Barefoot v. Estelle

TEXAS ESTELLE, DIRECTOR, BAREFOOT DEPARTMENT OF CORRECTIONS July April 1983—Decided Argued No. 82-6080. Gray argued petitioner.

Will the cause for himWith on Carolyn the briefs was Garcia. argued Greenberg Legal

Jack the cause for the NAACP Defense and Educational Fund, Inc., amicus as curiae urging reversal. him the With brief M. were James Berger, Boger, III, Nabrit Joel John Fins, Charles Deborah Anthony Liebman, James S. G. Amsterdam.

Douglas Attorney M. Becker, Assistant Texas, General of argued respondent. the cause for With him on the brief were Attorney Mattox, Jim R. General, Richards, David Attorney Executive Assistant General.* opinion delivered the of the Court. White Justice questions We have two us in before this case: whether the rejecting petition District on the Court erred merits corpus by petitioner, for habeas filed and whether the Court Appeals correctly stay for the Fifth Circuit denied a penalty pending appeal execution death the District judgment. Court’s

I petitioner On November was convicted of capital police sep- County, murder of a officer Bell Tex. A hearing sentencing jury arate before the same was then held penalty imposed. to determine whether death should be (Vernon Under Tex. Code Ann., Crim. Proc. Art. 37.071 1981),1 special questions two to be were submitted to

*Joel I. Klein filed a brief for the American Psychiatric Association amicus curiae urging reversal. Popeo, Kamenar,

Daniel Paul D. J. and Nicholas E. Calió filed a brief amicus curiae Washington Legal urging Foundation as affirmance. Tucker, Harrell, amici curiae were filed Morris Mama S. by Briefs of Prettyman, Jr., E. Barrett Association; Ger- by and for the American Bar Goldstein, Maverick, Maury ald H. and Burt Neubome for the Texas Civil Smith, Attorney Jim by al.; Florida, et and Liberties Union and General Corees, Jr., Charles General, Attorney State of Assistant for the Florida et al. (Vernon Ann., 1981), provides: Crim. 1 Texas Code Proc. Art. 37.071 “(a) Upon finding guilty capital offense, a the defendant a separate sentencing proceeding court shall conduct a to determine whether was “committed death causing the conduct whether jury: that the death of reasonable expectation and with deliberately and whether “there result”; another would or the deceased acts commit criminal would that the defendant a probability to threat continuing constitute that would violence into evidence petitioner’s introduced The State society.” The for lawlessness. and his reputation convictions prior John Holbrook James psychiatrists, called two also State testified questions, who, response hypothetical Grigson, vio- further acts of commit would probably that petitioner The jury to society. threat continuing represent lence and affirma- to them the put questions answered both of the death imposition which tive, required a result penalty. peti- of Criminal Appeals, the Texas Court appeal

On the use submissions, among other tioner urged, to make hearing predictions at the punishment psychiatrists pro- The imprisonment. sentenced to death or life shall be the defendant jury trial as soon in the trial court before the ceeding shall be conducted any may presented as to mat- proceeding, In the evidence practicable. not be This subsection shall relevant to sentence. ter that the court deems in violation any evidence secured to authorize the introduction construed The of the of Texas. of the United States or State of the Constitution permitted present or his counsel shall be state and the defendant against sentence of death. argument for

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

“(1) death of the that caused the whether the conduct defendant expectation deliberately and with the reasonable deceased was committed result; death of the deceased or another would that the “(2) crimi- commit probability there is a that the defendant would whether society; continuing threat acts of violence that would constitute nal “(3) defendant evidence, the conduct of the if raised whether provocation, response to the killing was unreasonable in the deceased any, by if the deceased. doubt,

“(c) beyond prove a reasonable The state must each issue submitted issue special ‘yes’ or ‘no’ on each jury shall return a verdict of and the submitted.” (b)(3) jury. to the question specified in was not submitted petitioner’s

about future was conduct be- unconstitutional psychiatrists, individually cause class, and as a are not com- petent predict dangerousness. pre- future Hence, their likely produce dictions are so erroneous sentences that Eighth their use violated the and Fourteenth Amendments. urged, any permitting It was also event, answers hypothetical questions by psychiatrists person- who had not ally petitioner examined was constitutional error. The court rejected all these and contentions affirmed the conviction and sentence on 12, March 1980, State, 596 S. W. Barefoot rehearing April 2d 875; was denied on 1980. 30, September

