TEXAS TECH UNIVERSITY SCHOOL OF LAW
CAPITAL PUNISHMENT:
EXPERT PREDICTION TESTIMONY,
THE FIFTH AND SIXTH AMENDMENTS AND COMPELLED
PSYCHIATRIC EXAMINATIONS, AND PREDICTIONS
OF FUTURE DANGEROUSNESS
A Paper Submitted to Professor Daniel H. Benson
By
W. Stacy Trotter
August
9, 1983
Advanced Independent
W t ,
Research
TABLE OF
CONTENTS
I.
INTRODUCTION
1
II.
CAPITAL PUNISHMENT
4
III. THE ESTELLE DECISION
IV.
V.
VI.
5
THE FIFTH A N D SIXTH A M E N D M E N T S A N D THE
OF THE EVIDENCE
NATURE
15
PREDICTIONS OF FUTURE D A N G E R O U S N E S S A N D VARIOUS
VIEWPOINTS
23
CASES SUBSEQUENT TO ESTELLE V. SMITH
29
VII. C O N C L U S I O N
31
FOOTNOTES
37
00473
I.
INTRODUCTION
A psychiatric
most
examination
t h o u g h t s and f e e l i n g s .
requires
the c o o p e r a t i o n
explores a person's
An effective
of the person
discloses otherwise unobtainable
s u b s t a n c e of these d i s c l o s u r e s
diagnosis.
dant,
When the person
unwittingly
examined
psychiatric
from being
gical predictions
defen-
by the p r o s e c u t o r
to
Thus, a d e f e n d a n t
may
to
This raises t h e issue
the Fifth
compelled
of
Amendment
to submit
on p s y c h i a t r i c and
of d a n g e r o u s n e s s
one being
the laws of several
imposed
the
to
examinations.
T h e legal system relies
contexts,
often
his
is a criminal
w h e t h e r , and under what c i r c u m s t a n c e s ,
protects defendants
about
himself when compelled
c o o p e r a t e with a p s y c h i a t r i s t .
He
to form a p s y c h i a t r i c
upon the e x a m i n a t i o n .
incriminate
examined.
f r e q u e n t l y use
the p s y c h i a t r i s t may b e called
t e s t i f y based
examination
information
l i f e to the p s y c h i a t r i s t , w h o will
inner-
the c a p i t a l
states,
if the sentencing
psycholo-
in a w i d e v a r i e t y
sentencing
process.
the death p e n a l t y may
authority
is convinced
beyond
capital defendant
dangerous,
further
1
00474
acts of
Under
be
r e a s o n a b l e d o u b t that a c o n v i c t e d
i.e., likely to c o m m i t
of
a
is
criminal
violence posing a continuing danger to society.1
Prosecutors in these jurisdictions have relied
primarily,
if not exclusively, upon clinical predictions of
dangerousness rendered by psychiatrists and
appearing as expert witnesses
ceedings. ^
in capital sentencing
Texas has such a proceedings
cated guilt/sentencing
psychologists
pro-
in its bifur-
procedure in capital
trials.
Convicted capital defendants, sentenced to death
largely
on the basis of such predictions, have often
appealed
their sentences on the grounds that clinical
predictions
of dangerousness are notoriously unreliable and
curate.
Yet the courts, including the United
inac-
States
Supreme Court, have consistently upheld the use of such
predictions as a predicate for imposition of the death
penalty.^
Recently, the United States Supreme Court held in
Estelle v. Smith,4 that the Fifth Amendment
against self-incrimination
privilege
bars the use at a capital
sen-
tencing proceeding of testimony based upon a compelled
psychiatric examination unless the defendant
is advised
before the psychiatric examination that he has a right to
remain silent.5
The Court also based its decision
the Sixth Amendment right to counsel.
The Court
upon
concluded
that the respondent's right to counsel attached when the
psychiatrist examined him because the interview
to a critical stage in the proceedings.®
amounted
Defense counsel
should have been notified of the examination, and the
respondent should have been afforded the assistance of
counsel in the decision to submit to the examination.^
addressing
the controversy surrounding
in
the predictability
of dangerousness, the Estelle Court relied upon Jurek v.
Texas,8
which upheld the constitutionality of the Texas
Death Penalty Statute.9
The Estelle Court indicated
that
predictions of future dangerousness are commonplace in our
system of criminal justice and that dangerousness need not
be proved by psychiatric t e s t i m o n y . T h e
Court
further
announced that the nature of the evidence derived from a
psychiatric examination
is "communicative" and not "testi-
monial" and that there is no basis to distinguish
between
the guilt phase and the penalty phase of the Texas death
penalty statute insofar as the protection of the Fifth
Amendment privilege is
concerned.^
In spite of the Court's holding
in Estelle,
psychiatric and psychological predictions of dangerousness
remain a significant means of persuading
3
00476
the jury that a
convicted capital defendant poses a threat to society and
thus merits the death penalty.
When a psychiatrist
or
psychologist appears as an expert witness in a capital
sentencing proceeding, his or her presumed
scientific
objectivity and commitment to healing are likely to exert
a strong influence on a lay jury confronted with an awesome decision.
II.
CAPITAL
PUNISHMENT
The drama of the death penalty dominated
jurisprudence in 1976.
criminal
After the United States
Supreme
Court announced in Furman v. Georgia,12 that existing
pro-
cedures for assessing the death penalty were unconstitutional, many states immediately enacted statutes
for new procedures.
providing
In 1973, the Texas legislature
re-
sponded by devising a bifurcated proceeding consisting
a guilt stage and a penalty stage.13
of
The Supreme Court
ended the long period of doubt over the
constitutionality
of capital punishment with its decision in Gregg v.
Georgia.14
in addition, it upheld the Texas death
penalty procedure enacted in 1973 by affirming Jurek v.
Texas.I5
The Supreme Court discussed the Texas
in capital casesl^ in light of the Georgia and
16
procedure
Florida
statutes which were simultaneously u p h e l d , w h i l e
same time it struck down the Louisiana and North
statutes
for failure to permit
mitigating
circumstances.In
July of 1 9 7 6 , t h e
First, the Court concluded
several broad
the need
range of information
in Lockett23
for consideration
HI-
THE ESTELLE
of a w i d e
factors in
capital
i m p o s e d . 2 2
The
DECISION
sentencing
procedure,25
a
trial of Texas'
doctor's testimony
examinations
duced at the sentencing
p h a s e to help juries d e t e r m i n e
a recently convicted
is frequently
based
on pretrial psychiatric
to commit similar
rule
Oklahoma.24
In the bifurcated guilt/sentencing
capital
v.
further affirmed by the
w a s
Supreme Court in Eddings v.
penalty
procedures present a
cases before the death sentence may be
promulgated
in
punish-
for d e a t h . L o c k e t t
and mitigating
of
proposi-
that the death
m a y not be imposed w h e r e sentencing
O h i o , 2 1 confirmed
Carolina
the five cases decided
Court provided
risk of arbitrary selection
the
sufficient consideration
tions with respect to the imposition of capital
ment.
at
criminal has a dangerous
acts in the future.
5
n>m
if
propensity
Before the
in E s t e l l e v. Smith,26 this procedure was not
intro-
decision
considered
incriminating and therefore not in violation of the Fifth
Amendment.
Through Estelle,27 the United States Supreme
Court reversed the direction of its previous decisions and
applied the Fifth Amendment privilege against
self-incrimination
compelled
to state initiated pretrial
psychiatric
examinations.
The State of Texas indicted Ernest Smith for murder
for his participation
in an armed robbery in which his
accomplice shot and killed a grocery clerk.28
State announced
After
its intention to seek the death
penalty,
the trial judge ordered a psychiatric examination
determine the defendant's competency to stand
the
to
trial.
