Laura Curry’s student comment, The Elusive Right to Cross-Examine Individuals Presenting Victim Impact Statements in Arizona Capital Sentencing Proceedings, will be published in the upcoming summer 2011 edition of the Arizona State Law Journal. Here is a brief summary.
During the late 1970s and early 1980s, victim impact statements emerged as a topic of national significance as part of a broader Victims’ Rights Movement. Many states heard the call for victim impact statement legislation, and followed by passing statutes and constitutional amendments guaranteeing victims the right to be heard at sentencing. Of the thirty-four states with the death penalty, thirty-two currently allow victim impact evidence to be heard at capital sentencing proceedings. Arizona, however, is the only state that has adopted and applied a statute explicitly stating that victim impact statements at capital sentencing proceedings are not offered as witness testimony and not subject to cross-examination. Recent United States Supreme Court decisions regarding death penalty and Confrontation Clause jurisprudence raise serious questions as to the constitutionality of this statute under the Sixth and Eighth Amendments.
This comment argues that those offering victim impact statements in capital sentencing proceedings should be subject to cross-examination, and that Arizona’s current death penalty statute denies defendants their Sixth Amendment rights. It first describes the United States Supreme Court’s treatment of victim impact testimony, and how different states have codified legislation in response to the limited acceptance expressed in Payne v. Tennessee. It next considers general Confrontation Clause rights, and how recent United States Supreme Court decisions suggest that they should be extended to the sentencing phase of capital proceedings. Finally, it examines how Arizona has applied the holding in Payne, and the way in which Arizona’s statutory scheme prohibiting cross-examination is in direct conflict with the Payne Court’s rationale for allowing its admission.
As the legal definition of testimonial evidence continues to evolve, this comment adds another facet to the debate. It identifies a problematic area of Arizona capital sentencing law, and highlights a potential objection that Arizona capital defense attorneys could choose to raise in their cases.