Elkan Abramowitz , a principal in Morvillo, Abramowitz, Grand, Iason & Silberberg, P.C., is a former Chief of the Criminal Division in the United States Attorney's Office for the Southern District of New York. He has also served as special counsel to the Select Committee for the U.S. House of Representatives. He writes a regular column on white-collar crime for The New York Law Journal.

Peter Scher works at the firm of Morvillo, Abramowitz, Grand, Iason & Silberberg, P.C., assisting several partners with researching and writing columns on white-collar crime and other topics for The New York Law Journal. A graduate of Tulane Law School, he has also served as Update Editor of a textbook on white-collar crime.

Reprinted with permission from the January 6, 1998 edition of The New York Law Journal. Copyright 1998, The New York Law Publishing Company. All rights reserved.

As reported in Main Justice, a new book by Jim McGee and Brian Duffy, Michael E. Shaheen Jr., the counsel and lawyer-in-chief of the Justice Department's Office of Professional Responsibility since its inception in 1975, recently told a roomful of chief assistant U.S. attorneys:

There is no other department [of government] that is viewed with comparable terror or fear, because there is no other department that by itself can put you in jail or take your life, liberty or property away from you. The [Justice] Department has the FBI and the other agencies. It has become a Leviathan in the minds of a lot of people because it is so big and imponderable. I think it is correct to say that no outsider is capable of oversight.¹

But, a long-awaited and important piece of legislation known as the Hyde Amendment, worked into this year's final appropriations bill for the Department of Justice, allows reimbursement of legal fees to defendants who were the victims of wrongful federal prosecutions. The law, applicable to criminal cases pending on or after November 26, 1997, permits a court to award attorneys' fees and other litigation expenses to the "prevailing party" in a criminal case if it finds that "the position of the United States was vexatious, frivolous, or in bad faith," unless such an award would be "unjust."² This legislation may go a long way toward providing judicial oversight of DOJ's excesses.

A Measure of Sunshine; A Measure of Judicial Oversight
While it certainly remains to be seen whether the new law will have an appreciable deterrent effect on the charging practices of the Department of Justice, the Hyde Amendment has put into place a much-needed vehicle for vindicated criminal defendants to argue that a prosecution was abusive or that the government had engaged in wrongful conduct. More specifically, arguments relating to inappropriate prosecution can now more easily be made and heard in federal court. The courts provide a forum far removed from the catacombs of DOJ's internal review processes, where such issues have heretofore been confined, and, many would say, swept under the rug.³

As McGee and Duffy report in their book, oversight of the ethics and discretion of the Justice Department has been a tricky business, especially for outsiders such as Congress, the press, or the courts. The authors report that complaints, and perhaps instances, of prosecutorial misconduct have skyrocketed in the last several years. Meanwhile, judges who attempt to impose any meaningful standards have often been thwarted by an unresponsive hierarchy within DOJ, or by appellate courts that are constrained by a rising tide of precedent that has weakened judicial authority in this area. The Hyde Amendment should help the courts to exercise a more appropriate, and necessary, degree of oversight.

The wording of the final version of the law, with the burden falling on the defendant to demonstrate that a prosecution was vexatious, frivolous or brought in bad faith, probably means that the significance of the measure will lie more in its message to prosecutors than in its impact on the economics of our justice system. An intense lobbying effort by DOJ in opposition to an earlier version of the bill that placed the burden of proof on the government ensured that the government would not be opening its purse strings in any but the most exceptional cases of prosecutorial abuse. But the message that the new law sends is clear: The power wielded by prosecutors is tremendous, and in some instances, prosecutors go too far in pursuing their targets; whether motivated by ambition, vindictiveness, misplaced enthusiasm, or a blinding political agenda. Apart from the internal oversight of the Justice Department itself, the Hyde Amendment provides an important additional safeguard -- a remedy and a deterrent -- against abusive use of such power.

EAJA and the Evolution of the Hyde Amendment
Although the defense bar has long argued for a law authorizing reimbursement of attorneys' fees for the wrongfully prosecuted,⁴ the evolution of the new legislation was less deliberate than one would have hoped. The direct impetus was an amendment to this year's appropriations bill proposed by Rep. John Murtha (D-PA), providing that members of Congress and their staffs would be reimbursed for legal expenses associated with successful defenses to prosecution. Murtha's proposal, it happens, was inspired by the legal troubles of his fellow Representative, Joseph McDade (R-PA), who was acquitted in 1996 after an eight-year defense of bribery and racketeering charges.