The trial judge testified at a later habeas corpus
pro-
ceeding conducted by the Federal District Court that in
all capital cases he ordered an examination of the defendant to ascertain competency to stand trial.30
Based on
this examination, the psychiatrist, Dr. Grigson,
Smith competent.31
found
Dr. Grigson conducted a 90-minute
interview of the defendant
in the jail.32
However, Dr.
Grigson did not provide the trial court with a report of
this psychiatric examination.
Instead, he filed with the
court a summary letter indicating the defendant's
16
competence.33
The trial court did not notify defense
counsel of the examination.
neys discovered
Subsequently, Smith's
attor-
the letter in the court file at trial.
Defense counsel apparently did not become alarmed,
in part
because they had not raised the issue of the defendant's
mental competency, and more importantly, because Dr.
Grigson's name did not appear on the State's list of
witnesses.34
Furthermore, this was not the first
time
Dr. Grigson examined a criminal defendant for the State.
In several reported cases in which Dr. Grigson
the trial court sentenced the defendant to
At trial, a jury found Smith guilty of
testified,
death.35
m u r d e r . 3 6
Under the Texas capital punishment statute, a separate
sentencing procedure is conducted to determine whether
defendant is sentenced to death or life
imprisonment.37
In order to impose the death penalty, the jury must
matively answer the following three special
issues:
1. whether the conduct of the defendant that caused the death of the deceased
was committed deliberately and that the
reasonable expectation that the death of
the deceased or another would result;
2. whether there was a probability
that the defendant would commit criminal
acts of violence that would constitute a
continuing threat to society; and
46
00480
the
affir-
3.
if raised by the evidence, whether
conduct of the defendant in killing the deceased was unreasonable in response to the
provocation, if any, by the deceased.38
One of these issues requiring an affirmative
answer
from the jury was whether the defendant posed a continuing
threat to society.
At Smith's sentencing hearing,
State called Dr. Grigson as its only witness.39
the
The trial
judge allowed Dr. Grigson to testify even though his name
did not appear on the list of State's
witnesses.He
testified, based on his pretrial examination to
competency, that he found Smith to be a "very
sociopath"who
determine
severe
would commit similar criminal acts of
violence that would constitute a continuing threat
society if given the o p p o r t u n i t y . 4 2
on direct
Dr. Grigson
to
testified
examination:
(a)
path" ;
That Smith "is a very severe
socio-
(b) That "he will continue his previous
behavior";
(c) That his sociopathic condition will
"only get worse";
(d) That he has no "regard for another
human being's property or for their life, regardless of who it may be";
(e) That "[t]here is no treatment, no
medicine...that in any way at all modifies or
changes this behavior";
8
(f) That he "is going to go ahead and commit other similar or same criminal acts if given
the opportunity to do so"; and
(g) That he "has no remorse or sorrow
what he has done."43
After
the jury had found Smith dangerous and had made the
other two findings required
by the Texas death
statute, the trial court sentenced
T e x a s statute required
ative.
penalty
Smith to d e a t h . 4 4
the questions
in the
affirm-
The Texas Court of Criminal Appeals affirmed
conviction and death
Smith unsuccessfully
for a writ of habeas corpus
Federal District Court
granted
the sentencing
in the State
petitioned
courts,the
for the Northern District
the writ, affirming
the death p e n a l t y . 4 ®
the
sentence. 4 **
After the defendant
the conviction but
of Texas
vacating
The District Court concluded
procedure violated
the defendant's
that
Fifth,
Sixth, Eighth and Fourteenth A m e n d m e n t rights, and
mony
The
the trial court to impose the death
penalty once the jury answered
error
for
found
in the trial court's allowance of psychiatric
into e v i d e n c e . i n
concluding
that Smith had
denied due process of law in violation
of the
testibeen
Fourteenth
A m e n d m e n t , the District Court cited the following
factors:
1. the prosecutor rather than the Court
formed Dr. Grigson of his appointment;
in-
2. neither the trial judge nor the prosecutor notified defense counsel of the appointment;
3. Dr. Grigson did not file a psychiatric
report with the Court;
4. defense counsel never received a copy of
Dr. Grigson's letter to the judge summarizing his
conclusions;
5.
the prosecutor deliberately omitted Dr.
Grigson's name from the witness list in violation
of a trial court order, despite the prosecutor's
intent to call Dr. Grigson as a witness to have
him give direct testimony;
6. the trial judge appointed the psychiatrist only to determine competency, but permitted
him to testify on the unrelated issue of "dangerousness" ; and
7.
the trial judge allowed the prosecutor
to mislead the jury to believe that Dr. Grigson
had been appointed by the Court for the purpose
of determining the defendant's dangerousness,
thus implying that the Court vouched for the accuracy of Dr. Grigson's testimony.50
In addition, the District Court held that numerous due
process violations amounted to a denial of the effect of
assistance of counsel.51
The District Court,
therefore,
considered the sen-tence invalid under the Sixth
A m e n d m e n t . 5 2
The District Court also determined that the
sentencing procedure violated Smith's Eighth Amendment
rights because the defendant did not have an
opportunity
to present mitigating circumstances, a con-stitutional
prerequisite to the validity of the Texas death
005:17
penalty statute.53
Finally, the District Court
that the admission of Dr. G r i g s o n ' s testimony
concluded
violated
Smith's Fifth A m e n d m e n t right to remain s i l e n t . 5 4
The
District Court considered
because
Dr.
the evidence testimonial
Grigson based his findings on the content of disclo-
sures m a d e by
S m i t h .
5
The District Court held that
5
State must advise the defendant
the
of his right to remain
it wishes to examine him on the issue of
if
dangerousness.56
The United States Court of A p p e a l s for the Fifth
Circuit a f f i r m e d . T h e
Circuit Court relied
Gardner v. F l o r i d a , w h i c h
in part on
grants defense counsel
an
opportunity
to challenge the accuracy or m a t e r i a l i t y
information
that
is the basis
for the death
The Circuit Court also partly adopted
rationale.
Characterizing
penalty.
the District
the evidence from the
tric examination as testimonial,
of
psychia-
the Fifth Circuit
that the Fifth Amendment requires the prosecutor
Court's
held
to notify
the defendant before the examination of his right to remain s i l e n t . 6 0
the defendant
In addition, the Circuit Court stated
should be afforded
the assistance of
that
counsel
in deciding whether to submit to the e x a m i n a t i o n . O n
11
00484
writ
of certiorari, the Supreme Court of the United
States
affirmed, holding that the defendant's Fifth Amendment
privilege against self-incrimination
bars the use of psy-
chiatric testimony at the penalty phase of the
trial, unless the defendant
defendant's
is advised before the psychia-
tric examination that he has a right to remain
s i l e n t .
The Court began its analysis by determining
6
2
whether
the Fifth Amendment applies to the penalty phase of the
trial once the issue of guilt has been adjudicated.
In
finding the Fifth Amendment applicable at this stage of
the proceedings, the Court reiterated the essence of the
constitutional principle:
the requirement that the State,
which proposes to convict and punish an individual, must
produce the evidence against the defendant through its own
efforts rather than by forcing the defendant to aid the
p r o s e c u t i o n .
