[*PG207]A DANGEROUS PREOCCUPATION WITH FUTURE DANGER: WHY EXPERT PREDICTIONS OF FUTURE DANGEROUSNESS IN CAPITAL CASES ARE UNCONSTITUTIONAL
Abstract: In Furman v. Georgia, the United States Supreme Court held that it was unconstitutional to administer the death penalty upon the sole, unguided discretion of juries. In response to Furman, some states amended their statutes to suggest or require that a jury assess the defendant’s future dangerousness before issuing a death sentence. Generally, this assessment is based on psychiatric expert testimony. This author explores the reliability and accuracy of psychiatric expert testimony of future dangerousness in light of the Court’s more recent Barefoot v. Estelle and Daubert v. Merrell Dow Pharmaceuticals decisions. The author argues that because the death penalty is so extreme and utterly final, heightened standards of reliability and accuracy should be used when determining the admissibility of evidence at the sentencing phases of capital trials.
In 1972, in Furman v. Georgia, the United States Supreme Court determined that it was unconstitutional to administer the death penalty upon the sole, unguided discretion of juries.1 The Court reasoned in part that this abdication to juries necessarily produced arbitrary and capricious results; therefore, it violated the Eighth Amendment’s prohibition of cruel and unusual punishment as applied to the states through the Fourteenth Amendment.2 Immediately following this de[*PG208]cision, death penalty states scrambled to amend their death penalty statutes to comply with Furman.3
Some states responded to the Furman decision by amending their statutes to suggest or require that a jury determine the defendant’s future dangerousness.4 Other states relied on the Model Penal Code scheme—a system which guides jury deliberations by asking jurors to weigh aggravating circumstances against mitigating circumstances in order to determine whether to impose a sentence other than death.5
Suggesting or even forcing the jury to find future dangerousness causes the prosecution to rely heavily on the most popular means of proving future dangerousness: psychiatric expert testimony.6 The arguments against this form of evidence are that it is inaccurate, unreliable, and inordinately prejudicial.7
One particularly prolific psychiatric expert who is repeatedly mentioned in Supreme Court cases and capital cases in Texas is Dr. James P. Grigson, commonly dubbed “Dr. Death.”8 As of 1994, Dr. Grigson had appeared in at least 150 capital trials on behalf of the state, and his predictions of future dangerousness had been used to help convict at least one-third of all Texas death row inmates.9
What is most remarkable about Dr. Grigson, however, is not his extensive record of making determinations of future dangerousness for the State of Texas, but the striking similarity of his diagnoses as well as his remarkable confidence in his ability to predict the future.10 [*PG209]Despite clear concern on the part of the psychiatric community regarding the inability of psychiatric professionals to accurately predict future dangerousness, Dr. Grigson has testified repeatedly that he was one hundred percent certain that the defendant would be dangerous in the future;11 that he could testify to this fact “within reasonable psychiatric certainty;”12 and, in some cases, that there was “a one thousand percent chance” that the defendant would be a future danger.13
Such certainty has impressed so many juries and helped to convict so many defendants that one judge sitting on the Texas Court of Criminal Appeals wrote:
[W]hen Dr. Grigson speaks to a lay jury . . . about a person who he characterizes as a “severe” sociopath . . . the defendant should stop what he is doing and commence writing out his last will and testament—because he will in all probability soon be ordered by the trial judge to suffer a premature death. . . . When Dr. Grigson is shown to have testified in a capital murder case in which the defendant challenges his conviction and sentence of death, the captions of those cases in which relief was granted read almost like the following: “THIS IS ANOTHER DR. GRIGSON CASE.” The number of these cases is so great that I will simply refer the reader to either Westlaw or Lexis and not cite them.14
[*PG210] Dr. Grigson has been proven wrong in several cases, the most notable being that of Randall Dale Adams whom Dr. Grigson described as an incurable and extreme sociopath with no regard for the life or property of others and who would continue to present a danger to society.15 Due mainly to Errol Morris’s documentary The Thin Blue Line, Adams was exonerated of all charges after twelve years of imprisonment and released from the Texas death row.16 Not once in his twelve years of imprisonment, nor in the years since his release, has Adams committed a known act of violence.17 Yet this evidence has not changed Dr. Grigson’s mind: Adams, Dr. Grigson asserts, will kill again.18
In 1995, Dr. Grigson was expelled from the American Psychiatric Association (APA) and from the Texas Society of Psychiatric Phsyicians (TSPP).19 The APA and the TSPP determined that Dr. Grigson’s testimony in several cases that he could be one hundred percent certain that the defendant would be dangerous in the future was a violation of ethics which could not be tolerated.20 Despite this condemnation, Dr. Grigson continues to be appointed by Texas courts to make psychiatric evaluations of defendants and continues to predict future dangerousness of defendants for the State of Texas.21 He has now entered into his third decade of psychiatric determinations of future dangerousness.22
The case of Dr. Grigson provides just one powerful example of how arbitrariness and caprice still exist in capital sentencing schemes which require the jury to determine whether the defendant will be dangerous in the future—and allow psychiatric experts to present testimony to this effect.23
[*PG211] Part I of this Note will re-examine the Supreme Court’s Eighth Amendment doctrine regarding the death penalty by revisiting each of the landmark cases to illustrate how the early cases called for an end to arbitrary administration of the death penalty as well as for accuracy and reliability in sentencing information.24 Part II will examine the case of Barefoot v. Estelle to reveal how the Court’s initial interpretation of the requirements of the Eight Amendment appears to have changed by allowing inherently unreliable evidence to be considered at death penalty sentencing hearings.25 This Part will then explore the Court’s more recent Daubert v. Merrell Dow Pharmaceuticals decision to determine what that opinion’s emphasis on reliability in expert testimony might mean in the context of death penalty adjudications.26 Part III will next examine the use of future dangerousness as an aggravating factor in capital cases.27 This Part will discuss the pervasive use of psychiatric predictions to prove future dangerousness as well as how and why juries rely on expert testimony of this kind.28 This Part will also examine the evidence that suggests that psychiatric predictions of future dangerousness are unreliable.29 In addition, Part III will provide two examples of states which do not consider future dangerousness as an aggravating factor in capital cases.30 Finally, Part IV will argue that the states which consider future dangerousness in sentencing phases of death penalty trials, and allow juries to hear psychiatric predictions of future dangerousness, continue to violate the Eighth Amendment by encouraging the use of unreliable and inaccurate testimony which misguides juries and leads to arbitrary and capricious results.31
