Full opinion text
MEMORANDUM AND ORDER CONCERNING TRIAL RULINGS WOLF, District Judge. TABLE OF CONTENTS I. INTRODUCTION.173 II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY.174 III. THE FEDERAL DEATH PENALTY ACT.175 IV. PROCEDURAL PROTECTIONS AFFORDED BY 18 U.S.C. § 3432.176 V. EVIDENTIARY RULINGS RELATING TO PHOTOGRAPHS.177 A. GENERAL STANDARDS.177 B. APPLICATION OF STANDARDS TO GOVERNMENT’S PROFFERED EVIDENCE.178 VI.EVIDENTIARY RULINGS RELATING TO BLOODY CLOTHING.184 VII. VICTIM IMPACT EVIDENCE. <£> oo t — t A. GENERAL STANDARDS. CO CO rH B. APPLICATION OF STANDARDS TO THIS CASE Cr-00 rH VEIL EVIDENCE RELATING TO OTHER CAPITAL PROSECUTIONS.193 IX. THE COURT’S AUTHORITY TO REVIEW THE SUFFICIENCY OF THE GOVERNMENT’S EVIDENCE.198 X. ESPECIALLY HEINOUS, CRUEL OR DEPRAVED MANNER OF COMMITTING THE OFFENSE . to o to A. SERIOUS PHYSICAL ABUSE. to o ^ B. TORTURE... to o 05 C. SUFFICIENCY OF THE EVIDENCE AS TO • SERIOUS PHYSICAL ABUSE .:. o CM D. SUFFICIENCY OF THE EVIDENCE AS TO TORTURE .... 00 o CM XI. SUBSTANTIAL PLANNING AND PREMEDITATION . to O ÍD A. DEFINITION. to O o B. SUFFICIENCY OF THE EVIDENCE...'.. to H H XII. VULNERABLE VICTIM. CM •H CM A. DEFINITION. CO T — ( CM B. SUFFICIENCY OF THE EVIDENCE.■. ■'ñt T — i CM XIII. OBSTRUCTION OF JUSTICE.■. to I — cn A. DEFINITION. to I — cn B. SUFFICIENCY OF THE EVIDENCE. to H 05 XIV. FUTURE DANGEROUSNESS. to H -3 A. JURY INSTRUCTIONS. to to CO B. EVIDENTIARY RULINGS RELATING TO GOVERNMENT’S PROFFER.. to to C. SUFFICIENCY OF THE EVIDENCE. to to cn D. EVIDENTIARY RULINGS RELATING TO DR. MARK CUNNINGHAM.'. to to 05 XV. MITIGATING FACTORS AS QUESTIONS OF LAW OR FACT.228 XVI. JURY INSTRUCTIONS RELATING TO MITIGATING FACTORS. cm CO CM A. STATUTORY MITIGATING FACTORS RELATING TO MENTAL CONDITION-. cm CO CM B. NON-STATUTORY MITIGATING FACTORS RELATING TO MENTAL CONDITION. co CO CM C. OTHER MITIGATING FACTORS. ^ CO CM XVII. INSTRUCTIONS RELATING TO THE WEIGHING PROCESS.234 XVIII. INSTRUCTIONS RELATING TO FAILURE OF THE JURY TO REACH A UNANIMOUS VERDICT.-.240 XIX. ISSUES RELATING TO FEDERAL RULE OF CRIMINAL PROCEDURE 12.2.'...:. CM A. SUFFICIENCY OP SAMPSON’S RULE 12.2 NOTICE. CM B. CONTENT OF SAMPSON’S RULE 12.2 NOTICE . Cm CM C. DESIGNATION OF FIRE-WALLED ASSISTANT UNITED STATES ATTORNEYS. CO "'st CM D. ADVANCE NOTICE TO THE DEFENDANT OF GOVERNMENT TESTING.:.:. to -"ñF CM E. TAPE-RECORDING OP GOVERNMENT’S TESTING CO "’ñP CN XX. ORDER.248 I. INTRODUCTION On January 29, 2004, pursuant to the jury’s verdict, this court sentenced the defendant, Gary Sampson, to be executed on each of two counts of carjacking resulting in death in violation of 18 U.S.C. § 2119(3). See 300 F.Supp.2d 275 (D.Mass.2004). This death sentence is the first imposed in the District of Massachusetts or any other district within the First Circuit since Congress and the President reinstituted a federal death penalty in 1988. Consequently, as this case was being tried, the court found that there were few binding precedents interpreting and applying the Federal Death Penalty Act, 18 U.S.C. §§ 3591-3598 (the “FDPA”). This Memorandum and Order summarizes and explains some of the decisions the court made during the pretrial proceedings and the trial. These include: (1) a clarification of the procedural protections concerning jury selection afforded the defendant in a capital case under 18 U.S.C. § 3432; (2) evidentiary rulings applying the standard set forth in 18 U.S.C. § 3593(c); (3) a discussion of the court’s power to strike an aggravating factor because the government failed to introduce sufficient evidence to prove the factor beyond a reasonable doubt; (4) explanations of rulings and jury instructions relating to aggravating factors; (5) explanations of rulings and jury instructions relating to mitigating factors; (6) explanations of general FDPA jury instructions; and (7) explanations of rulings relating to the provisions of Federal Rule of Criminal Procedure 12.2 that address issues relating to a capital defendant’s mental condition. The court is issuing a separate Memorandum and Order concerning its oral decisions on Sampson’s post-trial motions. The court is issuing this Memorandum and Order to memorialize some of its decisions and for the instructive value they may have in view of the limited body of capital case law in the First Circuit. It is not, however, intended to be a substitute for the oral rulings issued from the bench as reflected in the transcripts of the proceedings. Unlike the transcripts, the Memorandum and Order does not include all of the rulings made at trial or all of the reasoning articulated by the court at the time the rulings were made. Instead, the Memorandum and Order focuses on those aspects of the court’s rulings that are most likely to be at issue in future FDPA cases. To the extent, if any, that there appears to be an inconsistency between the summaries in the Memorandum and the court’s oral explanations for its decisions, the oral explanations should generally be regarded as more accurate and complete. II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY After committing a series of bank robberies in North Carolina in May, June and July 2001, Sampson fled to the Boston area. On July 23, 2001, Sampson called the Boston office of the Federal Bureau of Investigation (the “FBI”) in an attempt to turn himself in. However, his call was disconnected and, although he waited to be arrested, the FBI failed to arrive and arrest him. See United States v. Anderson, 229 F.Supp.2d 17, 19 (D.Mass.2002); United States v. Anderson, 260 F.Supp.2d 310, 312 (D.Mass.2003). On July 24, 2001, Phillip McCloskey, a 69-year old retiree, picked up Sampson, who was hitchhiking. Sampson subsequently murdered McCloskey with a knife and attempted to steal his automobile. On July 27, 2001, Sampson was hitchhiking again. He was picked up by Jonathan Rizzo, a college student. Sampson murdered Rizzo by tying him to a tree and then stabbing him to death. Sampson then stole Rizzo’s automobile. On July 30, 2001, Sampson encountered Robert Whitney in New Hampshire. Sampson murdered Whitney by tying him to a chair and strangling him to death. Sampson then stole Whitney’s automobile. On July 31, 2001, William Gregory picked up Sampson, who was hitchhiking in Vermont. Sampson pulled a knife and ordered Gregory to drive down a dirt road. Gregory, however, jumped out of his automobile, which Sampson drove away. Gregory reported that his car had been stolen. Shortly thereafter, Sampson called 911 to surrender. Sampson was arrested by the Vermont State Police and quickly confessed his crimes, including the murders of McClos-key, Rizzo, and Whitney. He gave an additional tape-recorded confession to two Massachusetts State Police troopers who traveled to Vermont to question Sampson. On August 1, 2001, Sampson was brought back to Massachusetts, where he gave another tape-recorded confession to troopers of the Massachusetts State Police. Later that month, Sampson was charged by the Commonwealth of Massachusetts for the murders of McCloskey and Rizzo. On October 24, 2001, Sampson was also indicted in this federal case. The Massachusetts charges against Sampson were dismissed in deference to this federal prosecution. Sampson offered to plead guilty and accept a federal sentence of life in prison without the possibility of parole. The Department, of Justice did not accept this offer. Rather, on November 19, 