The next stage was more auspicious: House Judiciary Committee Chairman Henry Hyde (R-IL) expanded the scope of Murtha's amendment to apply to all federal defendants. The original Hyde Amendment to the appropriations bill would have required the government to reimburse an acquitted defendant's legal fees unless the government could prove that the prosecution was "substantially justified." Hyde explained that his amendment was aimed at situations in which the prosecution was "not just wrong," but "willfully wrong, . . . frivolously wrong. They keep information from you that the law says they must disclose. . . . They suborn perjury."⁵

The original version of the Hyde Amendment was based almost entirely on the Equal Access to Justice Act (EAJA),⁶ which since 1980 has been available in civil actions brought by the government to "lessen the financial burden on private parties who prevail against the U.S. government in agency adversary adjudications or non-tort civil actions by authorizing the award of attorney and expert witness fees."⁷ Under the EAJA, an award of fees and expenses to the prevailing party is mandatory unless the court finds that the position of the government was "substantially justified." Courts have placed the burden on the government to show that there was a "substantial justification" for its position whenever the defendant prevails in a covered action.⁸ Most applications, therefore, result in awards. Between 1990 and 1994, the government paid between $1 million and $8.2 million per year in awards under the EAJA.⁹

In September 1997, the House overwhelmingly approved the Hyde Amendment by a bipartisan vote of 340-84. Notwithstanding the logical fairness of allowing criminal defendants the same rights to reimbursement of legal fees as civil defendants, the Justice Department reacted strongly to the prospects of judges deciding what prosecutions were justified and which criminal defendants were to gain access to any of DOJ's allocated funds. The reaction of the Justice Department to the Hyde Amendment was swift, strongly negative, and -- to be kind -- overstated. According to a widely circulated Judiciary Committee memorandum, the Justice Department took the position that "[d]efending against [a criminal prosecution] has always been deemed to be one of the costs of American citizenship." While DOJ is, of course, correct in saying that federal courts generally follow the so-called "American rule" where each side normally pays its own litigation costs, it can hardly be said that defending against an abusive or unjustified prosecution should not be an exception to that rule.

DOJ Threatens Veto: 'The Sky is Falling'
Attorney General Janet Reno warned that the Justice Department would urge President Clinton to veto the entire appropriations bill if the Hyde Amendment was adopted by the Senate. The Justice Department and the White House hastily attempted to frame the Hyde Amendment as antithetical to tough law enforcement. In a statement read on the House floor, the Clinton Administration warned that the reimbursement measure would "create a monetary incentive for criminal defense attorneys to generate additional litigation in cases in which prosecutors have in good faith brought sound charges, tying up the scarce time and resources that are vital to bringing criminals to justice."¹⁰

Deputy Attorney General Eric H. Holder Jr., at an October press conference, was even more cynical and blustery when he opined that the Hyde Amendment was "drastic legislation" that could "cost the taxpayers a fortune in high-stakes payoffs to America's Most Wanted." Holder blatantly ignored the three rather high hurdles that a defendant would have had to clear before recovering attorneys' fees under the original Hyde Amendment: (1) prevailing in the criminal case; (2) no substantial justification for the prosecution; and (3) an award of attorneys' fees would not be unjust. He simply declared that if the bill became law, people such as John Gotti, John Hinckley, and John DeLorean "could wind up with big taxpayer checks."¹¹ Likewise, in an op-ed piece in The Washington Post, former Attorney General Griffin B. Bell invoked the specter of Manuel Noriega taking home a big check from Uncle Sam after his partial acquittal.¹² This parade of imaginary horribles sounded more like scare tactics than serious criticism of the concept.

