This Article examines the use and effectiveness of victim impact statements―a type of victim impact evidence―in criminal cases. These statements may be written or oral and are authorized for use in both state and federal courts. Although impact statements are considered the most simple and frequently used form of victim impact evidence, other evidence used by prosecutors may include professionally produced, edited, narrated, and musically scored videos and photographs designed to incite emotional reactions. These alternative forms of victim impact evidence may carry great potential for subjecting defendants to substantial unfair prejudice.

The Article analyzes selected cases in which courts in various jurisdictions, lacking guidance from the Supreme Court, have attempted to define the limits of what can be presented as victim impact evidence when it contains emotionally charged and perhaps inflammatory pictures or videos and may be substantially and unfairly prejudicial against defendants. The Article analyzes the degree of correlation between perceived benefits and detriments of victim impact statements versus the empirical evidence supporting such conclusions based on studies from the United States and other countries. The Article then presents and discusses the Author’s detailed and comprehensive survey of judges, prosecutors, and public defenders in the Ninth Judicial Circuit of Florida regarding the use of victim impact statements in actual practice. The responses include a number of suggestions from judges and trial lawyers on how to improve the victim impact evidence process and enable those who use, or defend against, this type of evidence to do so more effectively.

The Author concludes that, under normal circumstances, victim impact statements give victims a voice in the criminal justice process and that any perceived detriment is not entirely founded. However, when victim impact evidence consists of videos and photographs that are designed to inflame the emotions of juries and judges, they may carry with them a potential to be unfairly prejudicial. Due to the fact that the Supreme Court has declined to provide guidance to the allowable limits of victim impact evidence, lower courts have been left to the task of setting their own limits, making uniformity across state and federal jurisdictions difficult, if not impossible, to achieve.