2002, the Attorney General filed a Notice of Intent to seek the death penalty in this case. Sampson filed several pretrial motions challenging the constitutionality of various provisions of the FDPA. In United States v. Sampson, 245 F.Supp.2d 327 (D.Mass.2003) (Sampson I) and United States v. Sampson, 275 F.Supp.2d 49 (D.Mass.2003) (Sampson II), the court rejected these challenges. On December 23, 2003, Sampson pled guilty to both charges. Accordingly, the court impaneled a jury to determine the penalty. See 18 U.S.C. § 3592(b)(2)(A); United States v. Sampson, 297 F.Supp.2d 340 (D.Mass.2003). Jury selection began on September 18, 2003 and was completed on October 27, 2003. On December 23, 2003, the jury returned its verdicts requiring that the death penalty be imposed on both counts. See 18 U.S.C. § 3594. III. THE FEDERAL DEATH PENALTY ACT The unique structure of the FDPA has been discussed at length in several published opinions. As this court wrote in August 2003: If the government decides to seek the death penalty, the FDPA bifurcates the trial into two phases, a guilt phase and a penalty phase. The penalty phase occurs only if the defendant is found guilty of a capital offense. In the context of this case, the government must prove during the guilt phase, beyond a reasonable doubt, that the defendant committed at least one carjacking or attempted carjacking resulting in death within the meaning of 18 U.S.C. § 2119(3). If the government proves either of the two capital charges, a penalty phase of the jury trial will be required. There are two distinct issues before the jury during the penalty phase. The first is whether the defendant is eligible for the death penalty. If so, the second is whether the death penalty is justified. In order to establish eligibility for a death sentence for a homicide, the government must prove, beyond a reasonable doubt, that: the defendant was at least 18 years old at the time of the offense, 18 U.S.C. § 3591(a); he acted with one of the four mental states set forth in 18 U.S.C. § 3591(a)(2); and at least one of the sixteen statutory aggravating factors set forth in 18 U.S.C. § 3592(c) exists. If the government fails to establish eligibility, a death sentence cannot be imposed. If the jury finds that the defendant is eligible for the death penalty, it must decide whether a sentence of death is justified. In reaching this decision, the jury must weigh any aggravating factors against any mitigating factors. In order to recommend that the defendant be sentenced to death, the jury must unanimously conclude that “all the aggravating factor or factors found to exist sufficiently outweigh all the mitigating factor or factors found to exist to justify a sentence of death, or, in the absence of a mitigating factor, [] the aggravating factor or factors alone are sufficient to justify a sentence of death.” 18 U.S.C. § 3593(e). The jury can also recommend a sentence of life imprisonment or, in some cases, some lesser punishment. A jury’s “recommendation” of a sentence of death or life imprisonment is binding on the court. 18 U.S.C. § 3594. Aggravating factors may include statutory aggravating factors and non-statutory aggravating factors identified by the government in its notice of intent to seek the death penalty. See 18 U.S.C. § 3593; § XII.A, infra. Mitigating factors may include any “relevant circumstance that could cause [a jury] to decline to impose the [death] penalty.” McCleskey v. Kemp, 481 U.S. 279, 305-06, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987). Different standards govern the proof of aggravating factors and mitigating factors. “The burden of establishing the existence of any aggravating factor is on the government, and is not satisfied unless the existence of such a factor is established beyond a reasonable doubt. The burden of establishing the existence of any mitigating factor is on the defendant, and is not satisfied unless the existence of such a factor is established by a preponderance of the information.” 18 U.S.C. § 3593(c). A jury must unanimously agree that an aggravating factor has been proven in order to consider it in deciding if the death penalty is justified. 18 U.S.C. § 3593(d). However, any juror who finds that the defendant has established a mitigating factor may take it into account in considering whether a death sentence is justified even if no other juror finds that that mitigating factor has been proven. Id. The FDPA refers to “information” rather than “evidence” because the penalty phase of a capital case is not governed by the Federal Rules of Evidence. See 18 U.S.C. § 3593(c). Rather, any relevant information may be presented to the jury unless “its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury.” Id. Sampson II, 275 F.Supp.2d at 61-62. IV. PROCEDURAL PROTECTIONS AFFORDED BY 18 U.S.C. § 3432 18 U.S.C. § 3432 provides procedural protections for defendants in capital cases beyond those afforded defendants in non-capital cases. The statute requires that a defendant in a capital case “shall at least three entire days before commencement of trial be furnished with a copy of the indictment and a list of the veniremen, and of the witnesses to be produced on the trial for proving the indictment, stating the place of abode of each venireman and witness.” The statute further provides that the lists of veniremen and witnesses “need not be furnished if the court finds by a preponderance of the evidence that providing the list may jeopardize the life or safety of any person.” There is some debate as to whether “place of abode” means “township of residence” as opposed to street address. Compare United States v. Frank, 11 F.Supp.2d 322, 326 n. 6 (S.D.N.Y.1998) (noting that some courts have interpreted “place of abode” to mean township, but that the government in Frank agreed to disclose addresses) with United States v. Insurgents, 2 U.S.(2 Dall.) 335, 1 L.Ed. 404, 26 F. Cas. 499 (C.C.D.Pa.1795) (No. 15,443) (Patterson, J.) (rejecting list that specified only state or county rather than township). The court has found no cases, however, that suggest that the government’s initial witness list, which identified law enforcement witnesses by agency rather than home address, satisfied the statute. “Place of abode” does not mean a business address. Accordingly, the court ordered that the government submit a new witness list that included the home address of every witness it intended to call in its case-in-chief. In order to accommodate the government’s legitimate concerns about making the home addresses of law enforcement officers part of the public record of this case, the court allowed the government to file a witness list with addresses subject to an August 21, 2003 Protective Order and a separate list with the addresses redacted for the public record. The court concluded that street addresses rather than townships were required because a township may be inadequate to identify a person with a common name. Cf. United States v. Hurley (In re Globe Newspaper Co.), 920 F.2d 88, 93 n. 6 (1st Cir.1990) (“In the case of many familiar names, an address as well as the name is necessary to identify the individual [juror].”). V. EVIDENTIARY RULINGS RELATING TO PHOTOGRAPHS A. GENERAL STANDARDS 18 U.S.C. § 3593(c) provides, in pertinent part, that: Information is admissible [in the penalty phase of an FDPA prosecution] regardless of its admissibility under