In opposing the Hyde Amendment, DOJ raised other concerns which paradoxically illustrated just why such a bill was crucial to the fairness of our justice system. DOJ argued, for example, that the amendment would force prosecutors to make decisions "with one eye on their office budget," presumably because awards under the law must come directly from the appropriations made to the prosecuting offices that initiated or maintained the unjustified prosecutions. Further, in a startling bit of hyperbole, the Justice Department argued that "[p]lea bargains that save time and put criminals behind bars could become a thing of the past."¹³ The Department of Justice seemingly was substituting its own vision of expediency for a fair system of justice. After all, it can hardly be disputed that defendants should not be encouraged to plead guilty to meritless charges solely to avoid the economic expense of a trial.

Any deterrent to a vexatious prosecution would seem to be appropriate. Moreover, defendants are always forced to make decisions with one eye on their budgets. If for no other reason, the Hyde Amendment is to be commended for possibly helping to relieve a small part of the economic pressure on a defendant to plead guilty solely to avoid a lengthy and costly trial. If the Hyde Amendment shifts that economic pressure from the individual defendant to the prosecutor's office in a case that the judge finds to be without justification, then that shift would be a benefit, not a drawback.

After DOJ's Fire: What the Law Says
Given the intensity of the Justice Department's opposition to the Hyde Amendment, it was no surprise that when it went to a House-Senate Conference Committee, DOJ was successful in influencing the ultimate language that emerged in the compromise bill. The new law, signed by President Clinton last November is still grounded in the "procedures and limitations" of the EAJA, but explicitly disavows the case law under the EAJA requiring that the burden of proof be on the government.

These procedures and limitations drawn from the EAJA include a 30-day time period after final judgment in which to apply for reimbursement,¹⁴ a maximum of $125 per hour for attorney's fees "unless the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee,"¹⁵ and a restriction that the "prevailing party" does not include individuals with a net worth exceeding $2 million or businesses with a net worth exceeding $7 million or more than 500 employees.¹⁶

What Congress Is Saying
Perhaps the most encouraging language to emerge from the House-Senate Conference Committee is contained in a sentence from the Committee's explanation accompanying the bill: "The conferees understand that a grand jury finding of probable cause to support an indictment does not preclude a judge from finding that the prosecution was vexatious, frivolous, or brought in bad faith."¹⁷ As self-evident as this statement might be (otherwise, the Hyde Amendment would be meaningless), Congress has clearly acknowledged the simple truth that the grand jury process no longer serves its historical protective function and now merely exists as a charging mechanism for the prosecutor's office.

The significance of this congressional acknowledgment cannot be overstated. As William J. Campbell, former Chief Judge in the Northern District of Illinois, put it, "The grand jury is the total captive of the prosecutor, who, if he is candid, will concede that he can indict anybody, at any time, for almost anything before any grand jury."¹⁸ Judicial opinions are rife with frustration about the grand jury process, but trial courts have become largely powerless to provide remedies or deterrence for prosecutorial abuses in cases where there has been an indictment by a grand jury. This became especially true after the Supreme Court held in United States v. Williams that a district court may not dismiss an otherwise valid indictment because the government failed to disclose to a grand jury "substantial exculpatory evidence in its possession."¹⁹

Despite the encouraging language that emerged from the conference committee, the implications of the law are still uncertain for the nearly 7000 defendants who are dismissed or acquitted by federal courts and juries each year.²⁰ It remains for the courts to decide what sort of prosecutorial misconduct rises to the level of "vexatious, frivolous or bad faith." The Supreme Court has established that "bad faith" in the law enforcement context includes a "reckless disregard for the truth."²¹ More recently the Court has affirmed and explained the duty of prosecutors to know about and disclose evidence favorable to a person accused.²² The "vexatious, frivolous or bad faith" standard should thus be interpreted in light of these well-established criminal law precedents, as well as the broad legislative history of the Hyde Amendment evincing an intent to protect citizens from the devastating effects of wrongful prosecutions.

There is a similar standard on the books, not just in EAJA, but also in the Firearms Act governing seizures and related actions. According to that statute, the government is strictly liable for attorneys' fees to prevailing parties in "any action or proceeding for the return of [seized] firearms or ammunition."²³ However, in "any other action" arising under the firearms laws, attorneys' fees can be recovered when the court finds that "such action was without foundation, or was initiated vexatiously, frivolously, or in bad faith."²⁴ There is very little case law interpreting these provisions of the Firearms Act.²⁵ According to practitioners who specialize in firearms law, few defendants are even aware of the attorney's fees provisions, and the mechanism allowing for reimbursement has been underutilized. If the Hyde Amendment is to be effective, it must be widely known and used. Not exploited in the sense conjured by its opponents, but brought to its potential by attorneys filing informed, aggressive, and responsible applications pursuant to the new law.