Petitioner’s execution was scheduled for July stay granted 1980. On Court of execution pending filing disposition petition of a for certiorari, which filed was and then denied on June 1981. Barefoot again v. Texas, 453 U. S. 913. Petitioner’s execution was by scheduled courts, state this time for 13,1981. October application corpus An for habeas Texas Court of Crimi- Appeals nal 7, 1981, was denied on October whereafter petition corpus habeas was filed the United States Among District for the Western Court District of Texas. petitioner respect other issues, raised the same claims psychiatric testimony presented to the use of that he had stayed petitioner’s to the state courts. The District pending petition. evidentiary execution action on the An hearing July petitioner was held on 28, 1982, which was represented by competent 9, 1982, counsel. On November findings reject- the District Court filed its and conclusions, ing grounds by petitioner. each of the several asserted accordingly stay petitioner’s writ was denied; also, death sentence was vacated. The granted petitioner’s Court, however, District proceed pauperis motion to informa probable pursuant issued a certificate of to 28 C. cause U. S. § provides appeal may that an 2253, which not be taken to the appeals corpus pro- court of from the final order habeas ceeding complained proc- where the detention of arises out of justice judge ess issued a state court “unless who 886 justice judge issues or a circuit the order

rendered appeal on probable was filed Notice of cause.” certificate of 1982. 24, November January point, as 25, 1983, Texas courts set the

At this corpus petition and for habeas A execution date. the new by stay the Texas were then denied of execution motion for Appeals another 21,1982, and on December Court of Criminal by stay same court denied the execution was for motion January 1983. 11, on Appeals petitioner January for moved the Court of

On stay pending consideration his execution Fifth the Circuit corpus. petition appeal for habeas the denial of his of his from present January parties and notified to briefs the were On January argument 19. The case was court on oral to the January Ap- January the Court of 19, and, heard on stay. denying opinion judgment peals the 697 issued an opinion the recited that court The court’s F. 2d 593 and had heard oral and record filed had studied the briefs attorney argument petitioner’s unlimited was allowed at which germane any matter to the case. time to discuss by giving parties Appeals unlim- was of the view they argue opportunity merits as saw to brief and ited requirements as cases, forth in this Court’s such set fit, (1968), Nowakowski v. 391 U. S. 464 Patterson, Garrison (1967), Maroney, 391 LaVallee, U. S. Carafas (1968), the court understood were satisfied. As U. S. by probable a certificate of cause is issued cases, those when give parties appeals must court, the district the court of opportunity In view, to address the merits. its given opportunity parties to make had been “an unlimited underlying by upon briefs and merits their contentions Appeals argument.” 596. The Court of 2d, oral 697 F. psychiatric proceeded testi- then to address the merits of the presented mony together to the claims not issue, with new jurisdiction no District that the state court had Court, newly petitioner war- evidence resentence and that discovered grounds ranted a new trial. Each was discussed rejected. the court and The court concluded that since the petition stay no had substantial merit, should be denied. application stay

Petitioner then filed an for of execution with the Fifth Circuit Justice for the Circuit, who referred January the matter to the On Court. 24, 1983, the Court stayed petitioner’s treating application execution and, for stay petition judgment, writ of certiorari before granted parties certiorari. U. S. 1169. The were di- argue question presented by rected to brief and “the application, namely, appropriate granting for standard or denying stay disposition pending appeal a of execution of an by appeals by of federal court a death-sentenced federal corpus petitioner, appeal habeas and also the on issues before Appeals the United States Court of for the Fifth Circuit.” orally argued Ibid. The case was here, briefed and and we judgment affirm the now of the District Court. procedures respect by