Since its 1972 decision in Furman v. Georgia, the Supreme Court has attempted to clarify what will and will not be acceptable in a death penalty statute.32 Because death is different from any length of prison [*PG212]term, there is a particular need for reliability in the factors that determine whether the sentence of death is appropriate.33 The death penalty may not be arbitrarily or capriciously meted out.34 The sentencer must have guided discretion rather than unfettered discretion in the imposition of the death penalty.35
On the other hand, there can be no mandatory death sentences for certain crimes; the state may not take complete control of sentencing after the defendant has been found guilty of a death-penalty-eligible crime.36 There must be individualized sentencing, meaning that the sentencer must be able to consider any mitigating facts that the defendant may present.37
What satisfies the Eighth Amendment prohibition of cruel and unusual punishment remains unclear, however.38 The Supreme Court’s doctrine has been called “pathologically incomprehensible.”39 A more generous description of the doctrine refers to it as a “confusing array of ill-defined concepts, conflicting pronouncements, ipse dixits, and short-lived precedents.”40
In 1972, the Supreme Court granted certiorari in Furman v. Georgia to determine whether the imposition and enforcement the death penalty in the three cases before the Court constituted a violation of the Eighth and Fourteenth Amendments.41 In Furman, two of the defendants were convicted of rape and a third was convicted of murder; conviction for these crimes was punishable by death.42 All three were sentenced under statutes which left the decision of whether to impose death or a lighter sentence up to the jury without articulating any standards by which the jury should exercise this discretion.43
[*PG213] The Court held that allowing juries to use this unfettered discretion in determining whether to impose death or life in prison was cruel and unusual punishment violative of the Eighth and Fourteenth Amendments.44 For an understanding of the Court’s interpretation of the Eighth Amendment with regard to the death penalty, however, one must turn to the five concurring opinions filed in the case.45
In his concurrence, Justice Douglas explained that the Court did not hold the death penalty to be unconstitutional in and of itself unless the manner of execution is especially heinous.46 Rather, it seemed to interpret the Eighth Amendment as drawing its meaning from “the evolving standards of decency that mark the progress of a maturing society.”47 Here, there was a violation because the death penalty as administered in Furman, by juries with untrammeled discretion, led to a necessarily arbitrary and capricious result; because the juries were given no standards, the decisions were essentially dependent on the whims of twelve people.48
Justice Brennan reiterated the Supreme Court’s interpretation in his concurrence stating, “the very words ‘cruel and unusual punishments’ imply condemnation of the arbitrary infliction of severe punishments.”49 Justice Brennan also emphasized that death was a unique punishment in the United States because of its severity and finality; this difference has historically resulted in the Court treating the death penalty differently than other punishments administered throughout the country.50
Justice Stewart added that “[t]hese death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual . . . the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed.”51 Justice Stewart discerned no basis, aside from the possible impermissible consideration of race, for the selection of the particular petitioners to receive the death penalty when so many others con[*PG214]victed of rape and murder had not received the same penalty for the same crimes.52
As a result of Furman, all death penalty statutes in existence in 1972 were discarded or revised in order to comply with the Court’s abolition of standardless jury discretion regarding the imposition of the death penalty.53
Because the Supreme Court had not closed the door by declaring the death penalty unconstitutional in Furman, many death penalty states revised or created new death penalty statutes which gave juries some guidance in the imposition of the death penalty.54 These statutes were eventually challenged in several states, and, on July 2, 1976, the Supreme Court heard four cases which presented four states’ responses to the mandate of Furman.55
In 1976, in Gregg v. Georgia, the Supreme Court upheld Georgia’s revised death penalty statute which allowed the jury to impose death or life in prison after considering evidence of both statutory aggravating circumstances as well as mitigating circumstances.56 This statute called for these circumstances to be examined during a sentencing hearing after the defendant was found guilty of a capital crime at trial.57 A defendant may only be given the death penalty if the jury finds at least one of ten statutory aggravating factors beyond a reasonable doubt, and the defendant will be given substantial latitude in the presentation of mitigating evidence.58
[*PG215] In Gregg, the defendant was found guilty of armed robbery and murder.59 During the penalty phase of the trial, neither side offered any mitigating or aggravating evidence, but the judge instructed the jury that it would not be authorized to impose the death penalty unless it found one of the statutory aggravating circumstances beyond a reasonable doubt.60 The jury found two aggravating circumstances and returned a verdict of death.61
The Court reiterated its verdict in Furman stating “that where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.”62
The majority further emphasized that discretion in the area of sentencing should be exercised in an informed manner based on accurate information:63
If an experienced trial judge, who daily faces the difficult task of imposing sentences, has a vital need for accurate information about a defendant and the crime he committed in order to be able to impose a rational sentence in the typical criminal case, then accurate sentencing information is an indispensable prerequisite to a reasoned determination of [*PG216]whether a defendant shall live or die by a jury of people who may never before have made a sentencing decision.64
The Georgia scheme was accepted by the Court as sufficiently limiting and directing the discretion of the jury so as to minimize the risk of wholly arbitrary and capricious action.65 The new statute adequately prevented the jury from “wantonly and freakishly impos[ing] the death sentence.”66
On the same day, in Proffitt v. Florida, the Supreme Court upheld the Florida death penalty statute which, like the Georgia statute, required a sentencing hearing where the jury would hear relevant evidence relating to certain legislatively-outlined aggravating and mitigating circumstances.67 At the conclusion of the hearing, the jury would make a recommendation to the judge whether to impose death or life in prison.68 The judge would then consider the jury’s recommendation and render the final decision.69
[*PG217] Here, the defendant was found guilty of first degree murder.70 During the sentencing hearing, the jury heard evidence that the defendant had a prior conviction for breaking and entering.71 They were also told that the defendant had confessed to a doctor in jail that he had an uncontrollable desire to kill and wanted treatment so that he would not kill again.72 The doctor testified that he did think the defendant would be a danger to his fellow inmates, but that his condition could be treated with success.73 The jury then returned an advisory verdict which recommended a sentence of death.74 The judge then ordered a psychiatric evaluation of the defendant, which indicated that he was not mentally impaired at the time of the crime. The judge then imposed the death penalty, finding four aggravating circumstances and no mitigating circumstances.75 The Court found that because the statute gave the triers of fact “specific and detailed guidance to assist them in deciding whether to impose the death penalty,” Florida had established a “meaningful basis for distinguishing the few cases in which (the death penalty) [was] imposed from the many cases in which it [was] not.”76