the rules governing admission of evidence at criminal trials except that information may be excluded if its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury. This standard is similar to that set forth in Federal Rule of Evidence 403, which provides that relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” The FDPA standard is more restrictive. It permits exclusion if probative value is outweighed by the danger of prejudice, while the Rule 403 standard allows exclusion only if the probative value is substantially outweighed by the danger of prejudice. However, the FDPA eliminates considerations of undue delay, waste of time and needless presentation of cumulative evidence from the court’s calculus. In this case, the government proffered a large number of photographs of the victims, taken both at the time their bodies were discovered by the police and at the time of their autopsies. Sampson objected to many of these photographs, arguing that they were unnecessary, cumulative, and unfairly prejudicial. The defendant also argued that the pictures’ probative value was diminished as they reflected a physical condition different from that at the time of the offense: the bodies had begun to decompose and showed the effects of insect activity. Although this issue arises frequently during trial under the Rule 403 standard, appellate courts have generally been reluctant to overturn determinations by district courts that photographs, even particularly “gruesome” photographs, are not unfairly prejudicial and therefore are admissible. The matter is one that has largely remained within the discretion of the trial court. The First Circuit has said that determinations under Federal Rule of Evidence 403 will be overturned only in “extraordinarily compelling circumstances.” United States v. Rodriguez-Estrada, 877 F.2d 153, 155-56 (1st Cir.1989). Appellate courts have generally held that when the photographs are probative of a relevant fact, even if not necessarily a disputed one, admission of gruesome photographs under Rule 403 is not reversible error. As the Tenth Circuit has said, “[gjruesomeness alone does not make photographs inadmissible.” United States v. Naranjo, 710 F.2d 1465, 1468 (10th Cir.1983); see, e.g., United States v. Ortiz, 315 F.3d 873, 897 (8th Cir.2002) (in capital case, admission of graphic photos of bloody corpse not abuse of discretion, as they corroborated testimony regarding victim’s murder and established that it was heinous and depraved); United States v. Rezaq, 134 F.3d 1121, 1138 (D.C.Cir.1998) (autopsy photographs relevant to determination of “force and violence” in hijacking case and corroboration of government theory regarding systematic executions); United States v. Cruz-Kuilan, 75 F.3d 59, 61 (1st Cir.1996) (lacerations on victim’s head corroborated government theory regarding stray bullets); United States v. Treas-Wilson, 3 F.3d 1406, 1410 (10th Cir.1993) (autopsy and crime scene photographs, though graphic, were relevant to determination of defendant’s intent or state of mind); United States v. De Parias, 805 F.2d 1447, 1453-54 (11th Cir.1986) (photograph of badly decomposed body of kid-naping victim admissible to show identity and cause of death), overruled on other grounds by, United States v. Kaplan, 171 F.3d 1351 (11th Cir.1999); United States v. Holmes, 632 F.2d 167, 169 (1st Cir.1980) (color photograph of victim helpful in illustrating medical examiner’s testimony regarding sequence of wounds); United States v. McRae, 593 F.2d 700, 707 (5th Cir.1979) (photograph showing victim’s head wounds had bearing on defense of accident); cf. Ferrier v. Duckworth, 902 F.2d 545, 548-49 (7th Cir.1990) (habeas court criticized state court for admitting photographs of the victim’s splattered blood, in color and enlarged to twelve square feet, when the killing was not denied, as the defendant argued intoxication or insanity; court stated that “[t]he only conceivable reason for placing them in evidence was to inflame the jury”); Rezaq, 134 F.3d at 1138 (close-up photo of section of victim’s skull, with skin removed, carried risk of significant prejudice; court stated that “photographs of gore may inappropriately dispose a jury to exact retribution”). B. APPLICATION OF STANDARDS TO GOVERNMENT’S PROFFERED EVIDENCE Over the course of several hearings in October and November 2003, the court considered the defendant’s objections to the government’s proposed photographic exhibits of the victims’ bodies. The court made rulings on these objections on October 31, 2003, November 3, 2003, November 4, 2003, November 5, 2003, November 6, 2003, November 10, 2003, and November 12, 2003. Analysis of the photographs in the current case took into account its distinctive features. Sampson, having pled guilty to the charged offenses, did not contest that he had committed the murders of McClos-key, Rizzo and Whitney. Further, as the photographs were to be presented first at the penalty phase and not, as in most capital trials, originally at the guilt phase, they were relevant only insofar as they related to a gateway mental state or an aggravating or mitigating factor. The photographs, and the injuries depicted in them, were relevant to proving the gateway mental states. Even though Sampson had pled guilty, the jury was required to make a finding regarding intent before it could begin considered the aggravating or mitigating factors. 18 U.S.C. § 3591(a)(2) states that a defendant can only be considered for a sentence of death: if the defendant, as determined, beyond a reasonable doubt at the hearing under section 3593- (A) intentionally killed the victim; (B) intentionally inflicted serious bodily injury that resulted in the death of the victim; (C) intentionally participated in an act, contemplating that- the life of a person would be taken or intending that lethal force would be used in connection with a person, other than one of the participants in the offense, and the victim died as a direct result of the act; or (D) intentionally and specifically engaged in an act of violence, knowing that the act created a grave risk of death to a person, other than one of the participants in the offense, such that participation in the act constituted a reckless disregard for human life and the victim died as a direct result of the act.' Id. (emphasis added). Thus, a finding of intent must be made during the penalty phase; a guilty plea, just like a conviction after trial, does not extinguish this requirement. intent can be difficult to prove, as it often cannot be shown directly. ■ The jury frequently can only make inferences, informed by the evidence, as to what a defendant was thinking at any given time’ Even a defendant’s statements regarding his intent are not necessarily conclusive, as they may be the product of deceit,- forgetfulness, or mental illness. Therefore, although the jury could have drawn on the information given by Sampson in his confessions, any additional information regarding the nature of the wounds inflicted by him could have been important circumstantial evidence of his intent to cause death. While medical diagrams would have informed the jury about the size and location of the wounds, the photographs might have allowed the jury to obtain a better understanding of what occurred and how Sampson attacked his victims. By having more information about the encounter and the actions of the defendant, the