An Opportunity To Curb Wrongful Prosecutions
For now, the Hyde Amendment should be viewed with cautious optimism. At the very least, it is a legislative mandate for increased judicial involvement in the oversight of the Justice Department. Congress has clearly recognized that there is simply no reason that the very important business of deterring prosecutorial abuse should be confined to the self-policing procedures within DOJ. It has been not only the defense bar, but increasingly the courts, that have expressed their frustration at DOJ's procedures for addressing, much less remedying, abuse.

In a recent California case in which the trial judge found that the prosecution had concealed testimony and lied in court, Judge Alex Kozinski of the Ninth Circuit Court of Appeals expressed his frustration with DOJ's inaction: "Troubled as we are by the prosecutor's conduct, we're more troubled still by the lack of supervision and control exercised by those above him. . . . How can it be that a serious claim of prosecutorial misconduct remains unresolved -- even unaddressed -- until oral argument in the Court of Appeals?"²⁶

Similarly, Chief Judge Richard Posner of the Seventh Circuit Court of Appeals observed, in the context of condemning a campaign of harassment waged by prosecutors against a criminal defense attorney, that "[t]he increase in the number of federal prosecutors in recent years has brought in its train problems of quality control."²⁷

The Hyde Amendment provides at least a toehold for curbing and deterring costly and harmful wrongful prosecutions -- from the outside; adding a check and a balance to the law. At the same time, it provides the individual victims of these prosecutions some redress for the monetary toll exacted upon them. The law is certainly an open book at this point. It remains for lawyers to test it through motions in appropriate cases, and for judges to decide what type of conduct reaches the level of vexatious, frivolous, or bad faith.

Sharon Hogge, a woman recently acquitted by the U.S. District Court for the Southern District of Texas, hopes to become the first beneficiary of the Hyde Amendment. After the court entered an order of acquittal for Hogge based on a lack of evidence to support the charges, she filed a motion for reimbursement of her nearly $200,000 in legal expenses. Hogge's attorney, NACDL member Dick DeGuerin, is seeking litigation expenses from the local U.S. Attorney's office, the FBI, the Department of Defense, and the NASA Inspector General. According to DeGuerin, prosecutors had indicted Hogge, after assuring her that they would not do so, in an inappropriate effort to coerce her to become a government witness.²⁸ Now, DeGuerin urges that reimbursement is due under the criteria set forth in the Hyde Amendment. Diligent defense attorneys should follow Hogge's application, as well as similar motions that are likely to be filed in 1998.

Notes
1. Jim McGee & Brian Duffy, Main Justice 276-77 (1997).

2. Pub. L. No. 105-119, 111 Stat. 2440 (1997). More fully, Section 617 provides:

During fiscal year 1998 and in any fiscal year thereafter, the court, in any criminal case (other than a case in which the defendant is represented by assigned counsel paid for by the public) pending on or after the date of the enactment of this Act, may award to a prevailing party, other than the United States, a reasonable attorney's fee and other litigation expenses, where the court finds that the position of the United States was vexatious, frivolous or in bad faith, unless the court finds that special circumstances make such an award unjust. Such awards shall be made pursuant to the procedures and limitations (but not the burden of proof) provided for an award under [the Equal Access to Justice Act]....Fees and other expenses awarded under this provision to a party shall be paid by the agency over which the party prevails from any funds made available to the agency by appropriation. No new appropriations shall be made as a result of this provision.

3. For example, in 1990, a congressional subcommittee looking into DOJ's internal controls asked the Office of Professional Responsibility what disciplinary action had been taken in each of ten cases in which federal judges had made written findings of prosecutorial misconduct. The panel was informed that "no disciplinary action had been taken in any of the ten cases." H. Rep. No. 101-986, 101st Cong., 2d Sess. 24 (1990). See also Hearing before the Subcommittee on Courts and Intellectual Property of the U.S. House Judiciary Committee, on H.R. 3386 (104th Cong.), September 12, 1996 (Serial Document No. 109) (regarding a bill introduced by Rep. Joseph McDade to outlaw the infamous "Thornburgh Memorandum," and its "Reno Regulation" progeny, which purport to self-exempt federal prosecutors from the state, local, and local federal court rules of ethics by which all other attorneys must abide); H.R. 232 (105th Cong.) (same).

