Barefoot v. Estelle
463 U.S. 880 (1983)
 

JUSTICE WHITE delivered the opinion of the Court.

We have two questions before us in this case: whether the District Court erred on the merits in rejecting the petition for habeas corpus filed by petitioner, and whether the Court of Appeals for the Fifth Circuit correctly denied a stay of execution of the death penalty pending appeal of the District Court's judgment.

I

On November 14, 1978, petitioner was convicted of the capital murder of a police officer in Bell County, Tex. A separate sentencing hearing before the same jury was then held to determine whether the death penalty should be imposed. Under Tex. Code Crim. Proc. Ann., Art. 37.071 (Vernon 1981), (19) two special questions were to be submitted to the jury: whether the conduct causing death was "committed deliberately and with reasonable expectation that the death of the deceased or another would result"; and whether "there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society." The State introduced into evidence petitioner's prior convictions and his reputation for lawlessness. The State also called two psychiatrists, John Holbrook and James Grigson, who, in response to hypothetical questions, testified that petitioner would probably commit further acts of violence and represent a continuing threat to society. The jury answered both of the questions put to them in the affirmative, a result which required the imposition of the death penalty.

On appeal to the Texas Court of Criminal Appeals, petitioner urged, among other submissions, that the use of psychiatrists at the punishment hearing to make predictions about petitioner's future conduct was unconstitutional because psychiatrists, individually and as a class, are not competent to predict future dangerousness. Hence, their predictions are so likely to produce erroneous sentences that their use violated the Eighth and Fourteenth Amendments. It was also urged, in any event, that permitting answers to hypothetical questions by psychiatrists who had not personally examined petitioner was constitutional error. The court rejected all of these contentions and affirmed the conviction and sentence on March 12, 1980, Barefoot v. State, 596 S. W. 2d 875; rehearing was denied on April 30, 1980.

[Discussion of other issues omitted]....

III

Petitioner's merits submission is that his death sentence must be set aside because the Constitution of the United States barred the testimony of the two psychiatrists who testified against him at the punishment hearing. There are several aspects to this claim. First, it is urged that psychiatrists, individually and as a group, are incompetent to predict with an acceptable degree of reliability that a particular criminal will commit other crimes in the future and so represent a danger to the community. Second, it is said that in any event, psychiatrists should not be permitted to testify about future dangerousness in response to hypothetical questions and without having examined the defendant personally. Third, it is argued that in the particular circumstances of this case, the testimony of the psychiatrists was so unreliable that the sentence should be set aside. As indicated below, we reject each of these arguments.

A

The suggestion that no psychiatrist's testimony may be presented with respect to a defendant's future dangerousness is somewhat like asking us to disinvent the wheel. In the first place, it is contrary to our cases. If the likelihood of a defendant's committing further crimes is a constitutionally acceptable criterion for imposing the death penalty, which it is, Jurek v. Texas, 428 U.S. 262 (1976), and if it is not impossible for even a lay person sensibly to arrive at that conclusion, it makes little sense, if any, to submit that psychiatrists, out of the entire universe of persons who might have an opinion on the issue, would know so little about the subject that they should not be permitted to testify. In Jurek, seven Justices rejected the claim that it was impossible to predict future behavior and that dangerousness was therefore an invalid consideration in imposing the death penalty. JUSTICES Stewart, POWELL, and STEVENS responded directly to the argument, id., at 274-276:

"It is, of course, not easy to predict future behavior. The fact that such a determination is difficult, however, does not mean that it cannot be made. Indeed, prediction of future criminal conduct is an essential element in many of the decisions rendered throughout our criminal justice system. The decision whether to admit a defendant to bail, for instance, must often turn on a judge's prediction of the defendant's future conduct. Any sentencing authority must predict a convicted person's probable future conduct when it engages in the process of determining what punishment to impose. For those sentenced to prison, these same predictions must be made by parole authorities. The task that a Texas jury must perform in answering the statutory question in issue is thus basically no different from the task performed countless times each day throughout the American system of criminal justice. What is essential is that the jury have before it all possible relevant information about the individual defendant whose fate it must determine. Texas law clearly assures that all such evidence will be adduced."

Although there was only lay testimony with respect to dangerousness in Jurek, there was no suggestion by the Court that the testimony of doctors would be inadmissable. To the contrary, the joint opinion announcing the judgment said that the jury should be presented with all of the relevant information. Furthermore, in Estelle v. Smith, 451 U.S. 454, 473 (1981), in the face of a submission very similar to that presented in this case with respect to psychiatric testimony, we approvingly repeated the above quotation from Jurek and went on to say that we were in "no sense disapproving the use of psychiatric testimony bearing on future dangerousness." See also California v. Ramos, post, at 1005-1006, 1009-1010, n. 23; Gregg v. Georgia, 428 U.S. 153, 203-204 (1976) (joint opinion) (desirable to allow open and far-ranging argument that places as much information as possible before the jury).