6
3
citing
In re: Gault, the Court noted
that
the availability of the privilege does not turn upon the
type of proceeding
in which it is invoked, but
instead
upon the nature of the statement or admission and the exposure that it i n v i t e s . 6 4
Because of the grave
consequen-
ces associated with the capital sentencing proceeding,
the
Court found no reason to distinguish between the guilt and
46
00485
penalty phases of a capital murder trial in regard
Fifth Amendment
to
protections.65
The Court next considered whether the Fifth Amendment
applies to testimony arising
from a defendant's
during a psychiatric examination.
statements
The Court rejected
State's contention that because Smith's statements
the
were
non-testimonial, they did not warrant Fifth Amendment protection.
punishment
Applying Fifth Amendment principles to the
s t a g e , t h e
Court found Smith's statements
to
be testimonial, as they were based on the substance of his
d i s c l o s u r e s . 6 8
Although the Court had previously
that the Fifth Amendment is not violated when the
held
evidence
given by the defendant either is not the product of communication or is not used for its testimonial
c o n t e n t , 6 9
the Court considered such cases materially different
Estelle.70
from
Dr. Grigson based his diagnosis on the sub-
stance of statements made by the defendant, not on mere
observation.The
Court concluded that the Fifth
Amendment privilege applied because the State's only evidence in support of the death penalty derived from the
content of the defendant's disclosures during the pretrial
psychiatric
examination.72
46
00486
The Court mandated the State warn the defendant
his right to remain silent before the psychiatric
tion. 73
Quoting
from its opinion in Miranda v.
of
examina-
A r i z o n a , 7 4
the Court stated that the Fifth Amendment protects
persons
"in all settings in which their freedom of action is curtailed in any significant way."75
That a defendant
is
questioned by a psychiatrist rather than by a police officer is immaterial.76
The Court agreed with the Fifth
Circuit that the admission of Dr. G r i g s o n 1 s testimony at
the penalty phase of the trial violated Smith's Fifth
Amendment rights.77
Furthermore, the Court noted no Fifth
Amendment issues would have arisen had the testimony
limited to determining
been
the issue of Smith's competency to
stand trial or his sanity at the time of the commission of
the offense.78
Additionally, the Court held Smith's Sixth
Amendment right to counsel was violated when he was not
given an opportunity to consult with his attorney prior
the examination.79
The Court held the psychiatric
exami-
nation to determine competency was a "critical stage" of
the proceedings and, therefore, the defendant's right to
counsel had already
attached.8°
005:1744
to
IV.
THE FIFTH AND SIXTH AMENDMENTS AND THE NATURE OF THE
EVIDENCE:
The privilege against self-incrimination derives
from
the Fifth Amendment, which provides that "[n]o person... shall
be compelled in any criminal case to be a witness
himself...."81
against
in Malloy v. Hogan,82 the Supreme Court
ap-
plied the privilege to the states through the Fourteenth
Amendment.83
This common law right extended to the ac-
cused and witnesses at both civil and criminal
proceedings
and included questions which might disgrace the witnesses. 84
The literal language of the amendment,
however,
limits the privilege to a criminal defendant testifying
at
his own trial and although the Supreme Court has at times
adhered to this narrow interpretation of the amendment,85
it generally has construed the amendment broadly.86
There-
fore, the Court has found an implied intent in the Constitution to preserve the common law practice.87
The Supreme Court's willingness to go beyond
the
literal language of the Fifth Amendment privilege dates
back nearly a century to Counselman v. Hitchcock.88
The
petitioner had been jailed for contempt after refusing
answer questions before a grand
jury.89
005:17
Claiming
to
that the
answers would
have
incriminated
Fifth Amendment rights,
habeas
c o r p u s . T h e
jected
the g o v e r n m e n t ' s
tional
privilege
case.91
broad
protection,92
Court,
is c o m p e l l e d
him
crime.93
The Court
cation
Miranda
beyond
acting
to g i v e
subsequently
witnesses
v. A r i z o n a , 9 4
dant during
f r o m the d e f e n d a n t
while
ing
police
coercive,
the Court
defendant's
provides
privilege
in a n y
proimplicate
judicial
proceedings.
the
by the p o l i c e
in
all four
he w a s
in their
interrogation
safeguards
are "the product
16
appliIn
prosecution
from a
without
privilege
a
considered
confession
custody.96
is
defen-
demonstrating
cases
the p o l i c e o b t a i n e d
imposed
statements
criminal
to s e c u r e t h e d e f e n d a n t ' s
in M i r a n d a ,
that c u s t o d i a l
in a
the p r i v i l e g e s
interrogation
of
re-
expanded
self-incrimination.95
by t h e C o u r t
a writ
that m a y
held that
his
constitu-
the
testimony
obtained
a custodial
t h e u s e of s a f e g u a r d s
against
and
that
as a w i t n e s s
the Court
m a y not u s e s t a t e m e n t s
that t h e
the Fifth A m e n d m e n t
held
of
the writ,
only a defendant
the Court
ceeding,
sought
in g r a n t i n g
contention
that
applies when a person,
in a
the petitioner
protects
Indicating
him in v i o l a t i o n
Find-
inherently
to i n s u r e that
of his
free
the
choice," not compulsion.97
the requisite m i n i m u m
Further, the Court
explained
safeguards:
Prior to any q u e s t i o n i n g , the person
must be warned that he has a right to remain
silent, that any statement he does m a k e may
be used as evidence against him, that he has
a right to the presence of an attorney, either
retained or appointed.
The defendant may
waive effectuation of these rights, provided
the waiver is made voluntarily, knowingly and
intelligently.
If, however, he indicates in
any manner and at any stage of the process
that he wishes to consult with an attorney
before speaking, there can be no q u e s t i o n ing. Likewise, if the individual is alone
and indicates in any manner that he does
not wish to be interrogated, the p o l i c e
may not question him.98
In In re: Gault,99
the Court again broadly
ed the Fifth A m e n d m e n t by holding
self-incrimination
ceedings. 100
requirement
protects
that the privilege
juveniles
in d e l i n q u e n c y
against
pro-
prior to Gault, the Court held that the basic
of due process and fairness must be
in juvenile delinquency
proceedings.101
quently held, however, that
a trial by j u r y . 1 0 2
juvenile
interpret-
The Court
subse-
juveniles are not entitled
However,
lewd telephone calls,
a judge committed him to the State School until
State Court denied
16
to
in Gault, police took a
into custody for making
majority.The
present
and
he reached
the defendant
most
due process rights in addition to his Fifth Amendment
privilege against s e l f - i n c r i m i n a t i o n . R e v e r s i n g
the
Arizona Supreme Court's dismissal of the petitioner's
writ
of habeas corpus, the Court concluded that the privilege
applied even though juvenile delinquency proceedings
are
nominally civil rather than c r i m i n a l . T h e
ex-
Court
plained that commitment as a juvenile delinquent
privation of
l i b e r t y . I
0 6
is a de-
Thus, the availability of the
privilege depends on the defendant's potential loss of
liberty, rather than on the denomination of the proceedings as civil or
criminal.107
Traditionally, the United States Supreme Court has
focused on the nature of the evidence to determine whether
it is "testimonial"
or "communicative" in nature and,
fore protected by the Fifth
of Miranda v.
questioning
A m e n d m e n t . T h e
A r i z o n a , e x t e n d e d
there-
landmark
case
the privilege of pretrial
of a detained suspect, prohibiting
statements obtained during custodial
the use of
interrogation
certain procedural safeguards were f o l l o w e d . H °
unless
Addition-
ally, a defendant's Sixth Amendment right to assistance of
c o u n s e l H l may be violated when statements obtained
interrogation are sought to be used against h i m . H 2
during
The
right to counsel has been uniformly guaranteed in capital
18
00491
c a s e s at the p r e t r i a l
stage"
stage,
in any p r o c e e d i n g
a c c u s e d may be
during
a criminal proceeding
controvery.115
psychiatric
testimony
testimony
However,
or " t e s t i m o n i a l "
refused
tion.
Fifth
does
not
to
the S u p r e m e Court
examination
category.
in the
Institution.120
v.
McNeil v.