jurors might be better able to make inferences about his state of mind. See United States v. Allen, 247 F.3d 741, 793 (8th Cir.2001) (photographs of victims probative of intent, as showing the extent of the damage caused by the defendant), vacated on other grounds, 536 U.S. 953, 122 S.Ct. 2653, 153 L.Ed.2d 830 (2002). However, because the gateway factors were not seriously in dispute, there was a real danger that the admission of extensive graphic and shocking evidence that was relevant only to those gateway factors would be unfair to the defendant. If this had been the only relevance, it would have been clear that the photographs should, in large part, have been excluded. However, the photographs were also relevant to at least one alleged aggravating factor that was significantly in dispute, namely, that “the offenses were committed in an especially heinous, cruel, or depraved manner in that they involved torture or serious physical abuse to the victims.” See 18 U.S.C. § 3592(c)(6). As discussed in Part X, infra, a finding of especially heinous, cruel, or depraved under either the torture or the serious physical abuse prong would require a finding not merely of the damage done to the victims’ bodies or mental anguish inflicted, but also a finding of the defendant’s intent. For a finding of especially serious physical abuse, the jury would have to find that the defendant had the intent to inflict physical abuse to the victims’ bodies beyond that necessary to kill the victims. For a finding of torture, the jury would have to find that the defendant inflicted physical or mental abuse to a conscious victim for one of three specific purposes: either to punish, to extract information or a confession, or for sadistic pleasure. Again, there are relatively few kinds of evidence that could be helpful in determining whether the requisite intent existed. The words of a defendant, as recorded in a confession, may be helpful but not determinative: both the prosecution and the defense argued at various points that Sampson’s statements were inaccurate in many of their details. In determining whether the defendant had the necessary intent to meet the especially heinous, cruel, or depraved factor, the jury would have been aided by any evidence that would have enabled it to visualize the encounter between the defendant and his victims, to visualize the state the victims were in at the time the defendant left, and, therefore, to understand better the defendant’s likely intention. One consideration under the FDPA that is not present in the usual criminal trial is the necessity of giving weight to a factor if the jury reaches the point where it must decide “whether all the aggravating factor or factors found to exist sufficiently outweigh all the mitigating factor or factors found to exist to justify a sentence of death, or, in the absence of a mitigating factor, whether the aggravating factor or factors alone are sufficient to justify a sentence of death.” 18 U.S.C. § 3593(e). During a criminal trial to determine guilt, once a fact is established beyond a reasonable doubt, additional proof regarding that fact may be unnecessary and cumulative. However, under the FDPA, the existence of a fact or factor is not all that the jury must consider. It must also consider the weight to be given to that factor. In this context, even if medical diagrams and oral testimony would have been sufficient to establish that the offense was committed in an especially heinous, cruel, or depraved manner in that it involved torture or serious physical abuse, photographs had the potential to be valuable for the jury in determining how much weight to give that factor. Sampson made two particular objections to the photographic evidence. First, he argued that the photographs were unfairly prejudicial because of their gruesome nature. He argued that any probative value they possessed paled in comparison to their inherently prejudicial nature, which would serve to inflame the jury. See, e.g., Spears v. Mullin, 343 F.3d 1215, 1228 (10th Cir.2003) (“[E]ven if the photographs were minimally relevant to the heinous, atrocious, or cruel aggravator, the photographs’ prejudicial effect outweighed then-probative value.”). Second, Sampson argued that the photographs did not accurately represent the victims’ bodies at the time he left them. These objections were analyzed together under the 18 U.S.C. § 3593(c) framework, which instructs the court to compare the probative value of a piece of evidence with the danger of unfair prejudice, confusion, and misleading of the jury- Both objections go to the danger of unfair prejudice; the second objection also goes to the limited probative value of the photographs. To the extent the photographs depicted a situation significantly different from, that at the time the defendant left the crime scene, they were less helpful in drawing inferences about his actions and state of mind at that time. But see United States v. Sarracino, 340 F.3d 1148, 1169 (10th Cir.2003) (rejecting a challenge that the body of the victim had changed between the time of the crime and the time of the photograph, the court wrote, “The bloodied head and face of the victim gives an indication, although admittedly an imperfect one, of how the victim must have appeared to the defendants at the end of the fight. Without these photos, the prosecution would have been handicapped in its ability to convey the nature and extent of the beating to the jurors.”). The most significant post-mortem changes were to the size and shape of the wounds, which might have expanded as the skin loosened over time, and the presence of insects on the body, the activities of which also caused considerable skin discoloration. The government argued that the defendant could not fairly complain about the decomposition of his victims’ bodies when he contributed to the level of decomposition by concealing the bodies from the authorities. While it is possible that in some cases the fact that the defendant concealed the body of the victim and purposefully left it to decompose could be an aggravating factor, that factor was not alleged in this case and, therefore, could not be considered by the jury. See 18 U.S.C. § 3593(a). The decomposition of the body was not relevant to the especially heinous, cruel, or depraved aggravating factor requiring serious physical abuse or torture at the time of the murder. Moreover, when faced with photographs showing the effects of decay, decomposition, and insects, the jury might well have been led to consider the murders to have been worse or the defendant more deserving of the death penalty. This danger could not have been cured entirely by a limiting instruction. As the Supreme Court of Kentucky phrased the issue, in a case where the body of the victim had been stored for months in a freezer: The general rule is that relevant pictures are not rendered inadmissible simply because they are gruesome and the crime is heinous. This general rule loses considerable force when the condition of the body has been materially altered by mutilation, autopsy, decomposition or other extraneous causes, not related to commission of the crime, so that the pictures tend to arouse passion and appall the viewer. Clark v. Commonwealth, 833 S.W.2d 793, 794 (Ky.1991) (citations omitted). Similarly, Justice Thurgood Marshall wrote, in dissenting to a denial of certiora-ri