In 1976, in Woodson v. North Carolina,77 the day’s third case, the Supreme Court examined North Carolina’s death penalty statute which attempted to comply with Furman.78 North Carolina’s statute mandated the death penalty for all persons convicted of first degree murder regardless of any mitigating circumstances.79
In this case, the defendants were among four men involved in an armed robbery which resulted in the death of a cashier and serious injury of a customer.80 Two of the men involved were allowed to plead guilty to lesser offenses, but the defendants were found guilty of first [*PG218]degree murder and immediately sentenced to death as required by the North Carolina statute.81
Because the Furman decision had determined that unfettered discretion on the part of the jury was unconstitutional, North Carolina attempted to remove all discretion.82 The Supreme Court disapproved of this solution, however, and declared the North Carolina scheme unconstitutional.83 This statute, the Court felt, did not “fulfill Furman’s basic requirement by replacing arbitrary and wanton jury discretion with objective standards to guide, regularize, and make rationally reviewable the process for imposing a sentence of death.”84 The Court held that the Eighth Amendment against cruel and unusual punishment required consideration of the individual offender and the circumstances of the offense:
While the prevailing practice of individualizing sentencing determinations generally reflects simply enlightened policy rather than a constitutional imperative, we believe that in capital cases the fundamental respect for humanity underlying the Eighth Amendment . . . requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.85
In coming to this conclusion, the Court echoed the Furman decision, finding that death was qualitatively different from any prison sentence no matter how long.86 Because of this difference, the Court emphasized a “corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.”87
Finally, on the same day in 1976, in Jurek v. Texas, the Supreme Court upheld an altogether different type of death penalty statute.88 [*PG219]Texas responded to Furman by creating a statute listing several categories of crimes considered death penalty eligible, or capital crimes.89 After finding a defendant guilty of a capital crime, the jury was given three special issue questions to answer at the sentencing phase.90 The second special issue question called for a prediction of the defendant’s future dangerousness by asking the jury to determine if the defendant was likely to commit future acts of violence that would constitute a continuing threat to society.91 The other two special issue questions were: whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result; and, if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.92
If the jury found that the state had proved each issue beyond a reasonable doubt and unanimously answered “yes” to all three special questions, the defendant automatically received the death penalty rather than life in prison.93
In Jurek, the defendant was convicted of murder committed in the course of attempted kidnapping and forcible rape.94 During the sentencing phase of the trial, the jury heard several witnesses testify to the defendant’s bad reputation in the community; evidence that the defendant had always been steadily employed and contributed to his family’s support was also presented at this time by the defendant’s father.95 The jury answered “yes” to all of the relevant special issue ques[*PG220]tions and the judge then sentenced the defendant to death in accordance with the statute.96
Although Texas did not specifically outline statutory mitigating and aggravating factors for the jury to consider at sentencing, the Court found that the second special issue question pertaining to the future dangerousness of the defendant allowed the defense to bring to the jury’s attention any relevant mitigating circumstances.97 Thus, the Court found that this solution suitably guided and focused the jury’s consideration of the particularized circumstances of the offense and the offender before imposing a sentence of death.98 Since the Texas system “assure[d] that sentence of death [would] not be ‘wantonly’ or ‘freakishly’ imposed, it [did] not violate the Constitution.”99
By the time of the 1983 decision of Barefoot v. Estelle,100 the Supreme Court had established several tenets of its Eighth Amendment doctrine.101 The Court had determined, for example, that juries shall be guided in their determinations of death sentences in order to provide more consistent results; despite the need for consistent results, however, juries must also make individualized determinations regarding each crime and each defendant.102 The Court had also concluded that death is different from any other punishment, so different standards of evidence apply; because of this difference, the information presented to the jury at sentencing must be particularly accurate so that the jury may make a reliable determination that death is the appropriate punishment.103
This last requirement of accuracy and reliability, as articulated in Gregg v. Georgia and Woodson v. North Carolina, was a source of disagreement among the members of the Court in Barefoot v. Estelle.104 [*PG221]The language in these opinions, as well as the ultimate holdings of the cases, has created some confusion regarding the Court’s Eighth Amendment jurisprudence.105 What did the Court mean in Gregg when it required “accurate sentencing information [as] an indispensable prerequisite to a reasoned determination” of whether or not to impose a death sentence?106 What did the Court mean in Woodson when it articulated the “need for reliability in the determination that death is the appropriate punishment?”107
The Court’s 1993 decision in Daubert v. Merrell Dow Pharmaceuticals may be a clue to what the Court meant by “reliability” in death penalty sentencing information—though that opinion surfaced in a wholly separate context: that of federal civil law.108
In 1983, in Barefoot v. Estelle, the Supreme Court held that the United States District Court for the Western District of Texas did not err in admitting psychiatric testimony to predict the future dangerousness of the defendant.109 The defendant in Barefoot was convicted of the capital murder of a police officer.110 During the sentencing phase of the trial, the State called two psychiatrists to testify to the probability that the defendant would commit further violent acts and present a future danger to society.111 The jury answered all of the relevant special issue questions in the affirmative, including the question of whether there was a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.112 Subsequently, the defendant was sentenced to death as required by the Texas statute.113
Dr. John Holbrook testified that “it was ‘within [his] capacity as a doctor of psychiatry to predict the future dangerousness of an individual [*PG222]within a reasonable medical certainty.”114 Dr. James Grigson testified that he had examined “between thirty and forty thousand individuals,” and that if given enough information, he could give an opinion “within reasonable psychiatric certainty as to [the] psychological or psychiatric makeup of an individual.”115 He further explained that “this skill was ‘particular to the field of psychiatr[y] and not the average layman.’”116