Director,
in both t h e s e
to a p p l y the Fifth
00492
to
compelled
the claim of Fifth A m e n d m e n t
Texas a l s o refused
would
The Court's reluctance
The Court
it was
"communicative"
e x a m i n a t i o n s was e v i d e n c e in M u r e l
to c o n s i d e r
absence
b e f o r e E s t e l l e v. S m i t h , 1 1 8
Baltimore City Criminal C o u r t , a n d
Patuxent
scien-
concluded
by the
examination
a p p l y the Fifth A m e n d m e n t p r i v i l e g e to
psychiatric
have
Sixth A m e n d m e n t right
to d e t e r m i n e w h e t h e r
p l a c e the p s y c h i a t r i c
analogy
have held that the
of c o u n s e l during a p s y c h i a t r i c
v i o l a t e the d e f e n d a n t ' s
an
has
and other types of
is not p r o h i b i t e d
courts
a
self-incrimination
Some c o u r t s , drawing
Amendment.Several
difficult
psychiatric
violates
t i f i c a n a l y s i s w h i c h are n o n - t e s t i m o n i a l ,
counsel. 1 1 "'
"critical
r i g h t s of an
the a d m i s s i o n of
d e f e n d a n t ' s p r i v i l e g e against
psychiatric
the
affected.114
t e s t i m o n y during
between
j
where substantial
T h e issue of whether
showed
a n (
cases
viola-
Amendment
privilege to compelled psychiatric examinations.
The
Texas Court of Criminal Appeals stated in Blankenship v.
State,121
that "a mental examination is not a confession,
and therefore would not be subject to the requirements
and
rules laid down by the Supreme Court in [Escobedo and
Miranda]."122
other courts, however, have found
psychia-
tric evidence to be communicative evidence within the purview of the Fifth Amendment, since psychiatrists draw their
conclusions from the content of the defendant's
rather than non-testimonial aspects of the
statements
interview.123
Such courts have required Miranda warnings be given
prior
to psychiatric examinations to notify the defendant
that
the court-appointed
psychiatrist
is his
adversary.124
Additionally, a defendant has a right to assistance of
counsel in deciding whether to submit to a psychiatric
interview.125
In Estelle, the Fifth Amendment issue centered
the need for such warnings
nations.
in pretrial psychiatric
around
exami-
The State argued that the Fifth Amendment
lege was inapplicable to psychiatric examinations
the evidence derived from the examination was
monial in nature.126
privi-
because
non-testi-
i n support of this contention,
the
State relied on prior decisions holding that the Fifth
46
00493
Amendment has not violated when the evidence given by the
defendant
is neither related to some communicative act nor
used for its testimonial value.127
However, the Court
ruled that Dr. Grigson's diagnosis of Smith rested
prin-
cipally on his conclusion that Smith showed no remorse, a
conclusion drawn from the content of the statements
to him.
Specifically,
his prognosis was based
nial statements made or omitted by Smith while
the crime.128
on testimorecounting
Consequently, when Dr. Grigson went
the issue of reporting
made
beyond
on competency and testified for
prosecution on the crucial
role "became essentially
issue of dangerousness,
the
his
like that of an agent of the
State recounting unwarned statements made in a post-arrest
custodial
setting."129
Relying on Livingston v. S t a t e , I 3 0
the State
argued that the Fifth Amendment was inapplicable
psychiatric testimony was used only during
phase and not in establishing
guilt.131
in
the
further
because
sentencing
Livingston,
the Texas Court of Criminal Appeals refused to apply
the
Fifth Amendment privilege to psychiatric testimony at the
sentencing phase.132
The Texas Code of Criminal
Procedure
provides that "[n]o statement made by the defendant
examination
into competency shall be admitted
005:17
in
during
evidence
against the accused on the issue of guilt in any
proceeding...."133
However, the Estelle Court
criminal
rejected
the argument that the Fifth Amendment privilege has no
relevance to the sentencing phase of a capital murder
trial.
The availability of the privilege does not depend
upon the type of proceeding
involved, said the Court, but
upon the nature of the statement and the possible
quences. 134
conse-
Therefore, because the State used the psy-
chiatric testimony of the defendant against him the Fifth
Amendment privilege was applicable to protect the defendant from becoming
"the diluted instrument of his own
conviction."135
In addition to the Fifth Amendment privilege,
the
Court looked at the right to counsel and its role in the
pretrial psychiatric examinations.
Initially, the Supreme
Court in Massiah v. United States,136 extended the Sixth
Amendment right to counsel to all post-indictment
gations.
The Massiah Court held that statements
from a defendant outside the presence of retained
in an interrogation situation were
interroelicited
counsel
inadmissible.137
Later, in Escobedo v. Illinois,138 the Court stated
when the investigation process shifts from
"investigatory
to accusatory" and proposes to elicit a confession,
16
that
the
adversary
system
is put into o p e r a t i o n ,
m u s t be p e r m i t t e d
Estelle,
the C o u r t expanded
by holding
that
this Sixth A m e n d m e n t
in d e c i d i n g
examination.I40
was entitled
whether
stage"
of
V.
to s u b m i t
the p s y c h i a t r i c
in the p r o c e e d i n g s
jn
privilege
to the
T h e Court c o n c l u d e d
f e n d a n t ' s Sixth A m e n d m e n t g u a r a n t e e s
Therefore,
accused
with his a t t o r n e y . 1 3 9
the d e f e n d a n t
t a n c e of counsel
chiatric
to consult
and the
assis-
to the
that
psy-
the de-
had been v i o l a t e d . 143.
examination was a
that required
"critical
the " g u i d i n g
hand
counsel."I42
PREDICTIONS
OF FUTURE D A N G E R O U S N E S S A N D
VARIOUS
VIEWPOINTS
At the s e n t e n c i n g
answers
phase,
three q u e s t i o n s ,
if the jury
affirmatively
on w h i c h the S t a t e has the
of p r o o f beyond a r e a s o n a b l e d o u b t , the judge m u s t
t h e death s e n t e n c e . 1 4 3
"yes" unless
The
jury may not a n s w e r
it agrees u n a n i m o u s l y
issue "no" u n l e s s
t h r e e critical
the d e f e n d a n t ' s
issues put to the jury involves
future d a n g e r o u s n e s s :
that the d e f e n d a n t
of v i o l e n c e
that could
would
"Whether
005:17
any
issue
any
O n e of
the
assessing
there
commit criminal
constitute a continuing
44
impose
and m a y not answer
ten or m o r e jurors a g r e e . I 4 4
probability
burden
threat
is a
acts
to
society."145
it is in regard to this question that
expert
psychiatric prediction testimony has expressly been
approved by the Texas Court of Criminal Appeals at the
punishment phase of a capital trial.146
The Court of
Criminal Appeals dealt squarely with the issue of
psychiatric testimony at the punishment phase in Moore v.
State.147
in holding the psychiatric evidence
admissible,
the majority quoted Article 37.071 of the Texas Code of
Criminal Procedure which governs the punishment
pro-
ceedings, that "evidence may be presented as to any matter
that the court deems relevant to sentence."148
Further,
in Chambers v. State,149 the Court of Criminal
refrained from ruling on the issue of whether
Appeals
the
discipline of psychiatry is advanced sufficiently to predict future dangerousness.
Again, in Barefoot
v.
State,150 the Court of Criminal Appeals declined to reconsider its position on the admissibility of such
This lax interpretation of admitting
testimony.
into evidence at
the penalty phase "any matter the court deems
relevant"
has led to a graphic misuse of mental health testimony in
death penalty cases.151
It is felt that clinical
predic-
tions of future violence are either very tentative or
should not be made at all.152
The reason behind this is
005:17
44
that psychiatrists possess no special qualifications
making such predictions.
for
If this is the case, then
psychiatrists should not be allowed to testify as
"experts" on the issue of future dangerousness
because
they are no better equipped than jurors to draw conclusions from the
facts.153
Courts have considered psychiatrists "experts"
predicting the future dangerousness of an
in
individual.
