AI Victim Impact Statement: Allowed at Sentencing? ARS 13-4426

Can an AI Victim Impact Statement Be Used at Sentencing in Arizona?

No. On September 30, 2026, Division One of the Arizona Court of Appeals decided State v. Horcasitas, No. 1 CA-CR 25-0191, the first Arizona appellate case to address an AI-generated depiction of a victim offered as victim impact evidence. The court held that the video “was not reliable,” that playing it for the sentencing judge was fundamental error, and that the judge’s reliance on it made the sentencing “fundamentally unfair.” The manslaughter conviction stands, but the 10.5-year sentence was vacated and the case goes back to Maricopa County Superior Court for resentencing.

The ruling does not shrink what victims may say. Arizona’s Victims’ Bill of Rights, Article 2, Section 2.1 of the Arizona Constitution, secures the right to be heard at sentencing, and the court was careful to say the real recordings of the victim embedded in the AI video were permissible. What a court may not do is sentence a person based on a synthetic performance of words the victim never spoke.

What Happened in State v. Horcasitas?

Gabriel Paul Horcasitas was stopped behind a truck at a busy intersection in 2021 and repeatedly honked. The driver of the truck got out, raised his arms and advanced toward Horcasitas’s car, yelling. Within seconds Horcasitas shot and killed him. He told police the man had threatened to kill him and grabbed his window frame; eyewitnesses said the man never got past the rear of his own truck. The State charged first-degree felony murder, second-degree murder, drive-by shooting and three counts of endangerment, and Horcasitas raised self-defense under A.R.S. § 13-404.

The case took an unusual path to sentencing. At the first trial, a jury acquitted Horcasitas of both murder counts and drive-by shooting but convicted him of manslaughter. The trial judge then granted a new trial after finding the State had withheld text messages from the victim’s phone that supported the self-defense claim, a violation of both Brady and Rule 15.1(b)(8). The Court of Appeals affirmed that order in 2024. At the second trial, another jury found Horcasitas guilty of manslaughter as a dangerous offense, a class 2 felony under A.R.S. § 13-1103 that carries a 7-year minimum, 10.5-year presumptive and 21-year maximum term for a first offense under A.R.S. § 13-704. Our guide to the manslaughter sentence in Arizona walks through those ranges.

At the sentencing hearing, friends and family described the victim and asked for the maximum. His brother read a statement the victim himself had written. Then his sister told the court she imagined constantly what her brother would say if he could take her place, and an AI video played. A digital recreation of the victim, built from his photo and a voice profile, introduced itself as a version of him “recreated through AI,” called the video “a true representation of who [he] was” and “not how the courtroom portrayed [him],” and told Horcasitas, “I believe in forgiveness and in God who forgives.” The prosecutor asked for a slightly mitigated 9 years. Defense counsel asked for 7. The judge said, “I loved that AI,” called it “genuine,” described the forgiveness as coming from the victim’s heart, and imposed the presumptive 10.5 years, which he acknowledged was “more than the State asked for.”

What Are Victims Allowed to Present at an Arizona Sentencing?

A great deal, and the ruling leaves that intact. Under A.R.S. § 13-4426, the victim may present “evidence, information and opinions that concern the criminal offense, the defendant, the sentence or the need for restitution” at any aggravation, mitigation, presentencing or sentencing proceeding, and has the right to be present and to address the court. Under A.R.S. § 13-4428, the victim chooses the form: an oral statement, a written statement, or an audio, video or other digital submission the court can access. Family members of a homicide victim exercise those rights on the victim’s behalf.

Those statements come with fewer safeguards than ordinary evidence. A.R.S. § 13-4426.01 provides that a victim who exercises the right to be heard does so “not as a witness,” that the statement is not subject to disclosure to the State or the defendant, and that the victim is not cross-examined. The statute does give the State and the defense “the opportunity to explain, support or deny the victim’s statement,” which in practice is the defense lawyer’s only tool in the moment.

The limit comes from the defendant’s side of the ledger. Because the rules of evidence do not apply at sentencing, Rule 26.7(b) of the Arizona Rules of Criminal Procedure lets any party introduce “any reliable, relevant evidence, including hearsay.” The word that matters is reliable. Arizona courts have long held that due process requires sentencing information to carry at least “minimal indicia of reliability,” that a defendant has the right to be sentenced on accurate information, and that a sentence built in part on false information must be set aside. Horcasitas applied those older rules to a new technology.

Why Did the Court Say the AI Video Crossed the Line?