Acceptance of petitioner's position that expert testimony about future dangerousness is far too unreliable to be admissible would immediately call into question those other contexts in which predictions of future behavior are constantly made. For example, in O'Connor v. Donaldson, 422 U.S. 563, 576 (1975), we held that a nondangerous mental hospital patient could not be held in confinement against his will. Later, speaking about the requirements for civil commitments, we said:

"There may be factual issues in a commitment proceeding, but the factual aspects represent only the beginning of the inquiry. Whether the individual is mentally ill and dangerous to either himself or others and is in need of confined therapy turns on the meaning of the facts which must be interpreted by expert psychiatrists and psychologists." Addington v. Texas, 441 U.S. 418, 429 (1979).

In the second place, the rules of evidence generally extant at the federal and state levels anticipate that relevant, unprivileged evidence should be admitted and its weight left to the factfinder, who would have the benefit of cross-examination and contrary evidence by the opposing party. Psychiatric testimony predicting dangerousness may be countered not only as erroneous in a particular case but also as generally so unreliable that it should be ignored. If the jury may make up its mind about future dangerousness unaided by psychiatric testimony, jurors should not be barred from hearing the views of the State's psychiatrists along with opposing views of the defendant's doctors. (20)

Third, petitioner's view mirrors the position expressed in the amicus brief of the American Psychiatric Association (APA). As indicated above, however, the same view was presented and rejected in Estelle v. Smith. We are no more convinced now that the view of the APA should be converted into a constitutional rule barring an entire category of expert testimony. We are not persuaded that such testimony is almost entirely unreliable and that the factfinder and the adversary system will not be competent to uncover, recognize, and take due account of its shortcomings.

The amicus does not suggest that there are not other views held by members of the Association or of the profession generally. (21) Indeed, as this case and others indicate, there are those doctors who are quite willing to testify at the sentencing hearing, who think, and will say, that they know what they are talking about, and who expressly disagree with the Association's point of view. Furthermore, their qualifications as experts are regularly accepted by the courts. If they are so obviously wrong and should be discredited, there should be no insuperable problem in doing so by calling members of the Association who are of that view and who confidently assert that opinion in their amicus brief. Neither petitioner nor the Association suggests that psychiatrists are always wrong with respect to future dangerousness, only most of the time. Yet the submission is that this category of testimony should be excised entirely from all trials. We are unconvinced, however, at least as of now, that the adversary process cannot be trusted to sort out the reliable from the unreliable evidence and opinion about future dangerousness, particularly when the convicted felon has the opportunity to present his own side of the case.

We are unaware of and have not been cited to any case, federal or state, that has adopted the categorical views of the Association. (22) Certainly it was presented and rejected at every stage of the present proceeding. After listening to the two schools of thought testify not only generally but also about the petitioner and his criminal record, the District Court found:

"The majority of psychiatric experts agree that where there is a pattern of repetitive assaultive and violent conduct, the accuracy of psychiatric predictions of future dangerousness dramatically rises. The accuracy of this conclusion is reaffirmed by the expert medical testimony in this case at the evidentiary hearing. ...  It would appear that Petitioner's complaint is not the diagnosis and prediction made by Drs. Holbrook and Grigson at the punishment phase of his trial, but that Dr. Grigson expressed extreme certainty in his diagnosis and prediction. ...  In any event, the differences among the experts were quantitative, not qualitative. The differences in opinion go to the weight [of the evidence] and not the admissibility of such testimony. ...  Such disputes are within the province of the jury to resolve. Indeed, it is a fundamental premise of our entire system of criminal jurisprudence that the purpose of the jury is to sort out the true testimony from the false, the important matters from the unimportant matters, and, when called upon to do so, to give greater credence to one party's expert witnesses than another's. Such matters occur routinely in the American judicial system, both civil and criminal." App. 13-14 (footnote omitted).

Petitioner also relies on White v. Estelle, 554 F.Supp. 851 (SD Tex. 1982). The court in that case did no more than express "serious reservations" about the use of psychiatric predictions based on hypotheticals in instances where the doctor has had no previous contact with the defendant. Id., at 858. The actual holding of the case, which is totally irrelevant to the issues here, was that the testimony of a doctor who had interviewed the defendant should have been excluded because, prior to the interview, the defendant had not been given Miranda warnings or an opportunity to consult with his attorney, as required by Estelle v. Smith, 451 U.S. 454 (1981).