With to the followed the Court of Appeals refusing petitioner’s stay to death it sentence, appeal primary must remembered that direct is the ave- penalty for nue review of a conviction and sentence, death exception. process are cases no When the of direct review— question right which, if a federal is involved, includes to petition this Court writ certiorari —comes to end, presumption finality legality attaches the conviction proceedings, and sentence. role The of federal habeas while important assuring rights that observed, constitutional secondary and limited. Federal courts are not forums in relitigate which to state trials. Even less is federal habeas a by delay means which a defendant entitled to an execution indefinitely. procedures adopted the or- facilitate derly disposition petitions consideration and are not habeas legal right pursue entitlements that a defendant has a irre- spective procedures contribution these make toward “It is natural that counsel error. constitutional uncovering lay every case should hold condemned a capital for the tend to the advan- in their which, judgment, might ground administration of justice ought but the client, of their tage Lambert on mere pretexts.” interfered with not to be (1895). Furthermore, Barrett, unlike a 159 U. S. out cannot to be carried begin a death sentence term of years, issues remain outstanding. legal while substantial State isolate the exceptional courts must federal Accordingly, retrial or resen- error requires cases where constitutional as will swiftly orderly procedures certainly tencing fail to not, not, however, give need and should permit. They error the careful attention claims of constitutional nonfrivolous deserve. they certiorari before reasons, granted judgment For these we erred Appeals refusing to determine whether sentence. death stay petitioner’s A the Court of urges Appeals improperly Petitioner his to act stay failing finally denied a of execution while the case to remanding He the of suggests possibility appeal. of Dis- without the merits the reaching the Court of Appeals submission trict Court’s The heart of judgment. petitioner’s the case to be is that the Court of unless it believes Appeals, the on its frivolous, appeal was to decide entirely obligated case, in course and in a death the must, stay merits the usual that execution such The State pending disposition. responds of the the Court of reached and decided the merits Appeals in and that issues the course of presented denying stay had to address the merits. petitioner ample opportunity “if an We have held that an previously appellant persuades exists, that cause for an appeal tribunal appropriate probable he must then to address opportunity be afforded ” supra, (per Patterson, underlying merits. Garrison v. curiam). Maroney, supra; Nowakowski v. See Carafas supra.

LaVallee, These decisions if indicate that a court of appeals appeal is unable to resolve the merits of an before the petitioner date execution, scheduled is entitled to a stay permit execution due consideration of the merits. requirement But we have also held that the of a decision on prevent appeals the merits “does not the courts of from adopting appropriate summary procedures disposi- for final tion of such cases.” v. Patterson, Garrison S.,U. at 466. LaVallee, S., See 391 U. at 242. In Garrison, Carafas examining prior holdings, after our we concluded: “[N]othing prevents [in cases] appeals these the courts of considering questions probable from cause and the together, nothing merits said or there here neces- sarily requires briefing every full instance in which a granted. only appeal certificate is We hold that where an possesses sufficient merit to a certificate, warrant appellant adequate opportunity must be afforded summary procedure address the if a merits, and that adopted appellant be informed, must rule or other- opportunity wise, his will limited.” S., 391 U. at 466. emphasized, ample

We ibid., that there must be evidence disposing appeal, the merits have ad- been nothing applicable dressed, but that cases rules prevents appeals adopting summary proce- a court from dures such cases.

On the it is not surface, clear whether the Fifth Circuit’s practice showing requiring prospect recent of some issuing stay success on the merits before of execution, O’Bryan (1982); v. Estelle, 691 F. 2d Brooks v. (1982), comports require- F. Estelle, 697 2d 586 with these Approving ments. the execution of a before his defendant appeal clearly improper on decided the merits would under Garrison, Nowakowski, However, and Carafas. practice deciding appeal, possible, of an merits when stay, application together for a is not inconsistent with the with our cases. Appeals appears in this case

It clear that Appeals fully pursued The Court of was the latter course. requirements precedents ruled that their and aware our quoting fully Garrison, from the Court After were satisfied. Appeals said: language. fall under this Petitioner’s “Our actions here parties solely The merits. motion is directed opportunity unlimited also afforded an have been underlying upon the merits and make their contentions opinion argument. This demonstrates the reasons oral 2d, 697 F. at 596. for our decision.” opinion Appeal: Psychi- In its entitled “Merits of a section of Testimony Dangerousness,” Appeals on the Court of atric reject proceeded petitioner’s issue to address that and then contentions. Appeals pursued in this case

