Defendants may be presented at a very late stage with new allegations which they’ve never heard before and are precluded from challenging [Scott Greenfield]
Defendants may be presented at a very late stage with new allegations which they’ve never heard before and are precluded from challenging [Scott Greenfield]
11 Comments
Nicely stated. Victim impact statements are testimony, for the purpose of enhancing the sentencing, presented under the guise of ‘victim’s rights’ (which are not in any way enumerated in the constitution, nor were common at the time the constitution was written).
This victim testimony cannot be cross checked for validity by cross-examination. Is this even presented under oath, such that perjury would even be a check against fabrication or stretching of the truth?
Has any victim ever been subject penalty for lying?
We allow the lawyer for the defendant to plead for leniency because of some supposed problem in the defendant’s upbringing such as he was abused as a child without any proof to the claim. So in other words it is okay for the lawyer to bend the truth but it is not okay for the victim to be able to state how he was impacted by the crime because he may be exaggerating what the effect was.
RN@Is it in fact true that the lawyer for the defendant has the opportunity to introduce claims regarding mitigating factors without the possibility of rebuttal? As I understand it, the prosecution has the opportunity to rebut the defense’s closing argument in its rebuttal, and it is improper for either side to introduce new evidence in closing argument.
Richard, you seem to be arguing that the cure for the plead for leniency due to special circumstances in a felony can be cured by pleading for extra damages in a civil case.
Bob
Bill IANAL so I may be totally wrong about this. What I am referring to is the time period after the defendant has been found guilty and before he is sentenced. I believe his lawyer can introduce mitigating factors to try and get the judge to lessen the punishment. The lawyer can claim that the defendant had a terrible upbringing, was abused, was as alcoholic, etc. I do not believe these claims are subject to verification.
Bob, I was only referring to a criminal case. If you read Scott Greenfield’s post, he talks about victim statements in the content of a Bernie Madoff-like crime which was a criminal case and not a civil case.
This is a nothing issue–typical criminal defense counsel whining.
I think a fair argument can be made that any argument before the Court should be rebuttable, whether they are arguments in aggravation or mitigation. If witnesses are brought in, then there should be the right to confront those witnesses, as set out in the Sixth Amendment. Also in accordance with the Sixth, new allegations should not be permitted.
I have seen a couple of impact statements on court TV a couple of years ago. They trouble me. In one case a maniacal young man slit the trout of a boy just for the hell of it. The killer told the jury he would do it again.
It happened that the boy was best in his class and beloved by all. What i wonder is why that should matter. Even if the boy was a pain in the butt, the killer should be executed as quickly as possible. The killer himself thought that would be the right answer.
Impact statements put a burden on loved ones to put on a good show. I am against them.
To clarify for the sake of accuracy, at the time of sentence, the defense can argue mitigating factors that would not have been involved or proven at trial. The prosecution has the right to demand a Fatico hearing, where the defense will be required to prove its allegations, and the prosecution can both cross defense witnesses and offer its own proof to the contrary. On occasion, a court, even without the objection of the prosecution, will reject the defendant’s claims of mitigation unless he is willing to prove it at the hearing.
The introduction of victim impact allegations would not be subject to the requirements of being proven or be subject to examination.
Been reading a lot of capital cases recently.
In certain jurisdictions, the convicted may make an unsworn statement prior to sentencing, going so far as to deny the crime (although claims of innocence are disallowed in some of the jurisdictions that allow the statement). While subject to rebuttal, the statement is not subject to cross-examination.