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ARTICLE CONTENTS
[Pages 207-244]
TOP OF ARTICLE
Introduction
I. Unraveling the Eighth Amendment with Regard to the Death Penalty: The Supreme Court Cases
A. The Supreme Court Weighs In: Furman v. Georgia
B. Following up Furman
1. Gregg v. Georgia
2. Proffitt v. Florida
3. Woodson v. North Carolina
4. Jurek v. Texas
II. Barefoot v. Estelle and Daubert v. Merrill Dow Pharmaceuticals: When Is Expert Testimony Admissible in Capital Sentencing Hearings?
A. The Barefoot Standard for Admissibility of Psychiatric Experts’ Predictions of Future Dangerousness in Sentencing Phases of
Capital Trials: No Reliability Required
B. The Daubert Standard for Admissibility of Expert Testimony in Federal Civil Cases: Relevance and Reliability Are Required
C. Would Barefoot Be Overruled Today?
III. Future Dangerousness as an Aggravating Factor in Capital Cases
A. Pervasive Use of Psychiatric Predictions of Future Dangerousness and Jury Reliance on Such Testimony
1. Theories Explaining Prosecutorial Exploitation and Jury Accep-tance of Expert Predictions of Dangerousness
2. Empirical Evidence of the Jury Decision-Making Process
B. Predictions of Future Dangerousness are Unreliable
C. States That Do Not Consider Future Dangerousness
IV. Why Psychiatric Predictions of Future Dangerousness Violate the Eighth Amendment’s Ban on Cruel
and Unusual Punishment as Interpreted by
the Supreme Court
Conclusion
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