The court measured the video against State v. Rose, the Arizona Supreme Court case that reviewed gravesite photographs of a murder victim’s young sons. Rose called those photos “troubling” and “uncomfortably close” to the line, but allowed them because they captured a real moment of loss. The AI video, the court said, was different in kind. Three points carried the decision:

• It did not reflect actual events. Apart from the embedded clips of the real victim, the video recorded no moment and documented no fact. It presented “a depiction of the victim and his thoughts created from the imaginings of the victim’s sister.”
• It erased the interpretive distance. The sister was entitled to tell the judge what she believed her brother would have said. The AI video instead delivered those beliefs in his face, his voice and his expressions, as statements “coming directly from the victim.” The court found that “no disclaimer could cure that error.”
• The judge relied on it. The record did not show precisely how the video factored into the sentence, but the judge’s own words showed it “played a role.” Combined with the lack of reliability, that made the hearing fundamentally unfair.

Two procedural details matter for anyone facing sentencing. Horcasitas never objected to the video, so the Court of Appeals reviewed only for fundamental error, the most demanding standard a defendant faces on appeal, and still vacated the sentence. And the court drew the line at the synthetic content only: the real footage of the victim talking about his faith and fishing was permissible victim impact evidence.

What Is Allowed at Sentencing, and What Is Not?

What Does This Mean If You Are Facing Sentencing in Arizona?

Defense attorneys commonly see sentencing hearings decided by presentation as much as by the record, and the Horcasitas judge said as much when he chose the presumptive term over the State’s own request. Several practical lessons follow from the opinion:

1. Ask what the victim side intends to present. Disclosure is not required under § 13-4426.01, but nothing prevents counsel from asking the prosecutor or the victim’s attorney whether video, recordings or digital media will be played, and from alerting the judge in advance.
2. Request screening. The Arizona Supreme Court in Rose encouraged judges to screen and, if necessary, limit victim impact presentations. A written motion before the hearing puts that duty in front of the court.
3. Object specifically. An objection that names the problem, reliability under Rule 26.7(b) and due process, converts review from fundamental error to a standard the defense can realistically win.
4. Use the right to explain, support or deny. When a presentation goes beyond what the victim actually said or did, § 13-4426.01 gives the defense the floor to say so before the judge rules.
5. Make mitigation concrete. Horcasitas’s clean record and remorse were found as mitigating factors, yet the judge said the family’s loss reduced their “effectiveness or power.” Mitigation presented through evaluations, witnesses and documents is harder to discount than mitigation argued in a sentence or two.

None of this is hostile to victims, who keep a powerful voice under Arizona law. Horcasitas answers a narrower question: whether a judge may treat a machine’s performance as the victim’s own testimony. The answer is no.

What Did Horcasitas Decide About the Victim’s Text Messages?

The appeal also challenged the exclusion of text messages found on the victim’s phone, and here the defense lost. The lesson is that discovery and admissibility are separate questions. The same messages that forced a new trial because the State hid them could still be kept from the jury once they were disclosed.

Messages from the victim’s brother-in-law, telling him to stop being so aggressive and that he “snap[s]” in his truck, were general assessments of character rather than specific acts, so they were not admissible as other-act evidence under Rule 404(b). And although a defendant may prove a victim’s character for aggression, Rule 405(a) limits the form to reputation or opinion testimony from a witness, not extrinsic texts. Horcasitas could not serve the brother-in-law with a subpoena, so the opinion never reached the jury.

A separate text sent by the victim three days before the shooting, describing despair and self-harm, was admissible as a statement of his then-existing state of mind under Rule 803(3). The trial judge still excluded it under Rule 403, and the Court of Appeals deferred to that balancing because numerous eyewitnesses had already described the victim as angry, agitated and advancing.

What Happens at the Resentencing?

The conviction for manslaughter as a dangerous offense is affirmed, and the concurrent 2.25-year endangerment sentence from the guilty plea was not disturbed. The case returns to Maricopa County Superior Court for a new sentencing hearing on the manslaughter count, with the same 7-to-21-year range under § 13-704(A). The judge may again hear from the victim’s family, but not through the AI video. The opinion did not direct that a different judge preside; whether to seek one is a strategic question governed by the rules on changing your judge in Arizona. For where sentencing falls in a felony case, see the Arizona criminal court process, and for how these cases are charged and defended, our violent crimes defense page.

How Tamou Law Group Defends You at Sentencing

Pre-charge advocacy. In confrontation and self-defense cases, the charging decision often sets the sentencing range before a jury ever hears the facts. We put the justification evidence in front of prosecutors early, because the difference between a dangerous-offense manslaughter charge and a lesser count is measured in years.

Disclosure strategy. Horcasitas was retried because the State withheld the victim’s phone records. We pursue the victim’s phone, prior statements and digital history through Rule 15.1 and Brady from the start, and we litigate how that material can be admitted, not just whether it must be produced.

Sentencing and appellate preservation. We prepare the mitigation case with evaluations and witnesses, ask the court in advance to screen victim impact media, object specifically to anything unreliable, and request that the judge state what the sentence rests on. Every one of those steps changes what an appellate court can do later.

Plea and collateral analysis. Before any offer is accepted, we analyze the sentencing exposure it actually carries, including dangerous-offense flat time, immigration, licensing and firearm consequences. Learn more about Tamou Law Group.