The course the Court of prior of our In connection was within the bounds decisions. stay, parties acting file on the were directed to light present argument. and oral In the Fifth briefs O’Bryan practice, supra; v. Estelle, Circuit’s announced stay supra, it clear whether a Estelle, Brooks was probability granted depended success on would be parties merits. The the merits and were the given addressed present argument. agree unlimited We do not time petitioner attorneys prejudiced and their that preparation his were primary presented appeal. issue had proceedings argued throughout in the been briefed and reargued in state and the District courts rebriefed proceeding. corpus time the Court’s From the habeas petition 9, District Court ruled on the on November petitioner days prepare had 71 which to the briefs arguments presented to Fifth Circuit on which were January 1983.

Although Appeals formally the Court of did not affirm the judgment question of the District Court, there no that the Appeals Court of appeal, ruled on the merits of the as its concluding statements demonstrate:

“This Court has had the benefit of the full trial court except unimportant record for a few exhibits to our con- arguments siderations. We have read the and materials parties. petitioner represented filed here, throughout corpus as proceed- he has been the habeas ings by competent in attorney courts, state federal experienced in this area of the law. We have heard full arguments open Finding patent court. no substantial petitioner’s or merit, semblance thereof, constitutional objections, we must conclude and order that the motion stay for should be DENIED.” 2d, 697 F. at 599-600. It would have advisable, been once the court had addressed verify the merits and arrived at conclusions, these by expressly affirming judgment obvious of the District deny stay. Court, as well toas The court’s failure to do so, however, does conflict with Garrison and related “[i]n cases. Indeed, Garrison itself, the Court noted that an effort to determine whether the merits had been ad- . . dressed . this Court solicited further submissions from the parties S., this case.” 391 U. n. If 2. a formal required, inquiry decision on the merits were this would have pointless. Appeals been the Court of cannot Moreover, formally affirming judgment faulted for not of the Dis- trict Court since this over the Court, dissent three Justices arguing petitioner stay as does here, refused to an execution very Appeals in a case where the followed similar (1982).2 procedures. Brooks v. Estelle, 459 U. S. 1061 case, In that the application stay petition we treated for certio- petition rari or judgment. the alternative as for certiorari before We petition assumption. denied the on either swiftly Appeals Although to decide the moved the Court stay, of the merits was mean that its treatment does not contrary, cursory inadequate. resolu- the court’s On psychi- appeal, primary the of issue on admission of the tion dangerousness, reflects careful consider- atric Appeals to the Court of reasons, these to remand ation. For judgment the of the District Court was that for verification of exaltation form over an unwarranted would be affirmed substance.

B Appeals’ handling of case toler- was That the Court of suggest precedents not to that its course our able under proce- accepted preferred as the norm or be should increasing public that num- of record an It is a matter dure. entering petitioners appellate of death-sentenced ber stages process. fair efficient of habeas The and the federal procedures appeals requires proper of these consideration stays handling applications of for of executions for procedures of that allow decision on the merits demands appeal stay. accompanying development the denial of a primarily procedures of the these a function courts of appeals rulemaking processes of courts, and the the federal followinggeneral guidelines can set but forth. Congress pris- requirement

First. established the appeal probable obtain a certificate of cause to in order oner appeals delaying ability prevent from the States’ frivolous impose including pri- death sentences.3 The sentences, 3 Corpus 1867, 5,1867, 28, 1,14 § The Habeas Act of Act of Feb. ch. Stat. 385, empowering the first Act writ of federal courts issue a habeas cor persons pus custody, imposed stay “any pro in state an automatic against ceeding person” pending proceedings appeal” such “such involved Id., prisoner’s petition. 386; § of a determination see Rev. Stat. 766. provision required stay pending disposition appeal This of execution of an Peck, Rogers capital 425, Lambert v. (1905); cases. 199 U. S. 436 Barrett, (1895). 1908, In increasing 159 U. S. 662 concerned corpus petitions capital of frivolous challenging number habeas sentences delayed pending completion process, which appellate execution Con-