Neither doctor actually interviewed the defendant; rather, they based their analyses on a lengthy hypothetical question asking them to assume the following: that the defendant had committed four previous non-violent offenses; had a bad reputation for obeying the law in some communities; had escaped from a New Mexico jail (evidence of these things was also presented during the sentencing hearing); and had committed the capital murder of a police officer.117
On the basis of the hypothetical question, Dr. Holbrook diagnosed the defendant as a “‘criminal sociopath’” and stated that no treatment could change the defendant’s condition.118 In fact, Dr. Holbrook felt, though the condition would not change for the better, it “‘may become accelerated.’”119 Dr. Holbrook’s conclusion was that “‘within reasonable psychiatric certainty’ . . . the [defendant would] commit criminal acts of violence in the future that would constitute a continuing threat to society.”120
Similarly, Dr. Grigson diagnosed the defendant as a sociopath in the “‘most severe category’” for which there was no known cure.121 Dr. Grigson concluded that “whether [the defendant] was in society at large, or in a prison society there was a ‘one hundred percent and absolute’ chance that [the defendant] would commit future acts of criminal violence that would constitute a continuing threat to society.”122
In response to the defense’s claims that psychiatric predictions of future dangerousness were completely unreliable, condemned by the APA, and unconstitutional, the majority opinion, written by Justice White, stated: “[n]either petitioner nor the [APA] suggests that psychiatrists are always wrong with respect to future dangerousness, only [*PG223]most of the time.”123 The majority concluded that though psychiatric predictions of future dangerousness may be “generally so unreliable that it should be ignored,” this argument could be made on cross-examination.124 The Court felt that the jury could be trusted to sort out the reliable from the unreliable through the adversary process.125
The APA filed an amicus curiae brief in support of the defendant’s contention that psychiatrists individually and as a class are not competent to predict future dangerousness and that their predictions are so likely to encourage erroneous sentences that their use violates the Eighth Amendment.126 The brief stated that the APA’s best estimate was that psychiatrists’ predictions of future dangerousness in an individual are wrong “two out of three” times.127
Justice Blackmun’s dissent also noted that John Monahan, considered the “‘leading thinker on the issue’” even by the State’s expert, concluded that even the best clinical research indicates that psychiatric predictions of future dangerousness are accurate in no more than one out of every three tries.128 This dissent further noted that “[n]either the Court nor the State of Texas has cited a single reputable scientific source contradicting the unanimous conclusion of professionals in this field that psychiatric predictions of long-term future violence are wrong more often than they are right.”129
Justice Blackmun’s dissent also argued that it is impossible to justify allowing psychiatric predictions of dangerousness to be considered by a jury when the Constitution’s paramount concern in death penalty cases is reliability.130 In Texas, the statute requires that the jury find beyond a reasonable doubt that the defendant will commit future acts of criminal violence.131 Justice Blackmun argued that if psychiatrists with their aura of professional expertise are permitted to testify to this issue in terms of medical certainty then there is a severe danger that this testimony will lead to erroneously-imposed sentences.132 The dissent restated the importance of reliability, recognized in Woodson, in determining whether death is the appropriate punishment in a [*PG224]specific case: “The Court does not see fit to mention this principle today, yet it is as firmly established as any in our Eighth Amendment jurisprudence.”133 Though this evidence may be relevant, Justice Blackmun suggested that its unreliability detracts from its probative value.134 He argued that this expert testimony is unduly prejudicial to the defendant because unreliable scientific evidence may mislead a jury.135
Justice Blackmun also attacked the majority’s conclusion that the adversary process can adequately sort reliable from unreliable opinions about future dangerousness.136 Blackmun wondered how juries can be expected to separate valid from invalid opinions when psychiatrists themselves are unable to do so.137 Blackmun further suggested that there is no doubt that such testimony will have a great effect on juries because judges themselves rely heavily on expert opinions regarding dangerousness.138 He noted that the American Bar Association has warned expressly that sentencing juries are particularly incapable of dealing with information relating to future dangerousness and similar predictive judgments.139 “Ultimately,” Justice Blackmun wrote, “when the Court knows full well that psychiatrists’ predictions of dangerousness are specious, there can be no excuse for imposing on the defendant, on pain of his life, the heavy burden of convincing a jury of laymen of the fraud.”140
In 1993, the Supreme Court decided Daubert v. Merrell Dow Pharmaceuticals, a more recent opinion dealing with reliability in expert [*PG225]testimony.141 In Barefoot, the majority determined that the apparent unreliability of expert determinations of future dangerousness was not an issue affecting admissibility of the testimony, but rather an issue for the jury to consider.142 Justice Blackmun, in his dissent in Barefoot, assailed the majority for ignoring the need for reliability of evidence in capital cases which the Court had emphasized in Woodson v. North Carolina.143
In Daubert, a federal civil case, the plaintiffs presented several experts who testified that the drug Bendectin caused birth defects.144 The experts’ testimony was based on animal studies which indicated a link between the drug and malformations.145 The Court in Daubert abandoned the Frye test,146 also known as the “general acceptance”147 test for admissibility of expert evidence which required only that “the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.”148
The Court ruled that the Frye test had been superceded by the adoption of the Federal Rules of Evidence.149 Justice Blackmun, now the author of the majority opinion, interpreted Federal Rule of Evidence 702 to include a duty on the part of judges in federal trials to “ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.”150
The Court went on to list several non-exclusive factors to assist judges in determining the reliability of scientific evidence: whether the evidence can and has been tested; whether the theory or technique has been subjected to peer review; whether the technique or theory has a known or potential rate of error; whether there are standards controlling the operation or technique; and whether the theory or technique has achieved a degree of acceptance within the community of practitioners within the particular field.151 If a federal judge [*PG226]determines that the proffered expert testimony does not meet any of these factors, or that the testimony is otherwise irrelevant or unreliable, then the judge has the ability as gatekeeper to exclude it.152 No one factor is dispositive.153 The Court did “not presume to set out a definitive checklist or test.”154
Justice Blackmun went on to echo the language of his dissent in Barefoot, this time stating the principle as the position of the majority of the Court:
Rule 403 permits the exclusion of relevant evidence “if its probative value is substantially outweighed by the danger of unfair prejudice . . . or misleading the jury. . . .” Judge Weinstein has explained: “Expert evidence can be both powerful and quite misleading because of the difficulty in evaluating it. Because of this risk, the judge in weighing possible prejudice against probative force under Rule 403 . . . exercises more control over experts than over lay witnesses.”155
Daubert, it must be noted, does not apply in the context of sentencing hearings or state criminal cases because it is a case interpreting federal, rather than state, issues.156 The Court’s shift in thinking regarding the reliability of expert testimony seems significant, however.157 As one Fifth Circuit Judge notes:
It is well settled that, in the federal courts, the rules of evidence generally do not apply at a sentencing hearing, even one in which the death penalty is a possibility. . . . However, the cardinal concern of the rules of admissibility for expert testimony—reliability—is also the paramount concern in addressing the constitutionality of capital sentencing procedures. This cannot be mere coincidence.158
[*PG227] Daubert may suggest an appropriate level of reliability and accuracy required in the specific context of death penalty sentencing hearings to ensure that the defendant’s Eighth Amendment rights are not violated.159 To date, the Court has not yet addressed whether expert predictions of future danger are admissible in the post-Daubert era.160
At least one case, Nenno v. State, decided in 1998 by the Court of Criminal Appeals of Texas, suggests that Daubert has changed little at the state level.161 In this case, the defendant was convicted of raping and murdering a child.162 At sentencing, the state presented Kenneth Lanning, a Supervisory Special Agent in the Behavioral Science unit of the FBI, who specialized in studying the sexual victimization of children.163 Mr. Lanning did not interview the defendant, but based on a hypothetical question about the defendant and the crime, he stated that the defendant would be “difficult to rehabilitate” and that he “‘would be an extreme threat to society and especially children within his age preference.’”164
The defendant claimed that the admission of the testimony of Mr. Lanning was error because it failed the factors outlined in Daubert for the admissibility of expert testimony.165 The court disagreed with this claim, however, stating “[t]he general principles announced in Kelly (and Daubert) apply, but the specific factors outlined in those cases may or may not apply depending upon the context.”166
The court went on to conclude that the Daubert factors applied to the social sciences “with less rigor than to the hard sciences.”167 The [*PG228]more appropriate questions when referring to predictions of future danger are: “(1) whether the field of expertise is a legitimate one, (2) whether the subject matter of the expert’s testimony is within the scope of that field, and (3) whether the expert’s testimony properly relies upon and/or utilizes the principles involved in the field.”168
The court determined that Lanning’s testimony satisfied this less rigorous test for admissibility of social science evidence; the opinion, however, made no reference to the Supreme Court’s finding that the Eighth Amendment required heightened accuracy and reliability within the context of death penalty sentencing.169
The Supreme Court’s decision in Barefoot v. Estelle remains controversial considering the Court’s prior disdain for arbitrariness and caprice as well as its emphasis on accuracy and reliability.170 Some states, including Mississippi and California, do not include future dangerousness among their list of statutory aggravating factors and have determined that the admission of evidence with regard to future dangerousness at the sentencing phase of capital trials was reversible error.171
Twenty-one states, however, include a defendant’s possible future dangerousness among the aggravating circumstances to be considered at the sentencing phase; Texas and Oregon actually require the jury to predict future danger in their decision whether to grant life or death.172
In states allowing the determination of a defendant’s future dangerousness, the use of expert psychiatric testimony is the preferred method of proving the issue.173 In fact, requiring the prosecution to prove future danger may implicitly invite the use of expert tes[*PG229]timony because that is the most expedient and effective way to prove the issue.174
To further complicate the fact that psychiatric predictions of future dangerousness are unreliable, many of these predictions are based on long, complicated hypothetical questions rather than on actual interviews with defendants; even when there are actual psychiatric interviews, they are often only minutes long.175
In states that allow capital sentencing juries to consider the future dangerousness of the defendant, expert testimony is relied upon extensively.176 Some states, specifically, Texas and Oregon, go so far as to require the jury to be convinced beyond a reasonable doubt that the defendant poses a continuing threat to society before imposing a death sentence.177
It is no surprise then that prosecutors in such jurisdictions tend to rely primarily on the simplest and most expedient method of convincing juries of the defendant’s future dangerousness.178 Defendants who have been given a death sentence under this form of sentencing often appeal on the ground that such determinations are unreliable and inaccurate.179 Unfortunately for these defendants, courts, including the United States Supreme Court, have consistently upheld the use of psychiatric predictions of dangerousness apparently reasoning that such testimony is admissible even though it may have no scientific merit.180
Despite attempts to restrict psychiatric predictions of dangerousness, such testimony remains the preferred means of per[*PG230]suading a jury of a defendant’s continuing threat to society and the need for the death penalty.181
One reason for such extensive prosecutorial reliance on psychiatric predictions of future dangerousness may be that such expert testimony achieves a high success rate among jurors.182 There are several theories that explain why psychiatric predictions of future dangerousness hold great weight with juries.183
One reason for the success of expert testimony is that juries tend to lend greater weight to the testimony of a witness who offers a statement of professional opinion than they would to that of a lay witness.184 The American Psychiatric Association explains the phenomenon: “A psychiatrist comes into the courtroom wearing a mantle of expertise that inevitably enhances the credibility, and therefore the impact, of the testimony.”185
Judge Garza of the Fifth Circuit Court of Appeals also sheds light on juries’ great deference to expert opinion:
As some courts have indicated, the problem here (as with all expert testimony) is not the introduction of one man’s opinion on another’s future dangerousness, but the fact that the opinion is introduced by one whose title and education (not to mention designation as “expert”) gives him significant [*PG231]credibility in the eyes of the jury as one whose opinion comes with the imprimatur of scientific fact.186
The APA is particularly disturbed by the influence that an “expert” may hold over a jury considering that the Association does not believe that there are any special interpretive skills which psychiatrists bring to this issue.187 The APA asserts that dressing up the actuarial data with such “expert” opinion impermissibly distorts the fact-finding process due to the undue weight the jury is likely to place on the testimony.188
