Judicial Notebook

Crime victims give victim impact statements to the court in order to describe the effects the crime has had on the victims. Such statements have been controversial. In 1991, the U.S. Supreme Court overturned two previous cases (Booth v. Maryland, 1987, and South Carolina v. Gathers, 1989) to hold that the Eighth Amendment does not pose a "per se bar" to the admission of victim impact testimony (Payne v. Tennessee, 1991). In 2004, Congress passed the Crime Victims' Rights Act (CVRA) which included a provision guaranteeing victims "[t]he right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole hearing." In a recent case, the Ninth Circuit was asked to consider whether this provision specifically "gives victims the right to allocate at sentencing" (Kenna v. U.S. District Court for the Central District of California, 2006).

Kenna's case

W. Patrick Kenna and dozens of others were defrauded in a scheme in which almost $100 million was stolen under the guise of foreign currency market investments. The defendants, father and son Moshe and Zvi Leichner, each plead guilty to a count of money laundering and two counts of wire fraud.

Employing the CVRA "right to be reasonably heard," more than 60 written victim impact statements were submitted for consideration in the Leichners' sentencing. Further, several individuals, including Kenna, personally spoke in court during Moshe Leichner's sentencing hearing about the damage the fraud had on their lives. Moshe Leichner was sentenced to 240 months in prison.

The victims also sought to speak at Zvi Leichner's sentencing hearing three months later. The court denied their request. The court determined that since testimony and statements supplied by the victims during Moshe Leichner's sentencing had already been considered, there was simply not "anything else that could possibly be said." Zvi Leichner was then sentenced to 135 months in prison, almost half of the sentence his co-defendant received. Kenna filed a petition under the CVRA in the U.S. Court of Appeals for the Ninth Circuit, seeking an order vacating Zvi Leichner's sentence and allowing the victims to speak at a new sentencing hearing.

The Ninth Circuit found that Congress had intended the "right to be reasonably heard" under the CVRA to guarantee the right of victims to speak at the proceedings at issue, not merely the right to address the court in some manner (e.g., written or prior statements). The court reasoned that this interpretation would permit crime victims to act as full participants in the legal process, ensure that the impact a crime has on victims is not discounted, force criminals to confront their victims and give victims the chance for closure. The court concluded that the CVRA gives victims "an indefeasible right to speak" at the time of sentencing and the "right to confront every defendant who has wronged them." Accordingly, the court ruled in Kenna's favor and remanded the case to the District Court for further action.

Research questions for psychologists

Kenna not only raises an interesting question about the interpretation of the CVRA, but also a variety of related empirical questions about the effects of victim impact testimony. Most generally, existing research has begun to explore the impact of the presence of victim impact testimony on judgments of blame and on sentencing determinations (see Luginbuhl & Burkhead, 1995; ForsterLee et al, 2004; Myers et al., 2004; Myers et al., 2002). More specifically, psychological research can explore how the content of victim impact testimony influences decision-making (see Myers et al., 2004; Myers et al., 2002; Nadler & Rose, 2003), the effects of the emotionality of the witness giving the testimony (see Myers et al., 2002; Rose et al., 2006), the extent to which victim impact testimony draws increased attention to the characteristics of the victim (see Greene et al., 1998), and how victim impact testimony is integrated with and weighed against other evidence.

The facts of Kenna specifically raise testable questions about the effects the form of victim impact testimony (e.g., written, oral, videotape) might have on the decision-maker (see Greene, 1999). Related questions involve exploring how people express emotional harm in these various forms, the effects of receiving testimony from multiple witnesses or the effects of hearing such testimony on multiple occasions. Additional research might explore the effects of giving victim impact testimony on the victim-witnesses themselves (see Davis & Smith, 1994).

As courts and legislatures consider whether and how to admit victim impact testimony, additional research on these and other questions will undoubtedly be valuable.

Judicial Notebook is a project of APA's Div. 9 (Society for the Psychological Study of Social Issues).