893 mary separating appeals means of meritorious from frivolous grant should be the decision to or withhold a certificate of probable generally agreed “probable cause. It is cause requires something frivolity more than the absence higher ‘good require that the standard is a one than the faith’ § Paupe ment of 1915.” Blackmun, of In Allowance Forma §2255 Appeals Corpus ris and Habeas Cases, 43 F. R. D. (1967). agree weight opinion 352 We with the in the Appeals probable Courts of that a certificate of cause re quires petitioner showing to make a “substantial denial right.” [a] of (CA5 Beto, federal Stewart v. 268, 270, F. 2d n. 2 1971), cert. denied, U. S. See also (CA10 Ramsey 1962); Hand, F. 2d Goode v. (CA11 1982).4 Wainwright, capital 670 F. 2d 941 In a case, penalty proper nature ais consideration deter mining probable whether to issue a cause, certificate of but severity penalty the not in does itself sufficeto warrant issuing the automatic of a certificate. probable by

Second. aWhen certificate of cause is issued by court, the district it in case, as was or later the court appeals, petitioner opportunity of must then be an afforded appeals obligated to merits, address the and the court of is appeal. Accordingly, to decide the of merits a court of appeals, necessary prevent becoming where to from case gress requirement prisoner inserted the that a first obtain a certificate of probable appeal being 10, cause to before entitled do so. Act of Mar. 1908, 76, Rep. ch. Sess., Stat. 40. See H. R. Cong., No. 60th 1st (1908); 1-2 42 Cong. Rec. 608-609 following quotation cogently up sums this standard: requiring substance’, “In a ‘question showing of some or a ‘substantial right,’ obviously [a] denial of federal petitioner need show that prevail he already should on the merits. He has failed that endeavor. Rather, he must among jurists demonstrate that the issues are debatable that a court could resolve reason; manner]; [in the issues a different or questions ‘adequate encouragement proceed that the to deserve fur 1980) Willis, ther.’” Gordon (ND Supp. (citing 516 F. Ga. Richmond, ex United States rel. Jones (CA2), 245 F. 2d 234 cert. de (1957)). nied, 355 S.U. grant stay by petitioner’s a execution, should moot appeal pending disposition of an when a condemned execution probable prisoner his initial cause on obtains certificate of appeal. habeas ap- indicated, a court earlier cases have

Third. As our expedited procedures resolving may adopt peals the merits notwithstanding appeals, a certifi- the issuance of of habeas probable If circuit chooses to follow this cause. cate of promulgate a local rule it be advisable course, would stating in which such cases will be handled and the manner appeal may informing an that the merits of be decided counsel stay. proce- upon special Even for a without the motion entirely appropriate appeal is “friv- it is which dures, entirely without merit” be dismissed after hear- olous stay. g., ing e. See, a motion for Local Rule Appeals for Fifth We caution that the issuance Circuit. probable generally of a certificate of cause should indicate legally appeal and that a court of frivolous, that an is not petitioner’s squarely appeals claim should be confident that or statute, rule, decision, foreclosed authoritative court lacking any case, factual basis the record before dismissing it as frivolous. may appeal appeals frivolous,

If an is not a court of still briefing expedite hearing choose to the merits of all or of stay selected which a of a death has cases sentence been requested, provided adequate opportunity that counsel has expected merits address the and knows that he is to do so. provided, appropriate argument If notice is the merits may stay the be heard at same time the motion for a is consid- may opinion single and the court thereafter a ered, render deciding exigencies both the and motion, merits unless preclude time a considered decision on merits, which stay granted. choosing case the motion a must be In procedures to be used, courts should consider whether delay by summary procedures that is avoided warrants departing processes appel- from the normal, untruncated expedition briefing

late review. In instances where argument appeals may and schedule is not ordered, court of capital nevertheless choose to advance cases on the docket so appeals delayed by weight that the decision of these is of other business. corpus