of a capital case from Oklahoma where photographs of a victim’s body which had been retrieved from a river one month after a murder were introduced at the penalty phase: [T]he petitioner argues convincingly that the photographic evidence created an impermissible risk that his death sentence was based on considerations that are “totally irrelevant to the sentencing process,” because it focused the jury’s attention on the postmortem decomposition of the victim’s body rather than on “the character of the [defendant] and the circumstances of the crime.” Mann v. Oklahoma, 488 U.S. 877, 877, 109 S.Ct. 193, 102 L.Ed.2d 163 (1988) (Marshall, J., dissenting from denial of cert.) (citations omitted). In addition to some photographs in which insects were visible on the bodies of the victims, there were a number of photographs in which portions of the victims’ bodies were colored dark red or brown. This caused an additional risk of confusion or of misleading of the jury. To the untrained eye, this discoloration appeared to be the product of blood loss. However, the voir dire testimony of the medical examiner, Dr. William Zane, established that the discoloration was caused by an entirely different, but equally unpleasant process: the decay caused by the enzymes that are produced by insect larvae as they travel across the corpse, eating away the outer layers of skin. Introduction of these photographs would either have served to mislead the jury concerning the amount of blood that had been lost or have required a detailed and particularly disturbing explanation of the processes of decomposition, an explanation that would likely have aroused the passions of the jurors. The defendant would have been forced to choose between two unfair alternatives: either allow the jury to believe that more blood was lost or be forced to bring out the details of the insect activity. Again, however reprehensible anyone might find the fact that victims’ bodies decomposed as a result of being abandoned by the defendant is wooded areas, the government did not allege that fact as an aggravating factor in this case and the jury could not properly have considered it as one. See 18 U.S.C. § 3593(a). A similar situation was considered by the Supreme Court of Arizona in State v. Spreitz, 190 Ariz. 129, 945 P.2d 1260, 1271-73 (1997). There, in a capital case, a number of autopsy photographs were admitted. The court described the photographs as follows: The photographs depict the corpse as it appeared after decomposing in the desert for three days in temperatures exceeding 100 F. The corpse is severely discolored, and in all of the photographs insects are shown partly covering the body. This insect activity is vividly apparent in the close ups. Id. at 1271. The Supreme Court of Arizona, in deciding that admission of the photographs was error, noted that the medical examiner was able to testify clearly about the wounds to the victim’s body, and that the photographs provided “little or no additional aid in that regard.” Id. at 1273. The court held that the “danger of unfair prejudicial effect on the jury substantially outweighed the photographs’ probative value.” Id. Also, in Tobler v. State, 688 P.2d 350 (Okla.Crim.App.1984), the Court of Criminal Appeals of Oklahoma reversed a capital conviction, in part based on the admission of photographs depicting the “gruesome work of nature” on victims’ bodies, including decomposition and maggot activity. Id. at 355. The court noted that “[i]t is difficult to ascertain any probative value of the evidence,” given that the defendant had admitted to the killings, stipulated to the information in the photographs, and the medical examiner testified as to the cause of death. Id. at 355-56. The photographs “provided nothing in the way of new evidence, and had the potential, if not certain, effect of unduly prejudicing” the defendant. Id. at 356. In analyzing the admission of the photographs, this court was cognizant not only of the balancing test for information established by 18 U.S.C. § 3593(c), but also of the due process concerns in the case generally. A defendant’s due process rights have been violated when, in view of the totality of the circumstances, he has not received a fundamentally fair trial. See, e.g., Spears, 343 F.3d at 1225-26. Such a violation could arise out of a single action or piece of evidence. It could also arise from the cumulative effect of a number of pieces of evidence in combination. In the present case, the photographs might individually have been admissible, but might have amounted to a denial of due process when considered together. Similarly, the photographs themselves might not have caused a due process violation, but could, in combination with other types of evidence that involve the danger of unfair prejudice, have contributed to a due process violation. Therefore, the court was required to consider the other evidence in this case, including the type and amount of victim impact evidence, when deciding which photographs to admit. See, e.g., United States v. Rivera, 900 F.2d 1462, 1477 (10th Cir.1990) (“Cpurts have also found fundamental unfairness when error is considered in conjunction with other prejudicial circumstances within the trial, even though such other circumstances may not individually rise to the level of error.”). In light of these concerns, the court admitted only a small subset of the proffered photographs. The photographs admitted were those that most closely depicted the condition of the victims at the time they were left by the defendant. They primarily showed detailed views of individual wounds rather than pictures of the general condition or blood loss of the victim’s bodies. Redacted from the photographs that were admitted were particularly gruesome portions of the images, including those depicting discoloration of the victim’s body and insect activity. Finally, one photograph was admitted after the portion of it which showed a crucifix was redacted. This photograph was of Whitney, tied to a chair in the bathroom where Sampson killed him. A crucifix hung on the wall next to the bathroom. The crucifix had little or no probative value. It did not relate to Wfiiitney’s character since he was killed in someone else’s house. Further, the juxtaposition of the crucifix with Wdiitney’s strangled and bound body could have been seen as providing religious overtones to the murder. Inclusion of the crucifix would have run the risk of affecting one or more jurors in an unpredictable, but unfairly prejudicial way. See Taylor v. State, 640 So.2d 1127, 1135 (Fla.Dist.Ct.App.1994) (videotape of victim’s home that included panning shots of a crucifix on the wall “invite[d] an emotional response”); cf. Commonwealth v. Chambers, 528 Pa. 558, 599 A.2d 630, 644 (1991) (establishing a per se rale against religious invocations in prosecutorial closing arguments in capital cases). As the inclusion of the crucifix would have provided no relevant information, redaction was appropriate to avoid the risk of unfair prejudice. VI. EVIDENTIARY RULINGS RELATING TO BLOODY CLOTHING On November 6, 2003, November 10, 2003, November 12, 2003, November 13, 2003, December 3, 2003, December 16, 2003 and December 17, 2003, the court considered the introduction of the shirts that McCloskey and Rizzo were wearing when Sampson killed them. These shirts had been cut off the victim’s bodies by police investigators