This assumption of expertise rests upon two main
premises:
(1) that psychiatrists are able to reach conclusions
are reliable; and
v a l i d . I
5 4
i f
(2) that the conclusions reached
psychiatrist
a
1
5
5
are
is to be presented as an
"expert" witness, he should be required to meet
q u a l i f i c a t i o n s .
that
certain
one commentator feels that a detailed
set of standards for psychiatric and psychological
testi-
mony regarding dangerousness should be adopted, which he
believes "might encourage voluntary compliance by mental
health professionals who presently recognize no ethical
responsibilities
in this a r e a . " ! 5 6
Another
commentator
has proposed a set of guidelines designed to "restrict and
structure the use of such testimony."I 5 ?
these standards would be such that:
00498
Essentially,
1. An expert should decline to offer
any opinion on the dangerousness issue unless he has conducted a comprehensive personal examination of the defendant, with
extensive attention to developmental and
behavioral history, directed specifically
at the probability of future violence.
Under no circumstances should an examination
focused on competency to stand trial, or
even on the defendant's mental state at the
time of the offense, be used as a basis for
formulation of an opinion on dangerousness;
2. An expert witness should not express
an opinion on a defendant's dangerousness unless he has special training and experience
in conducting such evaluations, unless he is
fully familiar with the developing clinical
literature on this subject, and unless he
qualifies his opinions with the observation
that clinical predictions of future violence
currently lack imperical validation;
3. An expert witness asked to express
an opinion on a defendant's dangerousness
should do so only if the opnion derives from
a generally accepted diagnostic or psychodynamic framework....158
Therefore, psychiatrists would not be allowed to testify
unless he or she possessed special training and
in such predictions of future
experience
dangerousness.
In reality, psychiatrists are not trained in the
assessment or the prediction of "dangerousness"
for
neither medical schools nor textbooks are capable of
explaining
the method and criteria by which such eva-
luations are to be
made.159
Therefore, when a
psychiatrist or psychologist makes a prediction
005:17
44
of
Psychiatric testimony is especially susceptible to
uncritical acceptance by sentencing
juries.
Often
conclu-
sory, it is offered in such a manner that the jury is required to accept or reject it on the basis of its
assessment of the witness*
character.I60
Expert
intuitive
witnesses,
moreover, frequently have polished courtroom skills.
Not
only are they adept at creating an atmosphere in which
juries
are inclined to "trust" and "accept" them, but arguably the
witness' therapeutic training and expertise helps them to
persuade a jury to accept their views for reasons other than
the intrinsic weight and quality of the evidence.
Perhaps equally important, the dangerousness
itself creates a special risk of uncritical
inquiry
acceptance.
Jurors convinced that the defendant has committed an exceptionally reprehensible crime will almost invariably
exper-
ience retributive urgings to inflict the maximum penalty. The
law's task is to encourage the jurors to put these
ings aside, at least temporarily, and to consider
ly the issue of dangerousness
formation.
feelobjective-
in light of all available
in-
A conclusion that the defendant can be reliably
determined to threaten future homicidal acts, of course,
would reinforce the retributive pressures to impose death.
005:17
It is inevitable then that jurors will experience strong
pressure to accept uncritically mental health
professional
testimony because it leads to the results suggested
their retributive feelings.162
Although
by
jury decision-
making is necessarily a matter of speculation,
it is
reasonable to conclude from relatively close cases such as
Estelle that juries are in fact influenced by mental
health prediction testimony.
At a minimum, the jury's
conclusion that this testimony is credible is likely to
end or shorten their general deliberations, and
their attention on the issue of dangerousness
focus
alone.
The constitutional significance of these problems
would be reduced, of course, if state courts
recognized
them and took reasonable steps to minimize their
This has not happened.
impact.
The Texas Court of Criminal
Appeals has displayed minimal sensitivity to the special
problems presented by this testimony, and has summarily
concluded that such testimony is admissible.163
further declined to reconsider this position.
it has
As the
Texas Court of Criminal Appeals stated in Barefoot
State:164
This court is well aware that the
ability of psychiatrists to predict future behavior is the subject of wide-
005:17
44
v.
spread debate.
However, we are not inclined to alter our previous stated view
that a trial court may admit for whatever
v a l u e it may have to a jury psychiatric
testimony concerning the defendant's future
behavior at the punishment stage of a capital murder t r i a l . 1 6 5
Moreover,
the Court of Criminal A p p e a l s has held that
special training
or skill in prediction
is necessary
qualify a mental health professional as an expert
prediction,166
that conclusary
testimony
ambiguous statutory dangerousness
that testimony can occur
question.16^
resulting
from the abuse of such
is p e r m i s s i b l e , 1 6 7
for the potential
hypothetical
SMITH:
in both State and Federal Court.
appellant appealed
has
danger
The holding of Estelle has subsequently been
State,169
and
evidence.
CASES SUBSEQUENT TO ESTELLE V.
in Texas
in
Overall, the Court of Criminal A p p e a l s
little concern
VI.
to
in terms of the
in response to a
exhibited
no
followed
In T h o m p s o n
from a conviction of
v.
capital
murder at which his punishment was assessed at
death.170
A p p e l l a n t entered
for
the premises of the deceased
purposes of robbing
her and when the deceased
tried
escape, he shot her in the head which subsequently
her d e a t h . 1 7 1
tended
He then fled the s c e n e . 1 7 2
that the same Dr. James Grigson was
005:17
44
the
to
caused
Appellant
improperly
con-
allowed to testify for the jury at the penalty stage of
the trial concerning
his examination of appellant and his
subsequent conclusion that appellant would likely commit
future criminal acts of violence and that
constituted a continuing
appellant
threat to society.173
established that the prosecution requested that
it
was
Dr.
Grigson be appointed to examine appellant to determine the
likelihood that appellant would commit future acts of
v i o l e n c e . 1 7 4
such an order was approved by the trial
court but was never filed or served upon defense
until the time of trial.175
counsel
Further, the report made by
Dr. Grigson which stated his findings of the examination
was also never delivered
to the defense counsel.176
trial, defense counsel objected that appellant had
denied his Sixth Amendment right to consult with
At
been
counsel
prior to submitting to the examination and further that his
Fifth Amendment privilege against self-incrimination
violated.177
had been
Both such objections were overruled.178
trial, Dr. Grigson subsequently testified that "he
no indications of remorse or guilt feelings," and
found
stated
that "appellant had no mental disease or defect but did
have an antisocial personali t y•"179
H e
therefore
stated
that appellant was at the extreme end of the scale of
005:17
At
antisocial or sociopathic personality condition and
concluded that appellant would constitute a continuing
threat "to whatever society he happens to be in in the
future," and that he was extremely
dangerous.180
The State contended that such testimony
was
admissible relying on Livingston v. State.181
The Texas
Court of Criminal Appeals stated that although in the past
such testimony as that given by Dr. Grigson was relevant
to the jury's consideration of the special issues at the
penalty stage and hence admissible, that due to the recent
Supreme Court decision of Estelle v. Smith,182 the Court
of Criminal Appeals had no choice but to therefore
appellant's constitutional
objections.183
sustain
Therefore,
the
<Y\
Court of Criinal Appeals held that appellant's Fifth and
Sixth Amendment rights were violated due to the erroneous
admissibility of psychiatric testimony concerning
appellant's future
with similar
d a n g e r o u s n e s s . 1 8 4
the
Several other
facts both in State,185 and Federal
have subsequently followed this rationale and
cases
Court,186
holding.
