By Maureen Castellano
New Jersey Law Journal
July 1, 1996
Making families of murder victims parties in capital cases for the first time, the New Jersey Supreme Court on Friday upheld a controversial statute that allows relatives to testify during the sentencing phase of trials, but subject to a host of newly devised procedural safeguards.
In allowing victim-impact evidence, as mandated under a constitutional amendment enacted last year, the Court avoided a head-to-head battle with the Legislature that might have resulted, in the words of one defense attorney, in a "sure constitutional crisis."
But just as it did in the Megan's Law case last summer, the Court upheld the statute subject to conditions, among them that the victim-impact testimony be limited to one family member, be pre-approved by the trial court, be in writing and not include opinions about the defendant, the crime or the sentence that should be imposed.
The Court split 4-1-2 on Friday's ruling, with the majority deferring to the Legislature and the electorate in upholding the statute. The two dissenters thought the procedural safeguards inadequate to overcome constitutional deficiencies, while another justice -- who concurred in the result -- found procedural problems.
The ruling was lauded as a significant victory by the attorney general's office, the state Prosecutors' Association and victims' rights advocates, who say it will restore the victims' place in a system they contend is obsessed with protecting defendants' rights.
Even defense attorneys voiced guarded praise for the ruling, saying the due process protections mandated by the Court will prevent the introduction of victim-impact statements that are grossly inflammatory or unduly prejudicial.
"I suppose that if we had to get a losing opinion, this is the one to get," says Assistant Deputy Public Defender Stephen Kirsch, who had argued the case before the Court in February on behalf of a Newark man indicted on capital murder charges for the April 1995 death of 8-year-old Jakiyah McClain. State v. Rasheed Muhammad.
"We would have preferred the statute to be stricken as unconstitutional," Kirsch says, "but they did put an awful lot of procedural safeguards in here."
The 42-page decision reversed a trial court's holding last November that the statute, N.J.S.A. 2C:11-3c(6), violated federal and state due process guarantees. Essex County Superior Court Judge Donald Coburn had ruled that the law failed the evidentiary probative-prejudice balancing test and would require "mental gymnastics" by some jurors, who would hear the statements but be asked to disregard them.
The Court's ruling will allow a victim's family to testify during the sentencing phase of a capital trial about the victim's life and the impact of the victim's death on his or her family.
Restrictions Abound
Such testimony, however, will be severely limited by the restrictions set forth by the Court. Among them:
* Such testimony may be given only in cases in which the jury finds that the state has proven at least one aggravating factor beyond a reasonable doubt and in which the jury finds the existence of a mitigating factor pursuant to N.J.S.A. 2C:11-3c(5)(h), the "catch-all" proviso that allows mitigating factors "relevant to the defendant's character or record or to the circumstances of the offense."
* Only one victim-impact witness can be called, and that witness must be an adult. No minors shall be allowed to testify unless there is no adult survivor.
* The family member's testimony must be in writing and must be pre-approved by the trial judge. The family member must stick to the statement and not introduce additional testimony.
* The impact statement may not include any testimony regarding the family member's opinions about the defendant, the crime or the appropriate sentence.
* A Rule 104 (formerly Rule 8) hearing must be conducted outside the presence of the jury before any statement may be made. The trial judge must use the hearing to make a preliminary determination as to the admissibility of the statement.
* The state must notify the defendant before the penalty phase that the state plans to introduce a victim-impact statement if the defendant asserts the catch-all provision. The state also must provide the name of any witness who may be called so the defendant can interview that witness prior to the testimony being given.
Reluctant Change in Stance
In upholding the constitutionality of the statute, the Court backtracked on its longstanding position rejecting the use of victim-impact statements in capital cases.
But that stance clearly was changed with reluctance, and only then, as is obvious from Justice Marie Garibaldi's majority opinion, because of the constitutional amendment enacted last year.
"To hold the victim-impact statute unconstitutional would require us to ignore the Victim's Rights Amendment and the will of the electorate that overwhelmingly approved the constitutional amendment," Garibaldi wrote.
She added: "In the absence of the Victim's Rights Amendment, we might have continued to hold that victim-impact evidence should not be admitted during the sentencing phase of a capital case. However, the electorate ... and the Legislature ... have mandated that victim-impact evidence be admitted."
Garibaldi also noted that the U.S. Supreme Court had cleared the way for the use of victim-impact statements in capital trials. In its 1991 decision in Payne v. Tennessee (1991), the Court overruled its prior rulings and held that the Eighth Amendment of the federal Constitution does not bar a capital sentencing jury from receiving victim-impact evidence.
Still, the Court obviously was leery of any decision to allow such testimony. Garibaldi flatly wrote that the Court "may have drafted the victim-impact statute differently" if it had its druthers. But she notes that the Court has no license to rewrite the statute.
Justices Stewart Pollock and James Coleman Jr., and Chief Justice Robert Wilentz, joined in Garibaldi's opinion upholding the statute's constitutionality.
But in a concurring opinion, Wilentz nevertheless expressed his "misgivings" about allowing victim-impact testimony in capital trials. In his opinion, just three pages long, Wilentz put forth his view that such evidence "has no place in a rationally conducted sentencing proceeding."
"It is a throwback, at least potentially, to the days when the death penalty could be imposed arbitrarily, without reason, much like being struck by lightning," Wilentz wrote. The chief justice, however, said he could not find the statute unconstitutional.
