The Capital Jury and Empathy: The Problem of Worthy and Unworthy Victims

28 Pages Posted: 9 Dec 2002

See all articles by Scott E. Sundby

Scott E. Sundby

University of Miami School of Law


Much debate and speculation has taken place over whether juries should be allowed to consider evidence concerning the victim in making their capital punishment decision. While an understanding of how capital juries use victim evidence cannot by itself resolve the debate, such an understanding can help better focus the moral and legal issues that are at stake. A review of the Capital Jury Project data from California suggests that capital juries are influenced by victim evidence, at least to the extent that the evidence pertains to the victim's actions leading up to the crime. A randomly chosen victim appears to tilt the jury towards a death sentence, both because juries see a defendant who preys upon a randomly chosen victim as the most dangerous and depraved of criminals, and because jurors are most likely to empathize with a victim who is engaged in everyday activities. By contrast, a victim who is engaged in high-risk or anti-social behavior leading up to the crime is less likely to invoke an empathetic response from the jury or to provoke a sense of outrage, which, in turn, appears to make the jury less inclined to impose a sentence of death. These findings suggest, therefore, that even without the formal admission of Victim Impact Evidence (VIE) at the penalty phase, victim evidence from the guilt phase will play a role in the sentencing decision, an effect that Justice Souter predicted in his Booth concurrence. Further research is needed to determine whether VIE has its own independent effect on the jury's sentencing decision or mainly serves to reinforce the jury's sentencing inclination coming out of the guilt phase. The indication that jurors are likely to empathize with certain victims also highlights the need to determine whether such empathy is limited to the victim's role in the crime (a factor the criminal law has traditionally accepted as legitimate) or extends further to illegitimate factors such as race and socioeconomic status.

Suggested Citation

Sundby, Scott E., The Capital Jury and Empathy: The Problem of Worthy and Unworthy Victims. Available at SSRN: or

Scott E. Sundby (Contact Author)

University of Miami School of Law ( email )

1311 Miller Dr.
Coral Gables, FL 33146
United States
305-284-5848 (Phone)

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