Another possible explanation for the success of psychiatric predictions of future dangerousness with juries is that jurors are more likely to rely on the psychiatrist who is one hundred percent certain of his opinion than the psychiatrist who simply states that such predictions are unreliable.189 Psychiatrists who are willing to state that they can predict the defendant will definitely be violent in the future present the inexperienced juror with an apparent “medical” conclusion that is highly prejudicial as well as difficult to rebut.190 The prejudice cannot easily be dealt with through cross-examination or rebuttal experts; most psychiatrists do not believe that they are capable of making long-term predictions of future dangerousness so they are unable to counterbalance the testimony of the prosecution experts because they appear less certain.191 Justice Blackmun described the likely result of this unbalanced battle of experts:
Given a choice between an expert who says that he can predict with certainty that the defendant, whether confined in prison or free in society, will kill again, and an expert who says merely that no such prediction can be made, members of the jury charged by law with making the prediction surely will be tempted to opt for the expert who claims he can help them in performing their duty, and who predicts dire consequences if the defendant is not put to death.192
[*PG232] Thus, the jury hears one expert testify that he is certain that the defendant will be dangerous and another expert disputing not that the defendant will be dangerous, but that the state’s expert may not be qualified or able to make such a determination.193
The success of expert testimony with juries is demonstrated by a 1992 National Law Journal/Lexis poll that interviewed close to 800 jurors in both civil and criminal cases about their opinions on the jury system.194 In the criminal context, 95% of the 53% of jurors who heard expert testimony found that testimony believable.195 Among the jurors in criminal cases who heard psychiatric expert testimony, 87% found it believable.196
It may be, however, that these numbers mainly speak for the experts on the prosecution side of criminal trials.197 In the mid-1990s, the National Science Foundation undertook a study of the decision-making process of capital juries nationwide.198 In the California segment of the project, 152 capital jurors who had participated in thirty-six cases were extensively interviewed; of these cases, eighteen resulted in a verdict of death, seventeen resulted in life without parole, and one jury was hung over the penalty.199
When questioned about the credibility of defense experts, typically psychiatrists or psychologists who explain to the jury why the defendant may have behaved as he did,200 the jurors’ impressions were “more than twice as likely to be negative rather than positive.”201 Jurors negatively cited twenty-seven different defense experts in eighteen cases.202 In contrast, jurors negatively cited only three experts among the prosecution’s witnesses in all thirty-six cases.203 “The pro[*PG233]fessional experts called by the prosecution, therefore, enjoyed a far better positive to negative ratio than did the defense experts.”204
One reason for this disparity is that the jurors interviewed were more likely to see the defense experts as hired guns willing to testify for whoever was paying them.205 “[T]his skepticism of experts as hired guns appear[ed] to work most harshly against the defendant as the party most clearly ‘paying’ for the expert testimony.”206
Despite the popularity of future dangerousness predictions, such evidence has been subject to assaults by mental health professionals as well as the American Bar Association.207 The American Psychiatric Association has said that the ability of psychiatrists or any other professionals to reliably predict future violence is unproven.208
For example, two attorneys, Bruce J. Ennis, former legal director of the American Civil Liberties Union, and Thomas R. Litwack, professor at John Jay College of Criminal Justice, have challenged psychiatric predictions of future dangerousness as inaccurate.209 These authors assert that flipping a coin would be a more accurate means of making a future dangerousness determination.210
In one study reviewed by Ennis and Litwack, 969 prisoner-pa-tients, who had been detained in maximum security hospitals because they had been diagnosed mentally ill and too dangerous for release or transfer to civil hospitals, were released in conformity with the Supreme Court’s decision in Baxstrom v. Herold.211 One year after the inmates were transferred to civil hospitals, “147 had been discharged to the community and the 702 who remained were found to present no [*PG234]special problems to hospital staff.”212 Only seven of the 969 were found to be so dangerous that they required recommitment to a prison hospital.213
In another study reviewed by Ennis and Litwack, a team of several mental health professionals including at least two psychiatrists conducted “unusually thorough clinical examinations” of individuals convicted of “serious assaultive crimes.”214 Out of forty-nine patients predicted to be dangerous by the mental health teams, but who were ultimately released after a court hearing, sixty-five percent were not found to have committed a violent crime within five years of release to the community.215 “In other words, two-thirds of those released despite predictions of dangerousness by the professional team did not in fact turn out to be dangerous.”216
More research on the ability of psychiatric professionals to predict dangerousness conducted in the 1980s and 1990s produces slightly more positive results.217 Researchers in the 1980s and 1990s have:
(1) replaced proxy measures of risk with clinicians’ specific predictions or assessments, (2) expanded their definitions of violence to include such legally relevant behaviors as verbal threats, (3) expanded their criterion measures beyond official arrest and hospital records to include violence detected through self-report and the report of knowledgeable third parties, and (4) begun to examine the role that situation-al/environmental factors may play in subsequent violence.218
Using this newer body of research and analysis, “more recent studies suggest that one out of every two people predicted to be violent would go on to engage in some kind of legally relevant, violent behavior.”219
Additionally, Dr. Jonathan R. Sorensen has presented recent data which indicates how often not only expert predictions of future [*PG235]dangerousness are incorrect, but also how these such predictions fail in general.220 Sorensen describes a study of actual violence among 6,390 incarcerated individuals in Texas serving an average of 4.55 years during January 1990 through March 1999.221 After considering the actual rates of several types of violent acts as well as the characteristics of incarceration, Sorensen concluded:
[T]he estimated likelihood of violence being committed by a newly received capital murderer over the next forty years . . . is .164. The approximate risk of a given capital murderer committing [the considered violent offenses] over the entire period of his incarceration is essentially double (1.95 times) the observed estimates. For example, the probability a capital defendant will kill again while incarcerated over the next forty years is 0.2%, or about two in one thousand.222
“Most jurors are unaware,” writes Sorensen, “that both correctional administrators and inmates agree that murderers are generally among the most docile and trustworthy inmates in the institution.”223 In fact, jurors in capital trials often believe the opposite is true.224 Interviews conducted with jurors serving in capital cases resulting in the death penalty estimated that there was an “85% likelihood that the defendant would commit a violent crime and a 50% likelihood that the defendant would commit a new homicide had they been given a sentence of life imprisonment.”225