Fourth. peti- Second and successive federal habeas present tions a different issue. “To the extent that these danger might attempt involve the that a condemned inmate repeated petitions appeals delaying use aas mere legitimate quite preventing tactic, the State has a interest in Legal such abuses of the writ.” Brief for NAACP Defense Fund, Inc., Educational as Amicus Curiae 40-41. Title 9(b) §2254 28 U. S. C. Rule states that “a second or succes- petition may judge sive be dismissed if the finds that it fails allege grounds [or if] new or different for relief ... petitioner grounds prior failure of the to assert those in a petition constituted abuse of the writ.” See Sanders v. (1963);Advisory States, United 373 U. 181,S. Committee 9(b), p.C., Note to Rule 28 U. S. 273. it Even where cannot petition be concluded that a should be dismissed under Rule 9(b), proper expedite it would be for the district court petition. granting stay consideration of the of a should presence grounds upon reflect the of substantial which relief might granted. Stays pending of execution are not automatic Fifth.

filing petition and consideration of a for writ certiorari appeals from this Court to the court of that has denied a writ “ corpus. of habeas It is well established that there 'must be probability a reasonable that four Members of the underlying sufficiently would consider the issue meritorious grant probable jurisdic- for the certiorari the notation of significant possibility tion; there must be a of reversal of the lower court’s decision; and there must be likelihood that irreparable stayed.’” harm will result if that is not decision White v. Florida, 458 U. S. (1982) (Powell, J., chambers) (quoting Times-Picayune Publishing Corp. v. (1974) Schulingkamp, 419 U. S. (POWELL, J., chambers)). stays Applications for of death sentences are necessary expected the to information and materials contain issue so assessment the merits and to make careful plenary stay reliably and a are whether review determine stay sought first A of execution should be from warranted. generally places appeals, this Court consider- court of appeals weight the decision reached courts able circumstances. these Ill is that his death sentence Petitioner’s merits submission of the United must set aside because Constitution be testimony psychiatrists two States barred the who against punishment hearing. him the There are testified urged aspects psychia- First, to this claim. it is that several incompetent predict individually group, as a trists, degree reliability acceptable particular crim- with an represent commit other crimes the future and so inal will community. any danger it is that in Second, to the said testify psychiatrists permitted should not be about event, dangerousness response hypothetical questions future having personally. defendant and without examined the particular argued it is that in the of this Third, circumstances psychiatrists was so unreliable that case, below, the sentence should be set aside. As indicated we reject arguments. each of these

A suggestion psychiatrist’s testimony may no presented respect dangerousness to a defendant’s future asking In the is somewhat like us to disinvent wheel. place, contrary If likelihood of a first it is to our cases. constitutionally committing defendant’s further crimes is a penalty, acceptable imposing it criterion the death which (1976), impos- and if it is not is, Texas, Jurek U. S. lay person sensibly sible for even a to arrive at that conclu- any, psychia- it little if sion, sense, makes to submit that persons might trists, out of the entire universe who have opinion subject on the would know so issue, little about the they permitted testify. that should not to In Jurek, rejected impossible seven Justices the claim that it to was predict dangerousness future behavior and that was there- imposing penalty. fore an invalid consideration in the death responded Stewart, Powell, and Stevens di- Justices rectly argument, to id., the at 274-276: easy predict “It is, of not to course, future behavior. The fact that such a difficult, however, determination is predic- does mean it that cannot be Indeed, made. tion of criminal future conduct is an in essential element many throughout of the decisions rendered criminal our justice system. The decision whether admit defend- judge’s ant to bail, for must turn instance, often on a prediction Any of the defendant’s future conduct. sen- tencing authority predict person’s prob- must a convicted engages process able future conduct when it determining in the punishment impose. what For those prison, predictions sentenced these same must be by parole jury made authorities. The task that Texas perform answering statutory question must basically per- issue is thus no different from task day throughout formed countless times each the Ameri- system justice. can of criminal What is essential is that jury possible have it before all relevant information about the individual defendant whose fate it must deter- clearly mine. Texas law assures that all evidence such bewill adduced.”