We agree with the District Court, as well as with the Court of Appeals' judges who dealt with the merits of the issue and agreed with the District Court in this respect.

B

Whatever the decision may be about the use of psychiatric testimony, in general, on the issue of future dangerousness, petitioner urges that such testimony must be based on personal examination of the defendant and may not be given in response to hypothetical questions. We disagree. Expert testimony, whether in the form of an opinion based on hypothetical questions or otherwise, is commonly admitted as evidence where it might help the factfinder do its assigned job. As the Court said long ago in Spring Co. v. Edgar, 99 U.S. 645, 657 (1879):

"Men who have made questions of skill or science the object of their particular study, says Phillips, are competent to give their opinions in evidence. Such opinions ought, in general, to be deduced from facts that are not disputed, or from facts given in evidence; but the author proceeds to say that they need not be founded upon their own personal knowledge of such facts, but may be founded upon the statement of facts proved in the case. Medical men, for example, may give their opinions not only as to the state of a patient they may have visited, or as to the cause of the death of a person whose body they have examined, or as to the nature of the instruments which caused the wounds they have examined, but also in cases where they have not themselves seen the patient, and have only heard the symptoms and particulars of his state detailed by other witnesses at the trial. Judicial tribunals have in many instances held that medical works are not admissible, but they everywhere hold that men skilled in science, art, or particular trades may give their opinions as witnesses in matters pertaining to their professional calling."

See also Dexter v. Hall, 15 Wall. 9, 26 -- 27 (1873); Forsyth v. Doolittle, 120 U.S. 73, 78 (1887); Bram v. United States, 168 U.S. 532, 568-569 (1897).

Today, in the federal system, Federal Rules of Evidence 702-706 provide for the testimony of experts. The Advisory Committee Notes touch on the particular objections to hypothetical questions, but none of these caveats lends any support to petitioner's constitutional arguments. Furthermore, the Texas Court of Criminal Appeals could find no fault with the mode of examining the two psychiatrists under Texas law:

"The trial court did not err by permitting the doctors to testify on the basis of the hypothetical question. The use of hypothetical questions in the examination of expert witnesses is a well-established practice. 2 C. McCormick and R. Ray, Texas Evidence, § 1402 (2d ed. 1956). That the experts had not examined appellant went to the weight of their testimony, not to its admissability." 596 S. W. 2d, at 887.

Like the Court of Criminal Appeals, the District Court, and the Court of Appeals, we reject petitioner's constitutional arguments against the use of hypothetical questions. Although cases such as this involve the death penalty, we perceive no constitutional barrier to applying the ordinary rules of evidence governing the use of expert testimony.

C

As we understand petitioner, he contends that even if the use of hypothetical questions in predicting future dangerousness is acceptable as a general rule, the use made of them in his case violated his right to due process of law. For example, petitioner insists that the doctors should not have been permitted to give an opinion on the ultimate issue before the jury, particularly when the hypothetical questions were phrased in terms of petitioner's own conduct; (23) that the hypothetical questions referred to controverted facts; (24)n10 and that the answers to the questions were so positive as to be assertions of fact and not opinion. (25)

These claims of misuse of the hypothetical questions, as well as others, were rejected by the Texas courts, and neither the District Court nor the Court of Appeals found any constitutional infirmity in the application of the Texas Rules of Evidence in this particular case. We agree.

In sum, we affirm the judgment of the District Court. There is no doubt that the psychiatric testimony increased the likelihood that petitioner would be sentenced to death, but this fact does not make that evidence inadmissible, any more than it would with respect to other relevant evidence against any defendant in a criminal case. At bottom, to agree with petitioner's basic position would seriously undermine and in effect overrule Jurek v. Texas, 428 U.S. 262 (1976). Petitioner conceded as much at oral argument. Tr. of Oral Arg. 23-25. We are not inclined, however, to overturn the decision in that case.

The judgment of the District Court is

Affirmed.

[Dissent by Justice Marshall omitted]

JUSTICE BLACKMUN, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join as to Parts I-IV, dissenting.

.... Last, the prosecution called Doctors Holbrook and Grigson, whose testimony extended over more than half the hearing. Neither had examined Barefoot or requested the opportunity to examine him. In the presence of the jury, and over defense counsel's objection, each was qualified as an expert psychiatrist witness. Doctor Holbrook detailed at length his training and experience as a psychiatrist, which included a position as chief of psychiatric services at the Texas Department of Corrections. He explained that he had previously performed many "criminal evaluations," .... and that he subsequently took the post at the Department of Corrections to observe the subjects of these evaluations so that he could "be certain those opinions that [he] had were accurate at the time of trial and pretrial." .... He then informed the jury that it was "within [his] capacity as a doctor of psychiatry to predict the future dangerousness of an individual within a reasonable medical certainty," ....(emphasis supplied), and that he could give "an expert medical opinion that would be within reasonable psychiatric certainty as to whether or not that individual would be dangerous to the degree that there would be a probability that that person would commit criminal acts of violence in the future that would constitute a continuing threat to society," .... (emphasis supplied).