Furthermore, mental health professionals do not trust themselves to make accurate predictions of future dangerousness.226 In one study, several hundred practicing physicians, clinical psychologists, and mental health lawyers were asked to estimate the percentage of accurate predictions made concerning future dangerousness.227 The mean fell between forty to forty-six percent, or less than half.228 Though behavioral scientists tend to be skeptical of research data and specific research findings, academics and professionals have quickly and al[*PG236]most unanimously accepted the conclusion that professionals are unreliable and inaccurate in predicting future violence.229
Numerous theories further explain why psychiatric predictions of future dangerousness are unreliable.230 One explanation for the inaccuracy of these predictions could be that dangerousness has been historically viewed as coming from within a subject’s personality, when the factors which may contribute to dangerousness are actually frequently found in interpersonal and situational contexts.231 Dangerousness may also depend on the use of drugs or alcohol.232 Because external factors need to be examined, a “person-focused” analysis may be inaccurate because humans do not live in complete isolation.233 Much psychological research emphasizes external and environmental influences on behavior, but the criminal justice system continues to primarily rely on person-focused predictions.234
Predictions may also often fail because mental health professionals may not have been trained to perform such assessments.235 “Simply because one is termed a ‘mental health professional’ does not mean that he or she understands the cognitive and behavioral processes that create dangerous behavior.”236 However, because a witness may have some psychiatric training, they are presented by the State as “expert witnesses” fit to offer predictions of the future.237
Several states including California and Mississippi do not list future dangerousness among their statutory aggravating factors guiding juries in death penalty cases.238 In 1981, the Supreme Court of California in People v. Murtishaw, determined that admitting a psychiatric expert’s prediction that the defendant would be dangerous in the future was reversible error because the testimony was highly unreliable, extraordinarily prejudicial, and of limited relevance because future [*PG237]dangerousness was not a specifically enumerated aggravating factor to be considered.239
In that case, the defendant was convicted of killing three college students and injuring a fourth.240 Despite the fact that California required no finding of future dangerousness and did not list this among the statutory enumerated aggravating factors, the State called Dr. Ronald Siegel, a psychopharmacologist, to testify that the defendant would continue to be violent in the future.241
In finding the admission of this evidence to be error, the court concluded that “evidence which is barely reliable enough to justify a civil judgment or a limited commitment is not reliable enough to utilize in determining whether a man should be executed.”242
The court further noted the effects of such testimony on a jury:
Such testimony implants in the mind of each juror the message that the death penalty, promptly carried into effect, is the only way to protect society from the defendant—the only way to forestall another instance in which [the] defendant responds to frustration with deadly violence. “A trier of fact offered the opportunity to base a decision on the affirmative assertion by an apparently well-qualified professional that a defendant’s execution is essential to saving the lives of others is likely to take that opportunity rather than face the difficult task of evaluating the offender’s ethical culpability.”243
Such evidence, the court concluded, was too prejudicial to set before the jury when future dangerousness was “only marginally relevant to the task at hand.”244
Mississippi also does not list future dangerousness among the aggravating factors to be considered at capital sentencing hearings.245 In 1992, in Balfour v. State, the Supreme Court of Mississippi held that because aggravating circumstances are to be limited to the eight statutory factors, the trial court erred in allowing the prosecutor to repeatedly emphasize the defendant’s propensity for future violence.246
States which continue to consider a defendant’s future dangerousness and allow the presentation of psychiatric predictions of future dangerousness at the sentencing phases of capital trials continue to violate the Eighth Amendment as interpreted by the Supreme Court in Furman v. Georgia, Gregg v. Georgia, and Woodson v. North Carolina.247
The Court’s Eighth Amendment jurisprudence is difficult to nav-igate—especially after the Barefoot v. Estelle decision.248 In Furman, the Court held that the death penalty as administered at the time—in an arbitrary and capricious manner through the unguided discretion of juries—was in violation of the Eighth Amendment’s ban on cruel and unusual punishment.249 In Woodson, the Court echoed the language of Justice Brennan’s concurrence in Furman, expressing that the death penalty was a punishment to be held apart from all others with a heightened need for reliability in the determination that death is the appropriate punishment in a capital case.250
The Court must have meant that juries require some legitimate, helpful guidance in their decision-making.251 It would not be in good faith to simply infer from the Court’s language that a state can satisfy the requirements of Furman by merely placing any aggravating or mitigating factors in their death penalty statutes which might guide a jury’s decision-making, no matter how confusing or unreliable that “guidance” might be.252
A better interpretation of the Furman decision would be that juries must be given meaningful guidance which would lead them to the most accurate decision possible because death, in its finality, is different from all other punishments.253 The Court’s follow-up cases support this point of view.254 The Court in Gregg emphasized that “accu[*PG239]rate sentencing information is an indispensable prerequisite to a reasoned determination of whether a defendant shall live or die.”255 In Woodson, the Court also explained that because death is so different from other punishments there is a “corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.”256
In Jurek v. Texas, however, the Court veered slightly from this emphasis on reliability and accuracy in jury determinations and accepted the Texas death penalty scheme which required a determination of the defendant’s future dangerousness beyond a reasonable doubt.257 In that case, the Court seemed to shift from its original determination in Furman that the death penalty not be arbitrarily or capriciously assigned to the more liberal conclusion that any death penalty statute would be upheld as long as death was not “‘wantonly’” or “‘freakishly’” imposed.258
The Court’s decision in Barefoot clearly veered from the path of Furman, Gregg, and Woodson.259 In Barefoot, the Court decided that patently unreliable evidence presented in a highly prejudicial manner by an expert was not unconstitutional because the adversarial process could sort the problems out and the jury was well able to separate reliable from unreliable evidence.260 The APA and Justice Blackmun disagreed, however, finding instead that juries are not capable of dealing appropriately with psychiatric predictions of future dangerousness.261
Jurek opened the door for psychiatric predictions of future dangerousness to be presented to juries at sentencing phases of capital trials and Barefoot cemented the admissibility of this patently unreliable evidence in death penalty determinations.262 Because these decisions appear to contradict the previously established requirements of reliability, accuracy, and the absence of arbitrariness and caprice in death penalty determinations, the Supreme Court’s Eight Amend[*PG240]ment jurisprudence has hung in a curious and confusing limbo ever since they came down.263