In a separate opinion, Justice Daniel O'Hern concurred that the statute was not unconstitutional. But he said he believes that the use of victim-impact evidence should not be limited to cases in which a defendant has pleaded the catch-all mitigating factor.
He further wrote that victim-impact statements may encumber a defendant's right to present mitigating evidence to the jury, forcing defense attorneys to "shoehorn" mitigating evidence previously introduced under the catch-all factor into one of the other mitigating factors allowed under the statute, where it doesn't belong.
Dissents Find Safeguards Inadequate
Justices Alan Handler and Gary Stein filed separate dissenting opinions in the case, stating that the statute as written, even with the procedural safeguards mandated by the Court, is unconstitutional.
Handler's key concerns were that the statute will create a procedural nightmare, as envisioned by the trial court, and will create an unacceptable risk that the death penalty will be imposed in an "invidious and discriminatory" manner.
Stein's dissent focused on issues that were raised in the arguments before the Court, but sidestepped in the majority's ruling. Stein wrote that allowing victim-impact evidence would be to invite the jury to compare the value of victim's life and the defendant's life, in an analysis that could predicate the verdict on the relative worth of the victim.
Public Defender Kirsch, who calls the Court's vote count "interesting," says he believes the statute almost didn't make it past the Court's review. Says Kirsch, "The fourth vote in the case was the chief justice's and he obviously didn't go along with it very willingly."
Amicus attorney Jean Barrett, who argued the case on behalf of the Association of Criminal Defense Lawyers of New Jersey, contends that Wilentz likely voted to uphold the statute's constitutionality to avoid an ugly battle with the state Legislature -- and to ensure that the Court had a say in how the statute was implemented.
"If they [the justices] had overturned this, it would have created a constitutional crisis," says Barrett, of West Orange's Ruhnke & Barrett. "There would have been an enormous battle," she says. And, she says it's a battle the Court likely would have lost, given "the tenor of the times" and the overwhelming public support for establishing more rights for victims.
"Practically," Barrett says, "the only way for the Court to control the use of this evidence was to create procedural safeguards to govern its use. They couldn't have done that if there was a constitutional battle and they lost."
All that isn't to say that Barrett was happy about the Court's ruling, which she calls "ludicrous and contradictory." Says Barrett of the victim-impact statement statute: "The whole thing completely undermines the fairness of death penalty litigation."
She says that while the procedural safeguards put in place will "take the sting out of the emotional content of these statements," defendants will still be unfairly prejudiced by victim-impact evidence.
Victim Valuation
Both Barrett and Kirsch also argue that the Court ignored, perhaps intentionally, their arguments that allowing any victim-impact evidence at all invites juries to value one victim over another.
"It still makes the killing of certain victims more important than the killing of others," says Kirsch.
That argument is expected to become an issue in one of the first trials in which victim-impact evidence will likely play a key role.
Mercer County prosecutors had been waiting for this ruling before pressing on to a trial for Jesse Timmendequas, the convicted sex offender facing a capital murder charges in the death of 7-year-old Megan Kanka of Hamilton Township, for whom "Megan's Law" was named.
The proceedings involving Timmendequas, before Judge Andrew Smithson, had been stayed pending the outcome of the Muhammad case, according to First Assistant Mercer County Prosecutor Kathryn Flicker. "That was the main thing holding us up," she says.
Flicker says of the Court's decision: "It will allow a member of [Megan's] family -- probably Maureen Kanka, [Megan's mother] -- to talk about the impact of Megan's death."
Both Kirsch and Barrett say that this ruling will not end the litigation over victim-impact evidence -- far from it. "Even with the safeguards," says Kirsch, "we're going to be challenging it [the statute] to some degree. I'm sure there will still be a lot of issues raised as we proceed with these cases."
Prosecutors says such predictions probably won't prove true. Deputy Attorney General Catherine Foddai, whose arguments the Court appeared wholeheartedly to adopt, contends that both the statute and the Court's ruling will allow victim-impact statements to be used only "in a very limited way."
"I think the Legislature and the Court have been very, very careful to preserve the defendants' rights," Foddai says. "Those safeguards will remove any possibility that the statements [made by family members] will be unduly prejudicial."
Foddai says the Rule 104 hearings will prove crucial in ensuring that victims be heard without prejudicing the jury. "You're going to have a dry run," Foddai says. "At the Rule 104 hearings, the person [giving the statement] will go over their testimony and the judge will have an opportunity to approve it. That should eliminate any problems."
Assistant Essex County Prosecutor John Redden, who is handling the prosecution of 29-year-old Rasheed Muhammad in the McClain murder case, calls the ruling "a significant victory for victims and prosecutors -- and for the system, given that juries will for the first time hear evidence about the uniqueness of each victim."
He, like Foddai, says any concerns raised in the introduction of victim-impact testimony can be addressed by the trial judge in issuing the jury charge.
In the majority ruling, Garibaldi says the Court -- recognizing that jury instructions in these cases will be "more complex" -- has requested that its Trial Judges Committee on Capital Causes draft "appropriate instructions" consistent with the Court's opinion here.
Both Barrett and Kirsch say they don't believe there is any way to draft a jury charge that will prove sufficient in addressing these issues. Says Barrett: "I feel sorry for the trial judges who have to implement this."
(New Jersey Law Journal is an affiliate publication of Court TV.)
Copyright 1996 American Lawyer Media)
