Should Graphic Testimony About 9/11 Have Been Heard By the Moussaoui Sentencing Jurors?The Continuing Controversy over the Use of Victim Impact Evidence

Throughout this week, jurors in the death penalty trial of Zacarias Moussaoui have been listening to testimony about the terrible experiences of dying victims -- testimony from both their family members and the emergency response workers who tried so valiantly to help reduce the carnage from the worst terrorist attack in U.S. history. Even the haunting voices of victims themselves, captured on 911 calls, have been heard.

The recounting of the stories of loved ones lost in the suffocating heat and smoke of the Twin Towers and the Pentagon has been heart-stoppingly powerful, and for family members, it seems, a useful catharsis. Through the tears and grief, the witnesses seem as though they are inching towards at least some partial and imperfect reconciliation with the cruelty visited upon them by the suicide hijackers.

But this phase of the trial - with its terrified cries for help from lost mothers and fathers, its tales of immeasurable bravery and incalculable loss - still raises a troubling legal question: Is this any way to decide whether to kill a man?

Victim Impact Evidence: The Arguments For and Against Its Use

Not that long ago, the Supreme Court's answer to this question had been "no." In the 1987 case Booth v. Maryland, a closely divided Court had declared it unconstitutional for prosecutors to use what is known as "victim impact evidence" when seeking the death penalty.

But Chief Justice William Rehnquist considered Booth an abomination - one that he would never accept as settled precedent. And in 1991, after Justice David Souter replaced Justice William Brennan, Rehnquist amassed a majority to overturn Booth. In Payne v. Tennessee, a majority of the Court restored victim impact evidence as an acceptable (indeed, common) aspect of capital sentencing proceedings.

There is basically no chance that the current Court will revisit the victim impact debate yet another time. But the wisdom of letting prosecutors present the testimony grieving family members -- and even the disembodied voices of the dead -- before capital jurors remains a vexing question. And as the jury deliberates over Moussaoui's fate, it is worth revisiting the pros and cons of judging whether someone deserves to live or die based on the loss suffered by those who knew and loved the victim.

Rehnquist's majority opinion in Payne effectively described the value of victim impact evidence. Excluding such evidence, he wrote, deprives the state of "the full moral force" of its case for the death penalty and turns "the victim into a faceless stranger."

Opposing the practice, Justice Stevens was equally succinct: Victim impact evidence, he wrote, is "irrelevant to the defendant's moral culpability." It inevitably diverts the focus of capital sentencing away from a rational evaluation of the severity of the crime and the heinousness of the defendant's conduct, and toward an emotional assessment of the social value of the defendant's victims.

Who Is Right In the Victim Impact Evidence Debate that Divided the Court?

There is merit to both sides of this argument, at least for anyone who is not a death penalty abolitionist.

The death penalty is, to me, most persuasively justified as a moral statement of communal outrage - a punishment that reaffirms the social contract by declaring some conduct so reprehensible, so "inhuman," that its perpetrator no longer deserves to live.

In the context of such a communal condemnation, it seems perfectly fitting and appropriate to permit members of the community to describe for their peers on the jury the full measure of what the defendant has, in some sense, cost them all.

It is hardly unusual in the law for consequences to matter. For instance, a murder is punished more harshly than an attempted murder, even if the difference between the two was merely bad aim.

And it is hard to see why the consequences to friends, family, and society as a whole should not matter. The law typically does not judge conduct in a vacuum; it puts it in context for jurors to consider.

Rehnquist was also not wrong to suggest that exiling the victims and their families from the capital sentencing process is artificial and perhaps, as he saw it, dehumanizing. One purpose of the criminal law process surely should be the achievement of some measure of closure for both the immediate circle of the victim, and society more broadly. Victim impact testimony creates an avenue for participation of those most deeply aggrieved, and thus furthers this goal.

On the other side, however, Stevens's points are also well taken. While the emotions of outrage and even vengeance will inevitably play a role in capital sentencing, ultimately it is a process that ought to be guided by a reasoned assessment of whether the defendant's conduct was truly so extreme that it merits the ultimate punishment. Victim impact evidence, by injecting the most searing and irrebuttable grief into to the courtroom, makes this rational calculus much more difficult to achieve.

No less important, victim impact evidence carries with it an inherent risk of discrimination. In determining whether a defendant should die for his (or her) crimes, should it matter whether the victim was part of a loving family or popular at school? Of course it shouldn't.

Yet by its very nature, victim impact evidence seems to invite a "valuation" of the victim as part of the sentencing process. And that opens the door to all kinds of inappropriate considerations, including the possibility that some jurors in some places will value victims of one color, ethnicity, or religion more than victims of another color, ethnicity or religion. Careful statistical studies of capital sentencing tell us this is more than just a risk; it is reality.

There is also some danger in the close alliance that tends to form between prosecutors and the families of victims in part as the result of victim impact evidence playing a prominent role at sentencing.

To be sure, prosecutors should be sensitive to the cares and sensitivities of victim's families in their handling of cases. There is, of course, no group that cares more about seeing justice done than those who were close to the victim - and that is a position prosecutors must respect and honor.

At the same time, however, ours is not a system of private prosecution. Criminal cases are brought on behalf of the State - the community whose laws and membership have been violated - not on behalf of individuals.

At times, the interests of victims and the interests of the State itself may somewhat diverge - and it is a prosecutor's job to keep the State's interests at the forefront. Yet the process of working with victim impact witnesses can cloud prosecutorial judgment in this regard.

How the Moussaoui Trial Illustrates the Two Sides of This Important Debate

The pros and cons of victim impact evidence have come into fearful collision in the Moussaoui trial.

The searing testimony has restored to our collective memory the shock and devastation of that terrible morning - and the horrifying nature of what the terrorists did. It helps answer the question of why the defendant has qualified to face a death sentence in this case. Moreover, from what an outsider can tell, the witnesses appear to be comforted by their participation, and by the way the victims - their loved ones - have returned from the great beyond to retell their last moments for the jury.

But it is very hard to escape the feeling that this solemn and, in some ways, salutary process has become disproportionate and misdirected.

How can any juror make a rational judgment about Moussaoui's own level of culpability in the crime after hearing day after day of such wrenching testimony?

With the exception of Moussaoui's own belatedly-offered self-incriminating testimony - testimony that Findlaw columnist Elaine Cassel effectively showed to be highly suspect -- the evidence in this case shows that this defendant - albeit an al Qaeda member -- had little to do with, and little knowledge of, the events of 9/11. Yet in all likelihood, he is going to be sentenced to death on the basis of the emotion-laden victim impact testimony from the events of that day.

I sympathize with the prosecutors. The burden of being, in effect, the victims' representatives in this case surpasses in difficulty even the role played by the prosecutors in the Oklahoma City bombing case.

But one has to wonder whether the nation's interests are being well-served by foisting upon this despicable, but also unstable and pathetic defendant a largely unproven burden of blame for one of the worst crimes history has known.

At the highest reaches of the Justice Department, someone should be saying that - despite the headlines and riveting narratives from the trial, and despite the truth that national catharsis is a worthy purpose -- a false catharsis may prove cheapening to us all.