object to the court's instructions and support all motions and objections with proper legal and factual grounds for relief. Every issue must be "federalized" by citing to specific amendments to the United States Constitution, otherwise, the federal courts will refuse to even review the claim.49
Litigate Every Possible Challenge
The challenge facing counsel post-Payne is to aggressively and creatively litigate every possible challenge to victim impact evidence. We should be able to limit the scope and the form of the evidence and perhaps even exclude much of it altogether. Counsel must be especially diligent to incorporate issues of race and prejudice into their objections. Finally, counsel must zealously articulate their arguments making a record and renewing objections at every stage. One day, the federal courts may listen.
Notes
1. This hypothetical is a composite of several cases.2. 501 U.S. 808 (1991).
3. Id. at 814-815.
4. 482 U.S. 496 (1987).
5. 490 U.S. 805 (1989).
6. Payne, 501 U.S. at 831.
7. Id. at 822, 830 (O'Connor, J., concurring).
8. Id. at 831 (O'Connor, J., concurring).
9. Booth, 482 U.S. at 502-503.
10. Id. at 830 ft. nt. 2, 833 (O'Connor, J., concurring).
11.Ledbetter v. Oklahoma, 933 P.2d 880 (Okla. Crim. App. 1997); Conover v. Oklahoma, 933 P.2d 904 (Okla. Crim. App. 1997)
12. Okla. Stat. Tit.22, 984 (1993 Supp.)
13. Ledbetter, 933 P. 2d at 891; Conover, 933 P. 2d at 921.
14. Forty-nine states currently have some form of a statute permitting the introduction of victim impact evidence. C.L. Mullholland, Sentencing Criminals: The Constitutionality of Victim Impact Statements, State v. Wise, 60 Mo. L .Rev. 731, 734 (1995).
15. See California Penal Code 190.3(a), victim impact evidence is introduced as a circumstance of the crime.
16. Gregg v. Georgia, 428 U.S. 153, 189 (1976).
17. State v. Muhammad, 678 A. 2d 164 (N.J. 1996)(Handler, J., dissenting).
18. See U.S. GAO Death Penalty Sentencing; Baldus, Pulaski, & Woodworth, Comparative Review of Death Sentences: An Empirical Study of the Georgia Experience, 74 J. Crim. L.&C. 661 (1983)(research study showing pattern of disparity); V. Berger, Payne and Suffering: A Personal Reflection and a Victim Centered Critique, 20 Fl. St. U. L. Rev. 21 (1992)(racial disparity as part of the individualized constitutional challenge).
19. Payne, 501 U.S. at 831.
20. Id. at 825.
21. Id. at 825.
22. See State v. Bernard, 608 So.2d 966 (La. 1992).
23. Payne, 501 U.S. at 823.
24. Id. at 823.
25. Woodson v. North Carolina, 428 U.S. 280 (1976)(plurality opinion).
26. Zant v. Stephens, 462 U.S. 862 (1983).
27. Cargle v. State, 909 P.2d 806, 828-829 (Okla. Crim. App. 1995); Turner v. State, 486 S.E. 2d 839 (Ga. 1997).
28. Turner, 486 S.E. 2d at 843.
29. Courts in a few states found victim impact evidence NOT admissible because it was not relevant or was not authorized under their specific state statute. See State v. Guzek, 906 P.2d 272 (Or. 1995); State v. Carter, 888 P. 2d 629 (Utah, 1994); Smith v. State, 919 S.W. 2d 96 (Tex. Crim. App. 1996); Mack v. State, 650 So. 2d 1289, 1324-1325 (Miss. 1994), cert. denied, ___ U.S. ___, 116 S. Ct. 214, 133 L. Ed.2d 146 (1995); Bivens v. State, 642 N.E.2d 928 (Ind. 1994), cert. denied, ___ U.S. ___, 116 S. Ct. 783, 133 L. Ed. 2d 734 (1996).
30. Turner, 486 S.E. 2d at 842.
31. United States v. Agurs, 427 U.S. 97 (1976); Brady v. Maryland, 373 U.S. 83 (1963).
32. Payne, 501 U.S. at 823.
33. Conover, 933 P.2d 904.
34. See Livingston v. State 444 S.E.2d 748 (Ga. 1994); Federal Rules of Evidence 404(b).
35. See Livingston, 444 S.E.2d 748 (pre-trial ruling on victim impact evidence); State v. Muhammad, 678 A.2d 164 (elaborate set of procedural safeguards including notice given of names of witnesses, testimony limited to one survivor for each victim, testimony reduced to writing and approved by the court, testimony limited to reading of approved statement); Cargle v. State, 909 P.2d 806 (Okla .Crim. App. 1995) (procedural safeguards and mandatory jury instruction).
36. 444 S.E. 2d 748.
37. Muhammad, 678 A. 2d 164.
38. Payne, 501 U.S. at 831.
39. Id. at 837.
40. Federal Rules of Evidence Rule 403 states, "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by consideration of undue delay, waste of time, or needless presentation of cumulative evidence."
41. Gardener v. Florida, 430 U.S. 349, 357 (1977)(plurality opinion).
42. For a discussion of Due Process in the victim impact analysis, See J.H. Levy, Limiting Victim Impact Evidence and Argument After Payne v. Tennessee, 45 Stan. L. Rev. 1027 (1993).
43. The Advisory Committee Note to Federal Rules of Evidence Rule 403 states, ". . . in reaching a decision on whether to exclude on grounds of unfair prejudice . . . the availability of other means of proof may also be an appropriate factor."
44. Payne, 501 U.S. at 803.
45. Id. at 823.
46. V. Berger, Payne and Suffering: A Personal Reflection and a Victim Centered Critique, 20 Fl. St. U. L. Rev. 21, 46 (1992).
47. Bullington v Missouri, 451 U.S. 430, 446 (1981).
48. Gregg, 428 U.S. at 198.
49. Wainwright v. Sykes, 433 U.S. 72 (1977)