VII. CONCLUSION
Basing
its decision directly upon Fifth and
Amendment rights, the Supreme Court in Estelle
005:17
Sixth
brought
pretrial psychiatric examinations squarely under the realm
of
M i r a n d a . 1 8 7
j n light of Estelle, prosecutors will no
longer be able to use psychiatric testimony at the sentencing phase of a capital trial unless the defendant
has
been warned of his right to remain silent,188 his attorney
has been notified,189 and he has then freely and
tarily agreed to proceed with the examination.190
Supreme Court, in Estelle, limited its holding
volunThe
to
situations where a defendant does not initiate a
psychiatric examination or voluntarily
psychiatric testimony.191
introduce
Under Estelle, a defendant who
raises the defense of insanity in any criminal
proceeding
can still be required to undergo a psychiatric
examination
by the State's psychiatrist without the Miranda
instruction.192
Similarly, the Court implied that a
defendant who wishes to offer psychiatric testimony at the
penalty phase of a capital trial must submit to an examination by the State's psychiatrist, and waives his privilege against self-incrimination.193
Furthermore,
competency examinations may be conducted without
warning
the accused of his rights, provided the results of the
examination are not sought to be introduced at the sentencing
phase.194
005:17
44
Estelle will hopefully eliminate juries'
excessive
reliance on psychiatric testimony admitted in the sentencing phase of a capital murder trial. Although
courts
have consistently approved the use of psychiatric
testi-
mony for predicting
future dangerousness,195
for inaccuracy requires measures to prevent
potential
psychiatric
experts from usurping the roles of jurors.196
Under
Estelle, there is hope that psychiatric testimony will not
be presented as frequently as in the past; thus,
juries
will have a greater opportunity to consider more
reliable
evidence.
Recently, the Supreme Court decided the case of
Barefoot v. Estelle.197
In this case, petitioner was con-
victed of capital murder in a Texas state court after a
jury trial and was subsequently sentenced to death.198
Two psychiatrists were called as witnesses to testify on
the petitioner's future dangerousness and stated
that
there was a probability that the petitioner would commit
further criminal acts of violence and would constitute a
continuing
threat to society.199
petitioner's contentions that
The Court
rejected
(1) psychiatrists are
incom-
petent to predict within an acceptable degree of reliability that a particular criminal will commit other
46
00506
crimes
in the future and so represent a danger to the community,
(2) that psychiatrists should not be permitted
about future dangerousness
in response to hypothetical
questions without having examined the defendant
sonally, and
to testify
(3) that under the particular
per-
circumstances
that the testimony of the psychiatrist was so unreliable
that the sentence should be set
a s i d e . 2 0 0
T h e
court
reiterated the constitutional principle that the likelihood of a defendant committing further crimes is a constitutionally acceptable criteria for imposing the death
p e n a l t y . 2 0 1
The Court further stated that it is essential
for the jury to have before it all possible
relevant
information about the individual defendant,
therefore
making such predictions of future criminal
i m p e r a t i v e . 2 0 2
conduct
Therefore, the Court is implying that such
prediction testimony is reliable and will continue to be
approved by the Court.
This recent decision
further
strengthens the case for the prosecution who will no doubt
continue to use such testimony to convict
capital
defendants.
When the decision of whether a criminal
defendant
shall live or die is put to the jury, only the most credible evidence should be used in the determination.
34
Because of the apparently low reliabiability of such predictions, it is important to look to the other, more credible evidence in considering the future dangerousness of
a criminal
d e f e n d a n t . 2 0 3
one potential solution in resolv-
ing the problems with psychiatric testimony is to have the
jury informed that the psychiatrist
is not an
"expert."
Such a change would prevent the jury from putting
emphasis on the prediction of the psychiatrist.
has recognized
undue
The Court
that the psychiatrist may become an arm of
the prosecution and force the defendant to
himself unknowingly.
incriminate
Estelle is the first decision in
which the Supreme Court has applied the privilege of selfincrimination to a psychiatric examination in any setting.
A psychiatric examination entails searching
individual's deepest thoughts and feelings.
into the
It represents
a deep intrusion into the innermost thoughts of the individual, an area that the Supreme Court has indicated
Fifth Amendment is designed to protect.
psychiatric examination
Thus,
the
the
is an especially appropriate con-
text in which to apply the Fifth Amendment.
Psychiatric and psychological predictions
dangerousness
of
in capital sentencing proceedings are not
expressly prohibited by present professional codes of
005:17
ethics.
Such predictions should be expressly
prohibited
by the ethical codes of psychiatry and psychology.
The
willingness of mental health professionals to give testimony containing
incomplete and misleading
information
con-
cerning diagnostic labels and procedures in psychiatric
predictions is professionally unacceptable.
Mental
health
professionals have an ethical obligation to formulate professional standards for courtroom testimony on
dangerousness.
Professional enforcement against
those
members of the professions willing to disregard such standards should follow.
Such standards would provide a basis
for more effective judicial scrutiny of expert
both on the trial court and appellate
Estelle v. Smith further
testimony,
level.
insures that Fifth and
Sixth
Amendment privileges will be available to the defendant at
every significant phase of a capital trial.
Hopefully,
psychiatric diagnosis will be introduced either less
fre-
quently, thereby insuring that the life/death decision
in
capital cases will properly return to the domain of the
jury, or will subsequently be governed by professional
ethical standards which will assure that such
and
prediction
testimony concerning the defendant's future dangerousness
will be both reliable and
accurate.
46
00509
FOOTNOTES
!• Idaho Code § 19-2512 (1979); Okla. Stat. Ann, tit.
21, § 701.12(7) (West 1982); Tex. Code CrTm. = Proc.
A n n . §37.071 (Vernon 1981); Vg._Coffe § 19.2-254.2 to
?5 (1979); Wash. Rev. Code ATfn. g 10.95.070(8)
=
(1982).
""
~
2. Simmons v. State, 623 S.W.2d 416 (Tex. Crim. App.
1981); Fearance v. State, 620 S.W.2d 577 (Tex. Crim.
App. 1980), cert, denied, Fearance v. Texas, 454 U.S.
899 (1981); Holloway v. State, 613 S.W.2d 497 (Tex.
Crim. App. 1981); Brandon v. State, 599 S.W.2d 567
(Tex. Crim. App. 1979), vacated, Brandon v. Texas,
453 U.S. 902 (1981); Rodriquez v. State, 597 S.W.2d
917 (Tex. Crim. App. 1980), vacated, Rodriquez v.
Texas, 453 U.S. 906 (1981); Barefoot v. State, 596
S.W.2d 875 (Tex. Crim. App. 1980), cert, denied, 453
U.S. 913 (1981); Adams v. State, 577 S.W.2d 717 (Tex.
Crim. App. 1979), rev'd., Adams v. Texas, 448 U.S. 38
(1980); Woods v. State, 569 S.W.2d 901 (Tex. Crim.
A p p . 1978), cert, denied, Woods v. Texas, 453 U.S.
913 (1981); Chambers v. State, 568 S.W. 2d 313 (Tex.
Crim. App. 1978), cert, denied, Chambers v. Texas,
440 U.S. 928 (1979); Robison v. State, 548 S.W.2d 63
(Tex. Crim. App. 1977); Moore v. State, 542 S.W.2d
664 (Tex. Crim. App. 1976), cert, denied, Moore v.
Texas, 431 U.S. 949 (1977); Livingston v. State, 542
S.W.2d 655 (Tex. Crim. App. 1976), cert, denied,
(Tex. Crim. App. 1976), Livingston v. Texas, 431 U.S.
933 (1977); Gholson v. State, 542 S.W.2d 395 (Tex.
Crim. App. 1976); Smith v. State, 540 S.W.2d 693
(Tex. Crim. App. 1976), cert, denied; Smith v. Texas,
430 U.S. 922 (1977).
3. Estelle v. Smith, 451 U.S. 454 (1981); Jurek v.
Texas, 428 U.S. 262 (1976); Chambers v. State, 568
S.W.2d 313 (Tex. Crim. App. 1978), cert, denied,
Chambers v. Texas, 440 U.S. 928 (1979).
4. 451 U.S. 454
(1981).
5. Id. at 467-69.
28. Id. at 456.
7. Id.
38
00510
8. 428 U.S. 262
9.