4. Since 1995, the National Association of Criminal Defense Lawyers has urged a federal "Victim Restitution Act that compensates citizens who have been wrongfully prosecuted." See NACDL Legislative Position Statement, "Victims' Restitution Act."

5. See House Backs Measure Exposing Government to Attorneys' Fee Awards in Criminal Cases, 82 Crim. L. Rep. 1019, Oct. 12, 1997.

6. 28 U.S.C. 2412 (1996).

7. Equal Access to Justice Act, Annual Report of the DOJ (1995). According to the most recent report prepared by the Department of Justice, there were 2395 total applications for restitution under the EAJA during fiscal year 1995, of which 2190 were granted. The total dollars awarded in 1995 was roughly $10 million.

8. The Supreme Court has held that "substantial justification" in this context means "justified in substance or in the main -- that is, justified to a degree that could satisfy a reasonable person." Pierce v. Underwood, 108 S. Ct. 2541, 2550 (1988).

9. Annual Report, supra note 7. Due to changes and inconsistencies in reporting methods, however, the Report warns against reliance on the statistics for EAJA applications and awards.

10. See House Backs Measure, supra note 5.

11. Transcript, Weekly Press Availability at Justice Department With Deputy Attorney General Eric Holder, (Oct. 23, 1997).

12. Griffin B. Bell, Lawyer's Bills for Uncle Sam, Wash. Post, Oct. 29, 1997, at A23.

13. Transcript, supra note 11.

14. 28 U.S.C. 2412(d)(1)(B) (1996).

15. Id., 2412(d)(2)(A).

16. Id., 2412(d)(2)(B).

17. Conference Report on H.R. 2267, Nov. 13, 1997 [Committee's Explanation].

18. Judge William J. Campbell, Eliminate the Grand Jury, 64 J. Crim. L. & Criminology 174 (1973).

19. 504 U.S. 36 (1992).

20. According to statistics prepared by the Administrative Office of U.S. Courts, out of the 63,000 defendants handled by U.S. District Courts last year, 400 were acquitted by the court, and 493 were acquitted by jury. Additionally, over 6000 cases were dismissed.

21. See Franks v. Delaware, 438 U.S. 154 (1978).

22. See e.g., Kyles v. Whitley, 514 U.S. 419 (1995).

23. 18 U.S.C. 924(d)(2)(A) (1996).

24. Id., 924(d)(2)(B).

25. But see United States v. Fourteen Various Firearms, 899 F. Supp. 249, 253 (E.D.Va. 1995) (noting in dicta that it is the "intention of 924(d)(2)(B) to permit an award of attorneys' fees only in very limited, specifically articulated instances."). The legislative history of the Hyde Amendment, however, reflects a much broader intention relative to awarding attorneys' fees. See, e.g., Comments of House Judiciary Committee Chairman Hyde, supra note 5 and accompanying text. Compare F.J. Vollmer Co. v. Magaw, 102 F.3d 591, 593 (D.C. Cir. 1996) (overruling the district court's denial of an attorney fee award under EAJA, in a civil proceeding brought against the BATF; holding that the district court had abused its discretion regarding the award in light of BATF's "incredible" position that a semiautomatic rifle receiver was a machine gun receiver because of a previous, no-longer-existing configuration of metal).

26. United States v. Kojayan, 8 F.3d 1315, 1324 (9th Cir. 1993).

27. United States v. Van Engel, 15 F.3d 623, 626 (7th Cir. 1993), cert. denied, 114 S. Ct. 2163 (1994).

28. Telephone interview with Dick DeGuerin, Dec. 19, 1997. See also Deborah Telford, Exonerated, Woman Seeks Repayment, Hous. Chron., Dec. 18, 1997, at A37.

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.¹⁵

Some 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.²⁹

Demand 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."⁴⁷

The 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.⁴⁸

Counsel 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)

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