Judicial reliance on improper victim impact evidence can invalidate a sentence.  There are two types of victim impact statements.  The first describes “the personal characteristics of the victims and the emotional impact on the family,” while the second reports “the family members’ opinions and characterizations of the crimes and defendant.”[373]  While the United States Supreme Court has upheld the use of the first type of evidence, use of the second class is prohibited.[374] 

 

While the first type of victim impact evidence is admissible, the scope of the admissible evidence should exclude emotional evidence that is likely to provoke arbitrary or capricious action, in violation of the Fifth, Eighth, and Fourteenth Amendments.[375]  At a minimum, due process mandates that victim-impact evidence be reliable, and not false or misleading.[376] 

 

[373] Payne v. Tennessee, 501 U.S. 808, 827 (1991); Booth v. Maryland, 482 U.S. 496 (1987).

[374] Ibid.

[375] Gregg v. Georgia, 428 U.S. 153, 189 (1976).  Although these rules have developed in the context of capital sentencing, the rules should apply equally to the non-capital sentencing process.  See also California Evidence Code § 352, which allows for exclusion of evidence where the probative value is exceeded by the danger of undue prejudice or the evidence will result in an undue consumption of time.

[376] Cf. United States v Serhant, 740 F.2d 548 (7th Cir. 1984) (victim-impact statements contained in presentence report were not improper because they were explained in dignified and noninflammatory manner, they were not so numerous as to make rebuttal impractical, defendant was given opportunity to, and did, rebut perceived inaccuracies); Orner v United States, 578 F.2d 1276 (8th Cir. 1978) (no abuse of discretion for prosecutor to read statements of victims where each side had full opportunity to present statements and relevant information, information presented in prosecutor's allocution was not so lengthy as to preclude comprehension and explanation and there was no indication that statements had unique importance in light of defendant's prior record and detailed pre-sentence report, and where defendant neither sought adjournment to prepare reply nor contended that information was false).

Ninth Circuit

POST CON RELIEF " SENTENCE " RESTITUTION " FAILURE TO CONSIDER DEFENSE EVIDENCE
United States v. Meredith, __ F.3d __, 2012 WL 2393194 (9th Cir. Jun. 26, 2012) (Unpublished) (restitution order vacated and remanded for recalculation because the district court failed to consider evidence that defendant presented at sentencing); citing United States v. Najjor, 255 F.3d 979, 985 (9th Cir.2001) (requiring the district court to consider all the evidence pertaining to the restitution order and make an independent determination of the [victim's] actual loss).