(1976).
at 275-76.
10. 451 U.S. at
473.
11. IcL at 462-63.
12. 408 U.S. 238
(1972).
13. Tex. Code Crim. Proc. Ann. § 37.071
14. 428 U.S. 153
(1976).
15. 428 U.S. 262
(1976).
(Vernon 1981).
16. Tex. Penal Code Ann. § 12.31 (Vernon 1974); Tex. Code
C r i m . ~ P r o c . " A n n . 3 7 . 0 7 1 (Vernon 1981).
=
17. Proffitt v. Florida, 428 U.S. 242
Georgia, 428 U.S. 153 (1976).
(1976); Gregg
v.
18. Roberts v. Louisiana, 428 U.S. 325 (1976); Woodson v.
North Carolina, 428 U.S. 280 (1976).
19. Roberts v. Louisiana, 428 U.S. 325 (1976); Woodson v.
North Carolina, 428 U.S. 280 (1976); Jurek v. Texas,
428 U.S. 262 (1976); Proffitt v. Florida, 428 U.S.
242 (1976); Gregg v. Georgia, 428 U.S. 153 (1976).
20. Gregg v. Georgia, 428 U.S. 153, 188
21. 438 U.S. 586
(1976).
(1978).
22. IcL at 602-08.
23. 438 U.S. 586
24. 102 S.Ct. 869
(1978).
(1982).
25. Tex. Code Crim. Proc. Ann. § 37.071
26. 451 U.S. 454
(1981).
27.
28. Id. at 456.
38
00511
(Vernon
1981).
29. Id. at
456-57.
30. Smith v. Estelle, 445 F. Supp. 647, 651 (N.D. Tex.
1977), aff'd., 602 F.2d 694 (5th Cir. 1979), aff'd.,
451 U.S. 454 (1981).
31. 451 U.S. at
457.
32. Id.
33. Id.
34. 445 F. Supp. at 652.
35. G r i j a l v a v. Stat<? 614 S.W.2d 420 (Tex. Crim. App.
1980); Brandon v. State, 599 S.W.2d 567 (Tex. Crim.
A p p . 1980), vacated, Brandon v. Texas, 453 U.S. 902
(1981); Barefoot v. State, 596 S.W.2d 875 (Tex. C r i m .
A p p . 1980); cert, denied, 453 U.S. 913 (1981);
S i m m o n s v. State, 594 S.W.2d 760 (Tex. Crim. App.
1980); Adams v. State, 577 S.W.2d 717 (Tex. Crim.
A p p . 1979), rev'd., Adams v. Texas, 448 U.S. 38
(1980); Chambers v. State, 568 S.W.2d 313 (Tex. C r i m .
A p p . 1978), cert. denied, C h a m b e r s v. Texas, 440 U . S .
928 (1979); Hughes v. State, 562 S.W.2d 368 (Tex.
C r i m . A p p . 1976), cert, denied, 430 U.S. 959 (1977);
Robinson v. State, 548 S.W.2d 63 (Tex. Crim. A p p .
1977); M o o r e v. State, 542 S.W.2d 664 (Tex. Crim.
A p p . 1976), cert, denied, M o o r e v. Texas, 431 U.S.
949 (1977); Livingston v. State, 542 S.W.2d 655 (Tex.
C r i m . A p p . 1976), cert. denied, Livingston v. Texas,
431 U.S. 933 (1977); Armstrong v. State, 502 S.W.2d
731 (Tex. Crim. A p p . 1973).
36. 451 U.S. at
460.
37. T e x . Code Crim. Proc. A n n . § 37.071
38. Id. at §
37.071(b).
39. 451 U.S. at
40. Id. at
41.
458.
458-59.
Id.
28. Id. at 456.
41
38
(Vernon
1981).
43. Idi at 459-60.
44. Id^ at 460.
45. Tex. Code Crim. Proc. Ann. § 37.071(e)
(Vernon
1981).
46. Smith v. State, 540 S.W.2d 693 (Tex. Crim. App.
1976), cert, denied, Smith v. Texas, 430 U.S. 922
(1977) .
47. Smith v. Estelle, 445 F. Supp. 647, 654 (N.D. Tex.
1977), aff'd., 602 F.2d 694 (5th Cir. 1979), aff'd.,
451 U.S. 454 (1981).
48. Id^
49. Id^
50. 445 F. Supp. at 658.
51. Id^ at 660-61.
52.
53. IcL at 658-59.
54. Id^ at 664.
55. Id^ at 661-62.
56. Id^ at 664.
57. Smith v. Estelle, 602 F.2d 694, 696
aff'd., 451 U.S. 454 (1981).
58. 430 U.S. 349
59
- ISLl
at
(5th Cir. 1979),
(1977).
355-61.
60. 602 F.2d at 709.
61. Id_i.
62. Estelle v. Smith, 451 U.S. 454, 471
63. Id^_ at 462 .
64. Id.
40
(1981).
65.
at
462-63.
66. IcL at 463-64.
67. Ick at 463.
68. IcK at 463-64.
69. United States v. Dionisio, 410 U.S. 1 (1973); Gilbert
v. California, 338 U.S. 263 (1967); Schmerber v.
California, 384 U.S. 757 (1966); Holt v. United
States, 218 U.S. 245 (1910).
70. 451 U.S. at 463.
71. Idi at 464.
72. Id^ at
464-65.
73. Idi at 466-68.
74. 384 U.S. 436
(1966).
75. 451 U.S. at 466
at 467).
(quoting Miranda v. Arizona, 384 U.S.
76. Ick at 467.
77. Idj. a t
469.
78. IcK at 465.
79. Idk at 471-72.
80. Id^ at 470.
81. U.S. Const, amend. V.
82. 378 U.S. 1 (1964).
83. Idj. at 8.
84. Horowitz, The Privilege Against Self-incrimination
—
How Did it Originate?, 31 Temp. L.Q. 121, 125 (1958).
85. Baxter v. Palmigiano, 425 U.S. 308, 317-19
005:17
44
(1976).
86. In re: Gault, 387 U.S. 1, 50 (1967); Miranda v.
Arizona, 384 U.S. 436, 461 (1966).
87. Miranda v. Arizona, 384 U.S. 436, 459 (1966); Mally
v. Hogan, 378 U.S. 1, 8 (1964); Culombe v.
Connecticut, 367 U.S. 568, 571 (1961); McCarthy v.
Arndstein, 266 U.S. 34, 40 (1924); Boyd v. United
States, 116 U.S. 616, 633-34 (1886).
88. 142 U.S. 547
(1892).
89. Id_;_ at 552.
90. Idi
91. IcL at 562.
92. Idk
93. IcK
94. 384 U.S. 436
(1966).
95. Id_;_ at 444.
96. Idj_ at 445,
456-67.
97. IdL at 458.
98. Id_;_ at
444-45.
99. 387 U.S. 1
(1967).
100. Ick at 55.
101. Kent v. United States, 383 U.S. 541, 553
(1966).
102. McKeiver v. Pennsylvania, 403 U.S. 528, 545
103. 387 U.S. at 7-8.
104.
at 10.
105. IcK at
47-49.
106. Id_^ at 49-50.
107. Id.
005:17
44
(1971).
108. Gilbert v. California, 388 U.S. 263 (1967); United
States v. Wade, 388 U.S. 218 (1967); Schmerber v.
California, 384 U.S. 757 (1966).
109. 384 U.S. 436
(1966).
110. Id. at 444.
111. Argersinger v. Hamlin, 407 U.S. 25, 37 (1972); Gideon
v. Wainwright, 372 U.S. 335, 345 (1963); U.S. Const.
amend. VI.
- 112. Brewer v. Williams, 430 U.S. 387, 397-98 (1977);
Escobedo v. Illinois, 378 U.S. 478, 490-91 (1964);
Massiah v. United States, 377 U.S. 201, 206 (1964);
Spano v. New York, 360 U.S. 315, 319-20 (1959).