Doctor Grigson also detailed his training and medical experience, which, he said, included examination of "between thirty and forty thousand individuals," including 8,000 [**3408] charged with felonies, and at least 300 charged with murder. .... He testified that with enough information he would be able to "give a medical opinion within reasonable psychiatric certainty as to the psychological or psychiatric makeup of an individual," .... (emphasis supplied), and that this skill was "particular to the field of psychiatry and not to the average layman." ....

Each psychiatrist then was given an extended hypothetical question asking him to assume as true about Barefoot the four prior convictions for nonviolent offenses, the bad reputation for being law-abiding in various communities, the New Mexico escape, the events surrounding the murder for which he was on trial and, in Doctor Grigson's case, the New Mexico arrest. On the basis of the hypothetical question, Doctor Holbrook diagnosed Barefoot "within a reasonable [psychiatric] certainty," as a "criminal sociopath." .... He testified that he knew of no treatment that could change this condition, and that the condition would not change for the better but "may become accelerated" in the next few years. .... Finally, Doctor Holbrook testified that, "within reasonable psychiatric certainty, " there was "a probability that the Thomas A. Barefoot in that hypothetical will commit criminal acts of violence in the future that would constitute a continuing threat to society," and that his opinion would not change if the "society" at issue was that within Texas prisons rather than society outside prison. ....

Doctor Grigson then testified that, on the basis of the hypothetical question, he could diagnose Barefoot "within reasonable psychiatric certainty" as an individual with "a fairly classical, typical, sociopathic personality disorder." .... He placed Barefoot in the "most severe category" of sociopaths (on a scale of one to ten, Barefoot was "above ten"), and stated that there was no known cure for the condition. .... Finally, Doctor Grigson testified that whether [***69] Barefoot was in society at large or in a prison society there was a "one hundred percent and absolute" chance that Barefoot would commit future acts of criminal violence that would constitute a continuing threat to society. .... (emphasis supplied).

On cross-examination, defense counsel questioned the psychiatrists about studies demonstrating that psychiatrists' predictions of future dangerousness are inherently unreliable. Doctor Holbrook indicated his familiarity with many of these studies but stated that he disagreed with their conclusions. Doctor Grigson stated that he was not familiar with most of these studies, and that their conclusions were accepted by only a "small minority group" of psychiatrists -- "[it's] not the American Psychiatric Association that believes that." .....

After an hour of deliberation, the jury answered "yes" to the two statutory questions, and Thomas Barefoot was sentenced to death.

II

A

The American Psychiatric Association (APA), participating in this case as amicus curiae, informs us that "[the] unreliability of psychiatric predictions of long-term future dangerousness is by now an established fact within the profession." ..... The APA's best estimate is that two out of three predictions of long-term future violence made by psychiatrists are wrong. ... The Court does not dispute this proposition,....and indeed it could not do so; the evidence is overwhelming. For example, the APA's Draft Report of the Task Force on the Role of Psychiatry in the Sentencing Process (1983) (Draft Report) states that "[considerable] evidence has been accumulated by now to demonstrate that long-term prediction by psychiatrists of future violence is an extremely inaccurate process." ..... John Monahan, recognized as " the leading thinker on this issue" even by the State's expert witness at Barefoot's federal habeas corpus hearing, ...., concludes that "the 'best' clinical research currently in existence indicates that psychiatrists and psychologists are accurate in no more than one out of three predictions of violent behavior," even among populations of individuals who are mentally ill and have committed violence in the past. ..... Neither 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.

The APA also concludes, .... as do researchers that have studied the issue, that psychiatrists simply have no expertise in predicting long-term future dangerousness. A layman with access to relevant statistics can do at least as well and possibly better; psychiatric training is not relevant to the factors that validly can be employed to make such predictions, and psychiatrists consistently err on the side of overpredicting violence. n4 Thus, while Doctors Grigson and Holbrook were presented by the State and by self-proclamation as experts at predicting future dangerousness, the scientific literature makes crystal clear that they had no expertise whatever. Despite their claims that they were able to predict Barefoot's future behavior "within reasonable psychiatric certainty," or to a "one hundred percent and absolute" certainty, there was in fact no more than a one in three chance that they were correct.....A death sentence cannot rest on highly dubious predictions secretly based on a factual foundation of hearsay and pure conjecture. ....

