Should Defendants Have a Right to Cross-Examine Victims Who Make Impact Statements?

Paul Cassell and Edna Erez think not.  Their reasoning is set forth in an interesting new article, “Victim Impact Statements and Ancillary Harm: The American Perspective,” 15 Can. Crim. L. Rev. 149.  Apparently, Canadian law provides such a right, but the dominant view among the American states seems to be to the contrary.  Among other helpful contributions, Cassell and Erez provide a comprehensive 50-state survey of the relevant law.  Although the statutory law of most states is silent on this question, Cassell and Erez find that the case law, while still developing, is inclining against cross-examination.

The authors applaud this trend.  Their reasoning rests on three considerations.


First, they argue that sentencing courts benefit from the information that victims provide, and the threat of cross-examination may deter some victims from providing impact statements.

Second, they argue that making an impact statement can provide important psychological benefits for a victim, but tough cross-examination may negate these benefits and even exacerbate the underlying harms from the crime.

Finally, they analogize the victim’s impact statement to the defendant’s allocution and argue that the victim should not be subjected to cross-examination if the defendant is not.

These are all reasonable points, and I tend to agree that they provide good support for the no-cross-examination rule in the federal system.

But I’m a little more skeptical that this should be an across-the-board rule in state systems.

To my mind, the key may be whether there is a thorough presentence investigation report, advance notice to the defendant of the factual considerations that are likely to determine the severity of the sentence, and a fair opportunity for the defendant to obtain and present evidence in response to any relevant, contestable factual assertions made by a victim.

When these conditions are satisfied, the ability to cross-examine a victim probably contributes little to the fairness and accuracy of sentencing decisions, so the countervailing concerns about “secondary victimization” seem comparatively more weighty.  When the conditions are not satisfied, however, we should be more concerned about the possibility that defendants will be sentenced based on inaccurate fact-finding or otherwise ill-considered responses to emotionally wrenching impact statements.

The conditions, I think, tend to be more-or-less well-satisfied in the federal system, but may be much less so in some state systems.

I appreciate that the threat of cross-examination may deter some victims from testifying, but not all victim testimony adds reliable, relevant information to the proceedings, and even accurate testimony may sometimes prove counterproductive insofar as it draws attention away from more relevant considerations.  In our legal tradition, adversarial cross-examination has traditionally been regarded as a useful corrective to these sorts of difficulties.  From a truth-finding standpoint, it strikes me as quite speculative to think that the costs of cross-examination (possible deterrence of testimony from victims who have reliable, relevant things to say) necessarily outweigh the benefits.  To be sure, when there has been a good presentence investigation and the defendant has other basic due process rights in connection with the sentencing (fair notice of key issues, diligent presentencing representation, etc.), the marginal benefits of cross-examination are probably minimal.  But otherwise, I might be inclined to strike the balance where we have traditionally struck it in our criminal trials: testimony is not considered sufficiently reliable to be used against the defendant as a basis for imposing punishment unless it is subjected to the rigors of cross-examination.

I may also be somewhat less impressed by the concerns over secondary victimization than Cassell and Erez.  Conventional wisdom has it that defense lawyers should and do treat sympathetic victims with kid gloves.  As to unsympathetic victims, well, in some cases, there are good reasons to test the reliability of their statements with close questioning.  (See my post here on the high degree of overlap between victim and offender populations.)  In all events, judges can control the scope and tone of questioning in the same way that they do during trials, preserving the basic ability to test the reliability of testimony while preventing out-and-out harassment.

I don’t mean to suggest that the secondary victimization concerns should be entirely discounted.  But I do think we should be wary of making policy based on a desire to prevent highly sympathetic victims from being humiliated by vicious cross-examination, when this might actually be a comparatively rare phenomenon.  If there are particular categories of victims as to whom the risks are especially great, then perhaps narrowly focused rules could be crafted to deal with the problem, as we have done with rape-shield laws.

Finally, there is the analogy to the defendant’s allocution: if the defendant is spared cross-examination by the prosecutor, then shouldn’t the victim be spared cross-examination by defense counsel?  But perhaps the analogy cuts in the other direction: maybe both sides should be subject to cross-examination, instead of neither.  And, indeed, allocuting defendants not infrequently face some tough judicial questioning.

At a deeper level, though, it may be that the defendant’s allocution serves a fundamentally different purpose than the victim’s statement.  The point of allocution is determine whether and how well the defendant is able to conform to the ideal of the contrite offender.  (See my post here.)  The defendant is giving a performance that is to be graded, not offering information in order to establish historical facts.  The victim’s statement, though, is — in large part, anyway — about determining certain historical facts regarding the impact of the crime.  Cross-examination may contribute to accuracy in this fact-finding.

To be sure, we might think about the victim as delivering a performance, too.  And we might think about grading that performance based on how well the victim conforms to our ideals of how victims should act and feel.  But I doubt anyone really wants such an evaluation to be part of the sentencing process.  For one thing, there is probably no consensus on what the ideal victim’s attitude is (vengeful?  forgiving? disinterested?).  For another, the question seems to have little relevance to the real matter at hand — the determination of what sentence to impose on the defendant.  Treating the defendant’s allocution in a procedurally different manner than the victim’s impact statement is not unfair discrimination, but an appropriate distinction that underscores that it is the defendant’s, not the victim’s, ability and willingness to conform to social expectations that is at issue.