113. Powell v. Alabama, 287 U.S. 45, 69
(1932).
114. Coleman v. Alabama, 399 U.S. 1, 10 (1970); Gilbert v.
California, 388 U.S. 263, 267 (1967); United States
v. Wade, 388 U.S. 218, 227 (1967).
115. United States v. Cohen, 530 F.2d 43, 47-48 (5th Cir.
1973), cert, denied, 429 U.S. 855 (1976); United
States v. Albright, 388 F.2d 719, 723 (4th Cir.
1968).
116. 388 F.2d at 723.
117. Thornton v. Corcoran, 407 F.2d 695, 702 (D.C. Cir.
1969); United States v. Albright, 388 F.2d 719, 726
(4th Cir. 1968) .
118. 451 U.S. 454
(1981).
119. 407 U.S. 355
(1972).
120. 407 U.S. 245
(1972).
121. 432 S.W.2d 945
122. Id^ at
(Tex. Crim. App. 1968).
946-47.
123. Smith v. Estelle, 602 F.2d 694, 704 (5th Cir. 1979);
United States v. Alvarez, 519 F.2d 1036, 1040 (3d
Cir. 1975).
46
00516
124. 602 F.2d at 708-09.
125. Idj_ at 708.
126. 451 U.S. at 463-64.
127. United States v. Dionisio, 410 U.S. 1 (1973); Gilbert
v. California, 388 U.S. 263 (1967); United States v.
Wade, 388 U.S. 218 (1967); Schmerber v. California,
384 U.S. 757 (1966); Holt
245 (1910).
128. 451 U.S. at 463-64.
129. Id. at 467.
130. 542 S.W.2d 655 (Tex. Crim.
431 U.S. 933 (1977).
131. 451 U.S. at 462.
132 . 542 S.W.2d at 661.
133. Tex.. Code Crim. Proc. Ann.
134. 451 U.S. at 462.
135. Id.
136. 377 U.S. 201
(1964).
137. Id. at 204.06.
138 . 378 U.S. 478
(1964).
139. Id. at 492.
140. 451 U.S. at 471.
141. Id.
142. Id.
143. Tex. Code Crim. Proc. Ann.
144. Id. at § 37.071(d).
145. Id. at § 37.071(b)(2) •
44
005:17
146. See cases in note 2.
147. 542 S.W.2d 664 (Tex. Crim. App. 1976), cert. denied
431 U.S. 949 (1977).
148. Id. at 676.
149. 568 S.W.2d 313 (Tex. Crim. App. 1978) , cert. denied
440 U.S. 928 (1979).
150. 596 S.W.2d 875 (Tex. Crim. App. 1980), cert. denied
453 U.S. 913 (1981).
151. Dix, The Death Penalty, "Dangerousness", Psychiatric
Testimony, and Professional Ethics, 5 Am. J. Crim. L.
151, 153 (1977).
=
=
=
=~
152. Id. at 212.
153. Id. at 213.
154. Ennis & Litwick, Psychiatry and the Presumption of
Expertise;
Flipping Coins in the Courtroom, 62 Cal.
L. Rev., 693, 695 (1974).
=
155. Bonnie, Psychiatry and the Death Penalty:
Emerging
Problems in Virginia, 66 Va. L. Rev. 167, 177-78
=
(1980).
=
~
156. Dix, The Death Penalty at 213-14.
157. Bonnie, Emerging Problems at 177.
158. Id. at 177-78.
159. Ennis & Litwick, Flipping Coins at 733.
160. Gianelli, The Admissibility of Novel Scientific
Evidence:
Frye v. United States, a Half Century
Later, 80 Colum. L. Rev. 1197, 1236 (1980).
161. H. Toch, Legal and Criminal Psychology 105-09
(1966).
162. Id.
163. See cases note 2.
164. 596 S.W.2d 875 (Tex. Crim. App. 1980), cert, denied,
453 U.S. 913 (1981).
00518
165. Id. at 887.
166. Esquivel v. State, 595 S.W.2d 516, 528 (Tex. Crim.
App. 1980), cert, denied, 449 U.S. 986 (1980);
Simmons v. State, 594 S.W.2d 760 (Tex. Crim. App.
1980); Chambers v. State, 568 S.W.2d 313 (Tex. Crim.
App. 1978), cert, denied, 440 U.S. 928 (1979).
167. Barefoot v. State, 596 S.W.2d 875, 888 (Tex. Crim.
App. 1980), cert, denied, 453 U.S. 913 (1981).
168. IcL at 877.
169. 621 S.W.2d 624 (Tex. Crim. App. 1981).
170. IcL at 625.
171. Id.
172. Id.
173. Id.
174. Id.
175. Id.
176. Id.
177. Id.
178. Id.
179. Id.
180. Idi at 626.
181. 542 S.W.2d 655 (Tex. Crim. App. 1976), cert, denied,
431 U.S. 933 (1977).
182. 451 U.S. 454
(1981).
183. 621 S.W.2d at 626-27.
184. Id_;_
I85*
Ex parte English, 642 S.W.2d 482 (Tex. Crim. App.
1982); Ex parte Demouchette, 633 S.W.2d 879 (Tex.
Crim. App. 1982); Fields v. State, 627 S.W.2d 714
46
00519
(Tex. Crim. App. 1982), cert, denied, 103 S.Ct. 91
(1982); Clark v. State, 627 S.W.2d 693 (Tex. Crim.
App. 1981).
186. Barefoot v. Estelle, 697 F.2d 593 (5th Cir. 1983),
cert, granted, 103 S.Ct. 841 (1983); Gholson v.
Estelle, 675 F.2d 734 (5th Cir. 1982); White v.
Estelle, 554 F. Supp. 851 (S.D. Tex. 1982).
187. 451 U.S. at 467-69.
188. Id. at 468-69.
189. Id. at 471.
190. Id. at 469.
191. Id. at 468.
192. Id. at 465; United States v. Cohen, 530 F.2d 43
47-48 (5th Cir. 1973), cert, denied, 429 U.S. 855
(1976); Karstetter v. Cardwell, 526 F.2d 1144, 1145
(9th Cir. 1975); United States v. Bohle, 445 F.2d 54,
66-67 (7th Cir. 1971); United States v. Weiser, 428
F.2d 932, 936 (2nd Cir. 1969); cert, denied, 402 U.S.
949 (1971); United States v. Albright, 388 F.2d 719,
724-25 (4th Cir. 1968).
193. IcL at 472; Smith v. Estelle, 602 F.2d 705, 707
Cir. 1979).
(5th
194. IcL at 465; United States v. Williams, 456 F.2d
218 (5th Cir. 1972).
217,
195. Jurek v. TexaS, 428 U.S. 262, 273 (1976); Gholson v.
State, 542 S.W. 2d 395, 400-01 (Tex. Crim. App.
1976), cert, denied, 434 U.S. 882 (1977).
v:
196. Estelle -as Smith, 451 U.S. 454, 471-72 (1981);
Addington v. Texas, 441 U.S. 418, 429 (1979).
197. Barefoot v. Estelle, No. 82-6080
1983), slip opinion.
198. Id. at 1-2.
199. Id. at 2.
47
00520
(U.S. S.Ct. July 6,
200. Id. at 14.
201. Id. at 14-15.
202. Id. at 15-16.
203. Ewing, "Dr. Death*and The Case for an Ethical Ban on
Psychiatric and Psychological Predictions of
Dangerousness in Capital Sentencing Proceedings, 8
A m . J. L. and Med. 407, 418 (1983); Dix, Expert
PredTctTon Testimony in Capital Sentencing:
Evidentiary and Constitutional Considerations, 19 Am.
Crim. L. Rev. 1, 1 (1982).
~