B

It is impossible to square admission of this purportedly scientific but actually baseless testimony with the Constitution's paramount concern for reliability in capital sentencing. Death is a permissible punishment in Texas only if the jury finds beyond a reasonable doubt that there is a probability the defendant will commit future acts of criminal violence. The admission of unreliable psychiatric predictions of future violence, offered with unabashed claims of "reasonable medical certainty" or "absolute" professional reliability, creates an intolerable danger that death sentences will be imposed erroneously. ...

.....The Court all but admits the obviously prejudicial impact of the testimony of Doctors Grigson and Holbrook; granting that their absolute claims were more likely to be wrong than right, ..., the Court states that "[there] is no doubt that the psychiatric testimony increased the likelihood that petitioner would be sentenced to death," ante, at 905.

Indeed, unreliable scientific evidence is widely acknowledged to be prejudicial. The reasons for this are manifest. "The major danger of scientific evidence is its potential to mislead the jury; an aura of scientific infallibility may shroud the evidence and thus lead the jury to accept it without critical scrutiny." Giannelli, The Admissibility of Novel Scientific Evidence: Frye v. United States, a Half-Century Later, 80 Colum. L. Rev. 1197, 1237 (1980) (Giannelli, Scientific Evidence). (26)

Where the public holds an exaggerated opinion of the accuracy of scientific testimony, the prejudice is likely to be indelible. .... There is little question that psychiatrists are perceived by the public as having a special expertise to predict dangerousness, a perception based on psychiatrists' study of mental disease. .... It is this perception that the State in Barefoot's case sought to exploit. Yet mental disease is not correlated with violence, .... and the stark fact is that no such expertise exists. Moreover, psychiatrists, it is said, sometimes attempt to perpetuate this illusion of expertise,.... and Doctors Grigson and Holbrook -- who purported to be able to predict future dangerousness "within reasonable psychiatric certainty," or absolutely -- present extremely disturbing examples of this tendency. The problem is not uncommon. ....

III

A

Despite its recognition that the testimony at issue was probably wrong and certainly prejudicial, the Court holds this testimony admissible because the Court is "unconvinced ... that the adversary process cannot be trusted to sort out the reliable from the unreliable evidence and opinion about future dangerousness." ... One can only wonder how juries are to separate valid from invalid expert opinions when the "experts" themselves are so obviously unable to do so. Indeed, the evidence suggests that juries are not effective at assessing the validity of scientific evidence. ....

....

As if to suggest that petitioner's position that unreliable expert testimony should be excluded is unheard of in the law, the Court relies on the proposition that the rules of evidence generally "anticipate that relevant, unprivileged evidence should be admitted and its weight left to the factfinder, who would have the benefit of cross-examination and contrary evidence by the opposing party." ..... But the Court simply ignores hornbook law that, despite the availability of cross-examination and rebuttal witnesses, "opinion evidence is not admissible if the court believes that the state of the pertinent art or scientific knowledge does not permit a reasonable opinion to be asserted." E. Cleary, McCormick on Evidence § 13, p. 31 (2d ed. 1972). Because it is feared that the jury will overestimate its probative value, polygraph evidence, for example, almost invariably is excluded from trials despite the fact that, at a conservative estimate, an experienced polygraph examiner can detect truth or deception correctly about 80 to 90 percent of the time. (27)... In no area is purportedly "expert" testimony admitted for the jury's consideration where it cannot be demonstrated that it is correct more often than not. "It is inconceivable that a judgment could be considered an 'expert' judgment when it is less accurate than the flip of a coin." .... The risk that a jury will be incapable of separating "scientific" myth from reality is deemed unacceptably high. B

The Constitution's mandate of reliability, with the stakes at life or death, precludes reliance on cross-examination and the opportunity to present rebuttal witnesses as an antidote for this distortion of the truth-finding process. Cross-examination is unlikely to reveal the fatuousness of psychiatric predictions because such predictions often rest, as was the case here, on psychiatric categories and intuitive clinical judgments not susceptible to cross-examination and rebuttal. .... Psychiatric categories have little or no demonstrated relationship to violence, and their use often obscures the unimpressive statistical or intuitive bases for prediction. .... The APA particularly condemns the use of the diagnosis employed by Doctors Grigson and Holbrook in this case, that of sociopathy:

"In this area confusion reigns. The psychiatrist who is not careful can mislead the judge or jury into believing that a person has a major mental disease simply on the basis of a description of prior criminal behavior. Or a psychiatrist can mislead the court into believing that an individual is devoid of conscience on the basis of a description of criminal acts alone. ...  The profession of psychiatry has a responsibility to avoid inflicting this confusion upon the courts and to spare the defendant the harm that may result. ...  Given our uncertainty about the implications of the finding, the diagnosis of sociopathy ... should not be used to justify or to support predictions of future conduct. There is no certainty in this area." Draft Report 30.

