The recent sentencing hearings for U.S.A. Gymnastics doctor Larry Nassar showed the power of victim impact testimony. Victim after victim testified about Nassar’s abuse and the harm it has caused. Today’s post covers the appropriateness of that type of testimony in North Carolina.
North Carolina law encourages victim impact testimony. The North Carolina Constitution includes a Victims’ Rights Amendment that gives victims the right “to be heard at sentencing of the accused in a manner prescribed by law . . . .” N.C. Const. Art. I, sec. 37.
The implementing statute for the constitutional provision is G.S. 15A-833, which says that a victim “has the right to offer admissible evidence of the impact of the crime, which shall be considered by the court or jury in sentencing the defendant.” That evidence may include a description of the injuries (physical, psychological, or emotional) the victim has suffered as a result of the offense, an explanation of any economic or property loss it caused, and a request for restitution. G.S. 15A-833.
Law enforcement agencies and prosecutors should make a reasonable effort to assure that each victim of a crime has a victim impact statement prepared for consideration by the court. G.S. 15A-825(9). No victim is required to offer evidence, but the court is not to draw any inference from the victim’s decision not to testify. The victim’s testimony may be offered through a representative of the district attorney’s office or a law enforcement officer, but only at the victim’s request and with the consent of the defendant. G.S. 15A-833(b). [Citation corrected.]
Something that isn’t crystal clear under North Carolina law is the extent to which victims of conduct aside from the defendant’s crime of conviction may offer victim impact evidence at sentencing. In the Nassar cases, most of the victims who testified were victims of related but unconvicted conduct.
In North Carolina, our Crime Victims’ Rights Act appears to be built around an offense-specific definition of “victim.” It makes no express statement that victims of related conduct are entitled to testify. But just because those victims may not have a right to testify does not mean that they can’t be called as witnesses. Under G.S. 15A-1334, the State may present witnesses relevant to the sentencing decision. Witnesses may also be called by the court or by the defendant. The parties are entitled to cross-examine one another’s witnesses, but aside from that the process is intended to be informal. The rules of evidence do not apply, and our appellate courts have written in favor of a broad inquiry at sentencing. State v. Pope, 257 N.C. 326 (1962). So it would seem that testimony from other victims would be permissible, even if not allowed as of right.
Nevertheless, our appellate courts haven’t squarely considered the question. In State v. Barnett, 223 N.C. App. 450 (2012), the defendant was convicted of raping one victim. At sentencing, the court also considered victim impact testimony from two others who were not prosecuting witnesses, but who claimed to be victims of similar conduct by the defendant. On appeal, the defendant argued that the court violated his due process rights by allowing victim impact testimony from persons other than the victim of the crime of conviction. Because the defendant cited no authority in support of the argument, the court of appeals declined to address it. Id. at 458. The court later said it found no error in allowing the testimony, “because, even if it was error to allow victims other than the prosecuting witness to give victim impact testimony, Defendant has failed to show that the trial court in fact considered their testimonies in sentencing him.” Id. at 459. So, not a prohibition on the practice—but not exactly a ringing endorsement.
Courts in other states with statutes similar to ours have reached different conclusions about whether victims of related but unconvicted conduct may testify at sentencing. For example, the Wyoming Supreme Court concluded that the state’s victim impact statute refers only to the victim of the crime of conviction, but the court nonetheless allowed testimony from other victims under more general rules about the broad scope of a trial judge’s inquiry at sentencing. Mehring v. State, 860 P.2d 1101 (Wyo. 1993). In Iowa, by contrast, the supreme court held that a trial judge erred by considering evidence of extraneous offenses when doing so wasn’t authorized by the state’s victims’ rights statute. State v. Matheson, 684 N.W.2d 243 (Iowa 2004) (“Authority to submit impact statements is authorized under Iowa Code section 915.21 and is wholly statutory.”).
It is important to remember what use the court may permissibly make of the victim impact evidence it hears. Unless offered in support of a properly noticed or charged aggravating factor that is ultimately admitted to or proved to a jury beyond a reasonable doubt, the testimony alone would not allow a sentence from the aggravated range. Rather, it could be used to inform the court’s discretion on matters that don’t require any particular factual findings, like the selection of a minimum sentence within a range, the choice between prison and probation, or a decision to impose consecutive sentences.
The case law offers two final bits of additional guidance with respect to victim impact testimony. First, in general, a victim impact statement advocating a particular sentence is “a practice not to be encouraged”—but one that does not ultimately constitute reversible error. State v. Williams, 116 N.C. App. 225 (1994) (quoting State v. Jackson, 91 N.C. App. 124 (1988)). And finally, the court should take care to consider victim testimony without exhibiting a pro-victim bias. In State v. Hendricks, 138 N.C. App. 668 (2000), the defendant argued that his sentencing hearing was unfair when the trial judge said, “Today is a classic example of why victims need to be recognized and the court system needs to become their friends, not their enemy.” The court of appeals concluded that the statement did not manifest a bias against the defendant, but rather showed nothing more than “an affinity for the use of victim impact statements, a procedure that is specifically endorsed by our statutes.” Id. at 672.
My colleague Christopher Tyner helped me research and think about this topic.