and preserved. They were mounted in plexiglass that allowed both the front and the back of the shirt to be viewed. In addition to the cuts made by the police, the shirts were ripped in numerous places that corresponded with the stab wounds inflicted on McCloskey and Rizzo. They also were heavily stained with blood. The shirt of one of the victims had several folds in which insects had laid a large number of eggs. The shirts were relevant in the same way that many of the gruesome photographs were germane. They could have been used by the jury in considering whether the offenses were committed in an especially heinous, cruel, or depraved manner in that it involved serious physical abuse. The shirts could have vivified the victims’ struggles for the jury in a way that might not have been accomplished merely by oral testimony and medical diagrams. By having a more vivid picture of the struggle, the jury might have been better able to make inferences about the defendant’s intent, an element necessary for establishing serious physical abuse. In the same way, the shirts might also have assisted the jury in giving weight to the heinous, cruel, or depraved aggravator, if the jury had found that factor to have been proven. The court recognized that the shirts were not the best evidence of the specific size and number of wounds inflicted on the victims. The rips in the shirts might have been larger than the actual stab wounds. Likewise, if a shirt were doubled over at the time of the attack, a single knife thrust could have made two or more rips in the shirt. These dangers, however, could have been reduced or eliminated by testimony elicited on direct or cross-examination regarding the manner in which a knife attack causes holes in a garment. In the context of this case, the court ruled that the shirts were inadmissible under the 18 U.S.C. § 3593(c) standard and the due process clause. Courts have often admitted the bloody clothing of the victim in homicide prosecutions. See, e.g., Annotation, “Admissibility, in Homicide Prosecution, of Deceased’s Clothing Worn at Time of Killing,” 68 A.L.R.2d 903, § 2[a], 1959 WL 12853 (1959) (“In homicide prosecutions, the general rule is that the clothing worn by the victim at the time of the killing is admissible in evidence, even where its introduction may be prejudicial to the accused, if it tends to shed light upon a material inquiry in the case.”). However, in the context of this capital case, there were unique considerations that indicated that exclusion was appropriate. While the shirts were, as described above, relevant to material issues in this case, it is likely that the jury would not have considered them solely on those issues. During the trial, the prosecution produced evidence, especially through the confessions of the defendant, that was more directly probative of the intent element of serious physical abuse. Rather than as circumstantial evidence of intent, the jury would likely have regarded the shirts as powerful and immediate symbols of the victims and the brutality of their murders. See, e.g., Frazier v. Mitchell, 188 F.Supp.2d 798, 826 (N.D.Ohio 2001) (with bloody clothing before the jury, prosecutor stated in closing that the victim “is not here. We have bloody clothing to represent her”; the court viewed this as “unprofessional, improper and excessive”). The presence of the shirts in the jury room during deliberations could have exerted an intense emotional force unconnected to their legitimate probative value. The display of the shirts during closing argument could have induced the jury to respond in a purely emotional way. Further, use of the shirts would have presented the danger of introducing inappropriate victim impact information. At several times during the course of the case, members of the victim’s families seated in the gallery were, understandably, visibly and audibly upset by the testimony and other evidence. The court attempted to ensure that the jurors considered only the victim impact evidence that was offered from the witness stand and were not influenced by reactions they observed in the gallery. At one point, when McClos-key’s bloody shirt was displayed in open court, but not in the presence of the jury, there were audible gasps from the gallery. In this context, the court feared the repetition of the events described in State v. Steele, 120 Ariz. 462, 586 P.2d 1274, 1277-78 (1978). In that case, during the display of a murder victim’s clothing, his widow become so overwrought that she rushed from the courtroom, creating a disturbance which was noticed by all the jurors. The defendant objected, saying that the prosecution was “in effect, ‘waving the bloody shirt.’ ” On appeal, the Supreme Court of Arizona agreed, saying that the shirts had been introduced “only to arouse and inflame the emotions of the jury.” Id. For these reasons, the court ruled that the bloody shirts of McCloskey and Rizzo were not admissible. VII. VICTIM IMPACT EVIDENCE A. GENERAL STANDARDS In Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), the Supreme Court reversed its prior decisions and held that the Eighth Amendment does not erect a per se bar to the introduction of victim impact evidence. Under Payne, the prosecution may offer at capital sentencing “a quick glimpse of the life which a defendant chose to extinguish.” Id. at 822, 111 S.Ct. 2597 (quoting Mills v. Maryland, 486 U.S. 367, 397, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988)). Additionally, victim impact evidence may illustrate “the loss to the victim’s family and to society which has resulted from the defendant’s homicide.” Id. Thus, the prosecution also may offer evidence of the impact of the victim’s loss on others. Id. at 836, 111 S.Ct. 2597. (Souter, J., concurring) In essence, in holding that the Constitution erects no per se bar to victim impact evidence, the Supreme Court concluded that “[vjictim impact evidence is simply another form or method of informing the sentencing authority about the specific harm caused by the crime in question.” Id. at 825, 111 S.Ct. 2597. Victim impact evidence is admissible under the constitution unless it “is so unduly prejudicial that it renders the trial fundamentally unfair” in violation of a defendant’s right to due process. Id. at 825, 111 S.Ct. 2597; see also Jones v. United States, 527 U.S. 373, 401-02, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999). The Supreme Court, however, also recognized the risk that victim impact evidence could be unduly inflammatory and expressed the expectation that trial courts would exclude such testimony. Payne, 501 U.S. at 831, 111 S.Ct. 2597 (O’Connor, J., concurring) (“The possibility that this evidence may in some cases be unduly inflammatory does not justify a prophylactic, constitutionally based rule that this evidence may never be admitted. Trial courts routinely exclude evidence that is unduly inflammatory; where inflammatory evidence is improperly admitted, appellate courts carefully review the record to determine whether the error was prejudicial.”); id. at 836, 111 S.Ct. 2597 (Souter, J., concurring) (“[I]n each case there is a traditional guard against the inflammatory risk, in the trial judge’s authority and responsibility to control the proceedings consistently with due process, on which ground defendants may object and, if necessary, appeal”). Exercising this authority is essential in a capital case for, as the Supreme Court has cautioned, “[i]t is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion.” Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977). Victim impact evidence may be considered by the jury in federal capital cases, as a non-statutory aggravating factor, if the jury unanimously finds that the prosecution has proven at least one statutory aggravating factor. See 18 U.S.C. § 3593(a),(e). The FDPA explicitly permits the government to present evidence “concerning the effect of the offense on the victim and the victim’s family.” 18 U.S.C. § 3593(a). Such evidence “may include oral testimony, a victim impact statement that identifies the victim of the offense and the extent and scope of the injury and loss suffered by the victim and the victim’s family, and any other relevant information.” Id. Under the FDPA, the prosecution must provide the defendant with notice of its intent to use victim impact evidence, unless its evidence is introduced merely to rebut mitigating evidence offered by the defendant. See 18 U.S.C. § 3593(a)-(b); see also United States v. Allen, 247 F.3d 741, 778-81 (8th Cir.2001) (holding that FDPA allows victim impact evidence and that the notice and unanimity requirements of the FDPA are adequate procedural safeguards), vacated on other grounds, 536 U.S. 953, 122 S.Ct. 2653, 153 L.Ed.2d 830 (2002). In this case, the court recognized that there are two checks on potentially unfair-; ly prejudicial victim impact evidence, and indeed on all evidence at trial. The first check is the trial court’s statutory responsibility, see 18 U.S.C. § 3593(c), to decide if the probative value of a particular piece of evidence is outweighed by the danger of unfair prejudice, in the form of inflaming the jury’s passions and thus promoting the “risk [of] a verdict impermissibly based on passion, not deliberation.” Payne, 501 U.S. at 836, 111 S.Ct. 2597 (Souter, J, concurring). The second check is the responsibility of the court to secure the defendant’s right to due process by viewing the proffered evidence in the context of all the other evidence in the case and deciding if its admis-, sion would contribute to or detract from a trial that is fundamentally fair and allows jurors to base their decisions on reason and reliable evidence rather than passion. Id. While Payne reversed Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), in which the Court had held that the admission of victim impact testimony was always unconstitutional at capital sentencing, it specifically did not reverse its prior holdings on other issues. The Court explained: Our holding today is limited to the holdings of Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), and South Carolina v. Gathers, 490 U.S. 805, 109 S.Ct. 2207, 104 L.Ed.2d 876 (1989), that evidence and argument relating to the victim and the impact of the victim’s death on the victim’s family are inadmissible at a capital sentencing hearing. Booth also held that the admission of a victim’s family members’ characterizations and opinions about the crime, the defendant, and the appropriate sentence violates the Eighth Amendment. No evidence of the latter sort was presented at the trial in this case. Payne, 501 U.S. at 830 n. 2, 111 S.Ct. 2597. Therefore, certain types of testimony by a victim’s survivors continue to be prohibited. First, victim impact witnesses may not characterize or give their opinions on the crime. Second, they may not characterize or give opinions on the defendant. Third, they may not express an opinion on the appropriate sentence. See Booth, 482 U.S. at 508, 107 S.Ct. 2529. Other courts have echoed these findings, holding that victim impact testimony may not present an opinion on what the appropriate sentence might be or consist of statements constituting a “mere emotional plea” unrelated to the impact of the crime on the victims or their families. See Hain v. Gibson, 287 F.3d 1224, 1237-38 (10th Cir.2002); Robison v. Maynard, 943 F.2d 1216 (10th Cir.1991). B. APPLICATION OF STANDARDS TO THIS CASE On August 15, 2003, the court ordered the parties to file memoranda addressing the permissible scope of victim impact testimony, and what measures it should consider in order to ensure that the jury was not exposed to testimony that should have been excluded. On September 2, 2003, the government filed its Memorandum regarding Admissibility and Scope of Victim Impact Testimony as to Gary Lee Sampson. The defendant filed his response on September 5, 2003. On October 27, 2003, at the court’s request, the government filed a proffer regarding its expected victim-impact testimony, stating its intention to call a total of nine victim impact witnesses and outlining the information that it intended to elicit from the witnesses at trial. . Sampson filed his response on October 28, 2003 which he supplemented on October 29, 2003. Sampson asked that the government be limited to two witnesses per family, and further that any victim impact evidence relating to the Whitney murder, for which Sampson was not being tried in this court, be excluded altogether. Sampson also called on the court to impose procedural safeguards to guard against possible prejudice, asking specifically that the court impose the procedures set out in United States v. O’Driscoll, 203 F.Supp.2d 334, 340-41 (M.D.Pa.2002) and United States v. Glover, 43 F.Supp.2d 1217, 1234-36 (D.Kan.1999). In each of those two cases, the government was required to submit a written statement describing the proposed testimony of each victim impact witness. O’Driscoll, 203 F.Supp.2d at 341 (citing Glover, 43 F.Supp.2d at 1235-36). Each of the courts also adopted instructions to be given victim impact witnesses, concerning control of their emotions during the time of their testimony. Id. The government initially proposed a total of nine victim impact witnesses: three from the McCloskey family, four from the Rizzo family, and two from the Whitney family. On October 30, 2003, the court first addressed the issues presented by the McCloskey and Rizzo witnesses. The government’s proposed witnesses'were three of Philip McCloskey’s adult children, as well as the parents and two younger brothers of Jonathan Rizzo. The government informed the court that it would introduce those witnesses’ victim impact testimony in a question-and-answer format. As indicated earlier, Sampson argued that no more than two members of each of the McClos-key and Rizzo families should be allowed to testify, to prevent unfair prejudice and the risk that passion and sympathy would overwhelm reason. In many federal and state cases, however, trial courts have allowed several family members and others to testify at capital sentencing. The trial at issue in United States v. Allen, 247 F.3d 741, 779 (8th Cir.2001), vacated on other grounds, 536 U.S. 953, 122 S.Ct. 2653, 153 L.Ed.2d 830 (2002), involved eleven victim impact witnesses and 80 pages of transcript. The Tenth Circuit in United States v. Chanthadara, 230 F.3d 1237 (10th Cir.2000), found that allowing three family members, the victim’s widow and their two children, to testify as victim impact witnesses did not violate the defendant’s due process rights. In United States v. Bernard, 299 F.3d 467, 478 (5th Cir.2002), the Fifth Circuit found no error in the court’s allowing the reading of five victim impact statements, four from the victims’ parents and one