....

Nor is the presentation of psychiatric witnesses on behalf of the defense likely to remove the prejudicial taint of misleading testimony by prosecution psychiatrists. (28) No reputable expert would be able to predict with confidence that the defendant will not be violent; at best, the witness will be able to give his opinion that all predictions of dangerousness are unreliable. Consequently, the jury will not be presented with the traditional battle of experts with opposing views on the ultimate question. 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. (29)

n13

....

IV

....In Smith, the psychiatric testimony at issue was given by the same Doctor Grigson who confronts us in this case, and his conclusions were disturbingly similar to those he rendered here...... The APA, appearing as amicus curiae, argued that all psychiatric predictions of future dangerousness should be excluded from capital sentencing proceedings. The Court did not reach this issue, because it found Smith's death sentence invalid on narrower grounds: Doctor Grigson's testimony had violated Smith's Fifth and Sixth Amendment rights. Contrary to the Court's inexplicable assertion in this case, Smith certainly did not reject the APA's position. Rather, the Court made clear that "the holding in Jurek was guided by recognition that the inquiry [into dangerousness] mandated by Texas law does not require resort to medical experts." ..... If Jurek and Smith held that psychiatric predictions of future dangerousness are admissible in a capital sentencing proceeding as the Court claims, this guiding recognition would have been irrelevant.

....

Our constitutional duty is to ensure that the State proves future dangerousness, if at all, in a reliable manner, one that ensures that "any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion." ... Texas' choice of substantive factors does not justify loading the factfinding process against the defendant through the presentation of what is, at bottom, false testimony.

V

I would vacate petitioner's death sentence, and remand for further proceedings consistent with these views.

The late 1970's and 1980's saw an increase in personal injury litigation based on exposure to toxic substances in consumer products, at the workplace, and in the environment. Often these cases were brought as class actions against the manufacturers and distributors of the substances or products claimed to be responsible for the plaintiff's injuries or illnesses. Manufacturers of asbestos-containing products, pharmaceutical firms manufacturing and selling DES, Bendectin, and silicon breast implants were also sued. Some claimed that there had been a "litigation explosion" and pled for "tort reform" to curb the litigation initiatives of plaintiffs and their attorneys or cap the ability of juries to respond to those initiatives.

Many claims for injury or illness from toxic substances faced the challenge of proof of causation. That is, did the drug, toxic substance, or other product in question, whether or not negligently manufactured, distributed or handled, actually cause the plaintiff's condition? This question almost always required an expert to answer.

 


19. Texas Code Crim. Proc. Ann., Art. 37.071 (Vernon 1981), provides:

"(a) Upon a finding that the defendant is guilty of a capital offense, the court shall conduct a separate sentencing proceeding to determine whether the defendant shall be sentenced to death or life imprisonment. The proceeding shall be conducted in the trial court before the trial jury as soon as practicable. In the proceeding, evidence may be presented as to any matter that the court deems relevant to sentence. This subsection shall not be construed to authorize the introduction of any evidence secured in violation of the Constitution of the United States or of the State of Texas. The state and the defendant or his counsel shall be permitted to present argument for or against sentence of death.

"(b) On conclusion of the presentation of the evidence, the court shall submit the following issues to the jury:

"(1) 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;

"(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and

"(3) 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.

"(c) The state must prove each issue submitted beyond a reasonable doubt, and the jury shall return a special verdict of 'yes' or 'no' on each issue submitted."

The question specified in (b)(3) was not submitted to the jury.

20. In this case, no evidence was offered by petitioner at trial to contradict the testimony of Doctors Holbrook and Grigson. Nor is there a contention that, despite petitioner's claim of indigence, the court refused to provide an expert for petitioner. In cases of indigency, Texas law provides for the payment of $ 500 for "expenses incurred for purposes of investigation and expert testimony." Tex. Code Crim. Proc. Ann., Art. 26.05(d) (Vernon Supp. 1982).

21. At trial, Dr. Holbrook testified without contradiction that a psychiatrist could predict the future dangerousness of an individual, if given enough background information about the individual. Tr. of Trial (T. Tr.) 2072-2073. Dr. Grigson obviously held a similar view. See id., at 2110, 2134. At the District Court hearing on the habeas petition, the State called two expert witnesses, Dr. George Parker, a psychologist, and Dr. Richard Koons, a psychiatrist. Both of these doctors agreed that accurate predictions of future dangerousness can be made if enough information is provided; furthermore, they both deemed it highly likely that an individual fitting the characteristics of the one in the Barefoot hypothetical would commit future acts of violence. Tr. of Hearing (H. Tr.) 183-248.