In 1993, the Supreme Court decided Daubert v. Merrell Dow Pharmaceuticals, Inc.264 This case articulated a new test for the admissibility of expert testimony in federal civil cases and voiced a concern in the Court for reliability in expert testimony.265 What this means in the criminal setting at the sentencing phase of a state capital trial remains unclear.266
Despite the fact that the Daubert discussion of reliability in expert testimony was in the context of a federal civil case, its standard of reliability should be a model for death penalty determinations.267 The Court has determined that because a death sentence is extremely severe and final, there is a heightened need for reliability in the evidence to be presented at capital sentencing hearings.268 If the Court now requires that expert testimony in civil cases survive a particular determination of reliability to assess admissibility, it only follows that in the far more serious context of death penalty determinations, psychiatric expert testimony should have to meet the Court’s Daubert standard.269 This seems especially necessary considering the Court’s requirement that evidence admitted in death penalty sentencing hearings be particularly reliable.270
It is clear, however, that expert predictions of future dangerousness fail each of the Daubert factors which test the reliability of such testimony.271 Expert testimony with regard to future dangerousness can and has been tested; it has been revealed as unreliable for years.272 Such predictions have been subject to peer review and the reviews are virtually all negative.273 The APA has condemned psychiatric predictions of future dangerousness as inaccurate and unreliable.274 Future dangerousness predictions have been estimated to have a failure rate of anywhere from two out of three to one out of [*PG241]two predictions.275 This rate of error suggests that there are not sufficient standards controlling the methods of prediction.276 Finally, among psychiatric professionals, there is not a degree of acceptance of the ability of psychiatric experts to predict future dangerousness.277 Although the failure of one or two Daubert factors is not dispositive, the Court’s reasoning suggests that the failure of every single factor would lead to a finding of unreliability and, therefore, inadmissibility.278
Despite the findings of Daubert, however, the Federal Rules of Evidence and state equivalents do not apply at the sentencing phases of capital trials.279 What Daubert does offer is an indication of what the Court means by reliability.280 If reliability for the Court means passing some of the Daubert factors, then expert predictions of future dangerousness are not reliable.281
Because of this unreliability, psychiatric predictions of future dan-gerousness have great potential to mislead juries and result in the arbitrary and capricious administration of the death penalty in violation of the Eighth Amendment.282 When psychiatric experts take the stand and declare with certainty that the defendant will be violent in the future, the jury is inclined to agree.283
The jury is generally presented with horrendous facts of which they have already found the defendant guilty; then they are told by someone labeled as a psychiatric “expert” that the defendant will definitely harm others in the future.284 The only testimony that the defense expert can offer is that the prosecution’s expert may not be able to accurately predict future dangerousness.285 Medical professionals who do not think they can predict the future of the defendant have difficulty rebutting the prosecution’s expert because they cannot declare to a one hundred percent certainty that the defendant will not be violent.286 Therefore, a jury confronted with this difficult decision [*PG242]is likely to feel more comfortable siding with the prosecution’s expert who appears more confident in his evaluation of the defendant.287
Empirical evidence from jurors shows that they find psychiatric experts to be very convincing—but generally only when they are presented by the prosecution.288 In other words, juries believe the experts who seem completely convinced that the defendant will wreak terrible violence and murder if he or she is again unleashed on society—or jurors are simply playing it safe because the defense experts cannot offer a guarantee that the defendant will never again be violent.289
The fact that psychiatric predictions of future dangerousness are very persuasive and prejudicial to a jury would not be relevant if it were not also true that these predictions are no more reliable than the flip of a coin.290 Numerous studies conducted over decades have confirmed that psychiatric professionals are not accurate in predicting future dangerousness.291
Dr. James Grigson presents an example of everything that is wrong with psychiatric predictions of future dangerousness.292 His predictions are sometimes based not on actual examinations of the defendants, but on long, drawn out hypothetical questions.293 Time after time, case after case, defendant after defendant, he uses the same language to present the same diagnosis: the defendant is the worst kind of sociopath—on a scale of one to ten, the defendant would be a ten plus; the defendant has no conscience; it does not matter to the defendant who he kills or what property he destroys; the defendant is one hundred percent certain to kill again; and there is no known cure or treatment for the defendant’s condition.294
The problem with these canned predictions, besides the fact that Dr. Grigson does not seem to individualize his diagnoses, is that he has been wrong repeatedly.295 His methods have been condemned by judges and fellow psychiatrists alike as unethical, and more importantly, inaccurate.296 He was expelled from the American Psychiatric [*PG243]Association for these methods and his bravado.297 Yet, just this one psychiatric expert has played a significant role in the convictions of an enormous portion of the Texas death row.298
That statutes requiring determinations of future dangerousness allow the introduction of psychiatric expert predictions, like those of Dr. Grigson, clearly exposes the fact that arbitrariness and caprice in the administration of the death penalty have not been expunged.299 The Court, therefore, should get back on the track of Furman, Gregg, and Woodson, and return to the notion that death is different and juries require reliable evidence in order not to produce arbitrary and capricious sentence determinations.
The Court was correct in Furman, Gregg, and Woodson. Death is different. One does not need the Court to reveal this principle, however; common sense and intuition lead to the same conclusion. Because the death penalty is so extreme—and utterly final, the Court also correctly determined that heightened standards of reliability and accuracy should be used when determining the admissibility of evidence at the sentencing phases of capital trials. The Court should never have veered from this interpretation of the Eighth Amendment as it did in Barefoot. In the Daubert decision, the Court emphasized the need for reliability in expert testimony, this time in the federal civil setting. With this decision, the Court seems to have found the path back toward its Furman, Gregg, and Woodson Eighth Amendment jurisprudence. The Court should follow this path toward the finding that psychiatric predictions of future dangerousness in capital cases are a violation of the Eighth Amendment because they are unreliable and inaccurate and lead to arbitrary and capricious results.