by a friend and former coworker of the two victims; and in United States v. Barnette, 211 F.3d 803, 818 (4th Cir.2000), the Fourth Circuit found no error when the trial court permitted seven family members to testify as victim impact witnesses regarding the deaths of two people. In State v. Scales, 655 So.2d 1326, 1335-36 (La.1995), several family members testified, each briefly,' and that was not found to be reversible error. State v. Taylor, 669 So.2d 364, 370-71 (La.1996) allowed three witnesses related to the victim, where their testimony took up only ten pages out of a 793-page transcript and where the defense presented twenty mitigation witnesses. This court found that three to four family members per victim in this case was not too many per se. Each family member of a murdered victim suffers a unique harm. Consequently, each witness’ testimony provides distinct information that the jury can use in deciding what weight to give this aggravating factor. Ultimately, however, the prosecution introduced victim impact evidence through the testimony of only six witnesses: three of McCloskey’s adult children, followed by Rizzo’s father, mother and one of his younger brothers. The testimony was conducted in question-and-answer format in order to control the subject matter covered and to provide the defendant with an opportunity to make objections. In total, the victim impact testimony comprised about two hours of more than two weeks of prosecution evidence, comprising only sixty-three pages of a very lengthy trial transcript. Just before the first victim impact witness testified, the court instructed the jury as follows: Ladies and gentlemen, the next set of witnesses are going to be members of the victims’ families. They’re going to give testimony that in the law is called victim impact testimony. And with the agreement of counsel, I’m going to explain to you now and, I expect, repeat at the end of the case the specific and limited purpose for which victim impact evidence can be considered by you. To understand this, you need to be reminded of the architecture of the Federal Death Penalty Act. You may recall that in the process of jury selection and on the first day that you came to hear evidence, I told you that there are various stages in the Federal Death Penalty Act which establishes a process that you have to follow in this case in deciding the appropriate sentence. At the first stage, you decide whether the defendant is eligible to be executed, whether the death penalty is an option. In the second stage — if you reach that stage — if the government proves that the death penalty is an option, you have to decide which if any of the alleged aggravating factors have been proven beyond a reasonable doubt, actually, the non-statutory aggravating factors. And then you would have to consider, if the death penalty is an option, whether any of the possible mitigating factors have been proven by a preponderance of the evidence. And then, if the death penalty is an option, you have to weigh the proven aggravating factors against any possible mitigating factors and decide if the aggravating factors are sufficient to make the death penalty the appropriate penalty in this case rather than life in prison without possibility of release, which is the only other option. ... the first thing you’ll have to consider when you go back to deliberate is whether the government has proven beyond a reasonable doubt certain facts that are necessary to establish that the defendant is eligible for the death penalty- And this will require that the government prove at least one of several alleged states of mind at the time the crime was committed. And I’ll explain it to you, and they’ll be spelled out on the verdict form. And you’ll also have to decide whether the government has proven beyond a reasonable doubt at least one aggravating factor that’s established by the Federal Death Penalty statute. For example, in this case there are several, but— for example, it’s alleged that each of the crimes was committed after substantial planning and premeditation. So, if the government doesn’t prove that the defendant is eligible for the death penalty, your deliberations will be complete, and you won’t in your deliberations have considered the victim impact evidence. If the government does prove ... that the death penalty is an option for Mr. Sampson in this case for either or both of the crimes with which he’s charged and pled guilty, then you’ll go to the second stage. You’ll have to decide whether the government has proven any of what are called non-statutory aggravating factors beyond a reasonable doubt. The impact of the crime on each of the victims, Philip McCloskey and Jonathan Rizzo and each of their families, is a non-statutory aggravating factor for each of the crimes concerning them. And several' members of each of the victims’ families are going to testify today with regard to this. I want to tell you what the Supreme Court has explained about victim impact evidence. The evidence is intended to inform you that each victim was a unique human being, just as you’ll later hear through the evidence in this case that the defendant, Gary Sampson, is a unique human being. And I expect that the testimony that you’re going to start hearing soon will be emotional. In fact, [the Deputy Clerk] has some [Kleenex] and, if we discern that anybody wants it or needs it, he’ll give it to you ... However, the victim impact evidence is being admitted for a limited purpose. That means you can consider it for a particular purpose, but not for other purposes. You may not consider the victim impact evidence, that is, the evidence from the victims’ families, on the issue of whether the defendant is eligible for the death penalty. You’ll have to address certain other factual questions before you can properly consider victim impact evidence, and the victim impact evidence can’t influence your judgment on those earlier issues. So, for example, you can’t consider what the victims’ families say on whether the defendant had the state of mind required when he committed the crime to make him eligible for the death penalty. And they won’t be testifying about that. And you can’t consider the evidence from the victims’ families on whether some statutory aggravating factor has been proven. You can consider the victims’ families testimony only if the defendant is proven to be eligible for the death penalty by other evidence in the case, and then you can consider that testimony from the victims’ families only on the issue of victim impact and not with regard to whether other non-statutory aggravating factors have been proven. If you find that the defendant is eligible for the death penalty with regard to the crime of carjacking resulting in the murder of Philip McCloskey, you may consider the content of the victim impact evidence, evidence from his family members, regarding whether the government has proven that non-statutory aggravating factor of victim impact. And if that’s proven, you can consider that factor in deciding whether the death penalty is justified for that crime. And the same is true with regard to the carjacking resulting in the murder of Jonathan Rizzo. You may not, however, permit the victims’ families’ testimony to overwhelm your ability to follow the law. For example, you must obey the legal requirement that you not consider the testimony from the vict