Although Barefoot did not present any expert testimony at his trial, at the habeas hearing he called Dr. Fred Fason, a psychiatrist, and Dr. Wendell Dickerson, a psychologist. Dr. Fason did not dwell on the general ability of mental health professionals to predict future dangerousness. Instead, for the most part, he merely criticized the giving of a diagnosis based upon a hypothetical question, without an actual examination. He conceded that, if a medical student described a patient in the terms of the Barefoot hypothetical, his "highest order of suspicion," to the degree of 90%, would be that the patient had a sociopathic personality. Id., at 22. He insisted, however, that this was only an "initial impression," and that no doctor should give a firm "diagnosis" without a full examination and testing. Id., at 22, 29-30, 36. Dr. Dickerson, petitioner's other expert, was the only person to testify who suggested that no reliable psychiatric predictions of dangerousness could ever be made.

We are aware that many mental health professionals have questioned the usefulness of psychiatric predictions of future dangerousness in light of studies indicating that such predictions are often inaccurate. For example, at the habeas hearing, Dr. Dickerson, one of petitioner's expert witnesses, testified that psychiatric predictions of future dangerousness were wrong two out of three times. Id., at 97, 108. He conceded, however, that, despite the high error rate, one "excellently done" study had shown "some predictive validity for predicting violence." Id., at 96, 97. Dr. John Monahan, upon whom one of the State's experts relied as "the leading thinker on this issue," id., at 195, concluded that "the 'best' clinical research currently in existence indicates that psychiatrists and psychologists are accurate in no more than one out of three predictions of violent behavior over a several-year period among institutionalized populations that had both committed violence in the past ... and who were diagnosed as mentally ill." J. Monahan, The Clinical Prediction of Violent Behavior 47-49 (1981) (emphasis in original). However, although Dr. Monahan originally believed that it was impossible to predict violent behavior, by the time he had completed his monograph, he felt that "there may be circumstances in which prediction is both empirically possible and ethically appropriate," and he hoped that his work would improve the appropriateness and accuracy of clinical predictions. Id., at v.

All of these professional doubts about the usefulness of psychiatric predictions can be called to the attention of the jury. Petitioner's entire argument, as well as that of JUSTICE BLACKMUN's dissent, is founded on the premise that a jury will not be able to separate the wheat from the chaff. We do not share in this low evaluation of the adversary process.

22. Petitioner relies on People v. Murtishaw, 29 Cal. 3d 733, 631 P. 2d 446 (1981). There the California Supreme Court held that in light of the general unreliability of such testimony, admitting medical testimony concerning future dangerousness was error in the context of a sentencing proceeding under the California capital punishment statutes. The court observed that "the testimony of [the psychiatrist was] not relevant to any of the listed factors" which the jury was to consider in deciding whether to impose the death penalty. Id., at 771-772, 631 P. 2d, at 469. The court distinguished cases, however, where "the trier of fact is required by statute to determine whether a person is 'dangerous,'" in which event "expert prediction, unreliable though it may be, is often the only evidence available to assist the trier of fact." Ibid. Furthermore, the court acknowledged that "despite the recognized general unreliability of predictions concerning future violence, it may be possible for a party in a particular case to show that a reliable prediction is possible. ...  A reliable prediction might also be conceivable if the defendant had exhibited a long-continued pattern of criminal violence such that any knowledgeable psychiatrist would anticipate future violence." Id., at 774, 631 P. 2d, at 470. Finally, we note that the court did not in any way indicate that its holding was based on constitutional grounds.

23. There is support for this view in our cases, United States v. Spaulding, 293 U.S. 498, 506 (1935), but it does not appear from what the Court there said that the rule was rooted in the Constitution. In any event, we note that the Advisory Committee Notes to Rule 704 of the Federal Rules of Evidence state as follows:

"The basic approach to opinions, lay and expert, in these rules is to admit them when helpful to the trier of fact. In order to render this approach fully effective and to allay any doubt on the subject, the so-called 'ultimate issue' rule is abolished by the instant rule." 28 U. S. C. App., p. 571.

24. Nothing prevented petitioner from propounding a hypothetical to the doctors based on his own version of the facts. On cross-examination, both Drs. Holbrook and Grigson readily admitted that their opinions might change if some of the assumptions in the State's hypothetical were not true.

