(H)

Improper Victim Impact Evidence.  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.”[199]  While the United States Supreme Court has upheld the use of the first type of evidence, use of the second class is prohibited.[200] 

 

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.[201]  At a minimum, due process mandates that victim-impact evidence be reliable, and not false or misleading.[202] 

 

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

[200] Ibid.

[201] 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 Evidence Code section 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.

[202] Cf. United States v Serhant, 740 F.2d 548 (7th Cir. 1984) (victim-impact statements contained in pre-sentence 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

SENTENCE " GROUNDS " APPRENDI ERROR IN SENTENCING DEFENDANT UNDER THREE STRIKES LAW ON THE BASIS OF FACTS IN THE PRIOR CASE THAT WERE NOT FOUND TRUE BY A JURY OR ADMITTED AS TRUE BY THE DEFENDANT
Wilson v. Knowles, ___ F.3d ___, 2011 WL 383961 (9th Cir. Feb. 8, 2011)(habeas corpus granted, vacating Three Strikes sentence imposed in violation of petitioner's right to due process under Apprendi v. New Jersey, 530 U.S. 466 (2000), where sentencing court imposed the sentence on the basis of three facts in the prior case that were not found true by a jury or admitted as true by the defendant).

SENTENCE " GROUNDS " APPRENDI ERROR IN SENTENCING DEFENDANT UNDER THREE STRIKES LAW ON THE BASIS OF FACTS IN THE PRIOR CASE THAT WERE NOT FOUND TRUE BY A JURY OR ADMITTED AS TRUE BY THE DEFENDANT
Wilson v. Knowles, ___ F.3d ___, 2011 WL 383961 (9th Cir. Feb. 8, 2011)(habeas corpus granted, vacating Three Strikes sentence imposed in violation of petitioner's right to due process under Apprendi v. New Jersey, 530 U.S. 466 (2000), where sentencing court imposed the sentence on the basis of three facts in the prior case that were not found true by a jury or admitted as true by the defendant).

SENTENCE " GROUNDS " APPRENDI ERROR IN SENTENCING DEFENDANT UNDER THREE STRIKES LAW ON THE BASIS OF FACTS IN THE PRIOR CASE THAT WERE NOT FOUND TRUE BY A JURY OR ADMITTED AS TRUE BY THE DEFENDANT
Wilson v. Knowles, 631 F.3d 1295, 2011 WL 383961 (9th Cir. Feb. 8, 2011)(habeas corpus granted, vacating Three Strikes sentence imposed in violation of petitioner's right to due process under Apprendi v. New Jersey, 530 U.S. 466 (2000), where sentencing court imposed the sentence on the basis of three facts in the prior case that were not found true by a jury or admitted as true by the defendant).

Other

CAL POST CON " PLEA BARGAINING " JUDICIAL INVOLVEMENT
People v. Clancey, 202 Cal.App.4th 790 (Cal.App. Jan. 10, 2012) (trial court's offered sentence was not proper because it was: 1) conditioned on the defendant pleading to all counts and admitting all allegations, and 2) operated as a commitment by the judge to impose the offered sentence or to allow the defendant to withdraw the pleas and admissions).