25. The more certain a State's expert is about his prediction, the easier it is for the defendant to impeach him. For example, in response to Dr. Grigson's assertion that he was "100% sure" that an individual with the characteristics of the one in the hypothetical would commit acts of violence in the future, Dr. Fason testified at the habeas hearing that if a doctor claimed to be 100% sure of something without examining the patient, "we would kick him off the staff of the hospital for his arrogance." H. Tr. 48. Similar testimony could have been presented at Barefoot's trial, but was not.

26. There can be no dispute about this obvious proposition:

"Scientific evidence impresses lay jurors. They tend to assume it is more accurate and objective than lay testimony. A juror who thinks of scientific evidence visualizes instruments capable of amazingly precise measurement, of findings arrived at by dispassionate scientific tests. In short, in the mind of the typical lay juror, a scientific witness has a special aura of credibility." Imwinkelried, Evidence Law and Tactics for the Proponents of Scientific Evidence, in Scientific and Expert Evidence 33, 37 (E. Imwinkelried ed. 1981).



See 22 C. Wright & K. Graham, Federal Practice and Procedure § 5217, p. 295 (1978) ("Scientific ... evidence has great potential for misleading the jury. The low probative worth can often be concealed in the jargon of some expert ..."). This danger created by use of scientific evidence frequently has been recognized by the courts. Speaking specifically of psychiatric predictions of future dangerousness similar to those at issue, one District Court has observed that when such a prediction "is proffered by a witness bearing the title of 'Doctor,' its impact on the jury is much greater than if it were not masquerading as something it is not." White v. Estelle, 554 F.Supp. 851, 858 (SD Tex. 1982). See Note -- People v. Murtishaw: Applying the Frye Test to Psychiatric Predictions of Dangerousness in Capital Cases, 70 Calif. L. Rev. 1069, 1076-1077 (1982). In United States v. Addison, 162 U. S. App. D. C. 199, 202, 498 F.2d 741, 744 (1974), the court observed that scientific evidence may "assume a posture of mystic infallibility in the eyes of a jury of laymen." Another court has noted that scientific evidence "is likely to be shrouded with an aura of near infallibility, akin to the ancient oracle of Delphi." United States v. Alexander, 526 F.2d 161, 168 (CA8 1975). See United States v. Amaral, 488 F.2d 1148, 1152 (CA9 1973); United States v. Wilson, 361 F.Supp. 510, 513 (Md. 1973); People v. King, 266 Cal. App. 2d 437, 461, 72 Cal. Rptr. 478, 493 (1968).

27. Other purportedly scientific proof has met a similar fate. See, e. g., United States v. Kilgus, 571 F.2d 508, 510 (CA9 1978) (expert testimony identifying aircraft through "forward looking infrared system" inadmissible because unreliable and not generally accepted in scientific field to which it belongs); United States v. Brown, 557 F.2d 541, 558-559 (CA6 1977) (expert identification based on "ion microprobic analysis of human hair" not admissible because insufficiently reliable and accurate, and not accepted in its field); United States v. Addison, 162 U. S. App. D. C., at 203, 498 F.2d, at 745 (expert identification based on voice spectrogram inadmissible because not shown reliable); United States v. Hearst, 412 F.Supp. 893, 895 (ND Cal. 1976) (identification testimony of expert in "psycholinguistics" inadmissible because not demonstrably reliable), aff'd on other grounds, 563 F.2d 1331 (CA9 1977).

28. For one thing, although most members of the mental health professions believe that such predictions cannot be made, defense lawyers may experience significant difficulties in locating effective rebuttal witnesses. Davis, Texas Capital Sentencing Procedures: The Role of the Jury and the Restraining Hand of the Expert, 69 J. Crim. L. & Criminology 300, 302 (1978). I presume that the Court's reasoning suggests that, were a defendant to show that he was unable, for financial or other reasons, to obtain an adequate rebuttal expert, a constitutional violation might be found.

29. "Although jurors may treat mitigating psychiatric evidence with skepticism, they may credit psychiatric evidence demonstrating aggravation. Especially when jurors' sensibilities are offended by a crime, they may seize upon evidence of dangerousness to justify an enhanced sentence." .... Thus, the danger of jury deference to expert opinions is particularly acute in death penalty cases. Expert testimony of this sort may permit juries to avoid the difficult and emotionally draining personal decisions concerning rational and just punishment. ... Doctor Grigson himself has noted both the superfluousness and the misleading effect of his testimony:

"'I think you could do away with the psychiatrist in these cases. Just take any man off the street, show him what the guy's done, and most of these things are so clearcut he would say the same things I do. But I think the jurors feel a little better when a psychiatrist says it -- somebody that's supposed to know more than they know.'"

Bloom, Killers and Shrinks, Texas Monthly 64, 68 (July 1978) (quoting Doctor Grigson).

 

 


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