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

Acceptance testimony that dangerousness about future is far too unreliable to admissi- immediately question call into ble would those other contexts predictions constantly in which of future behavior are made. example, in 422 Donaldson, For O’Connor U. S.

(1975), nondangerous hospital patient we held that mental against could not be held speaking confinement his Later, will. requirements about the for civil commitments, we said: may proceed-

“There be factual issues in a commitment ing, aspects represent only beginning but the factual inquiry. mentally Whether the individual is ill dangerous and to either himself or others and is in need therapy meaning of confined turns on the of the facts interpreted by expert psychiatrists which must be psychologists.” Addington Texas, U. S. place, generally

In the second the rules of evidence extant anticipate unpriv at the federal and state levels relevant, that ileged weight evidence should be admitted and its left to the factfinder, who would have the benefit of cross-examination contrary by opposing party. Psychiatric evidence testimony predicting dangerousness may be countered not only particular generally as erroneous in a case but also as so ignored. jury may unreliable that it should be If the make up dangerousness by psychi its mind about future unaided testimony, jurors hearing atric should not be barred from

views of the State’s psychiatrists along views opposing of the defendant’s doctors.5

Third, petitioner’s view mirrors the position expressed the amicus brief of the American Psychiatric Association (APA). As indicated above, however, the same view was Estelle v. Smith. We are no more presented and rejected convinced now that the view of the APA should be converted into a constitutional rule barring entire category expert We are testimony.6 not persuaded that such almost entirely unreliable and that the factfinder and the adversary system will not be competent uncover, recognize, and take due account of its shortcomings.

The amicus does not suggest there are not other views held members of the Association or of the profession generally. Indeed, this case and others indicate, there are those doctors who are quite willing at the testify who sentencing hearing, think, and will say, they know what they talking about, and who expressly disagree with the Association’s point of view.7 Furthermore, their ease, In by petitioner no evidence was offered at trial to contradict of Doctors Holbrook Grigson. and Nor is there a contention that, despite petitioner’s indigence, claim of provide the court refused to an expert petitioner. for In indigency, cases of provides Texas law for the payment of “expenses for purposes $500 incurred for investigation and expert (Vernon testimony.” 26.05(d) Ann., Tex. Code Crim. Proe. Art. 1982). Supp. 6The federal cases cited in Justice rejecting Blackmun’s dissent as proof,” post, 931, 9, “scientific at decisions, n. are not constitutional but decisions of federal evidence law. The question before us is whether the exposing Constitution jury judge forbids in a state criminal trial to opinions psychiatrists about an issue that Justice Blackmun’s dis sent concedes the factfinders themselves constitutionally competent are decide. 7 trial, At Dr. Holbrook testified psychiatrist without contradiction that a predict could dangerousness the future individual, given of an if enough background (T. Tr.) information about the individual. Tr. of Trial 2072- 2073. Grigson obviously Dr. id., 2110, held a similar view. at See 2134. At the District hearing petition, the habeas the State called two expert witnesses, George Parker, Dr. psychologist, a and Dr. Richard the courts. by accepted as are experts regularly qualifications discredited, and should be obviously wrong If are so they calling in so doing insuperable problem be no there should agreed pre- that accurate Koons, Both of these doctors psychiatrist. a enough pro- if information dangerousness can be made of future dictions likely furthermore, highly that an individual they both deemed it vided; hypothetical in the Barefoot would of the one fitting the characteristics (H. Tr.) Hearing 183-248. Tr. of future acts of violence. commit trial, any expert testimony at his at the present Although Barefoot did not Fason, psychiatrist, a and Dr. Wendell Dr. Fred hearing he called habeas general abil- not dwell on the Dickerson, psychologist. Dr. Fason did a dangerousness. In- predict future professionals to ity of mental health giving diagnosis of a merely criticized the stead, part, the most he for He examination. question, an actual upon hypothetical without based terms of the patient that, if a student described conceded medical degree of suspicion,” to the “highest order of hypothetical, his Barefoot Id., sociopathic personality. at 22. patient had a 90%, would be that the however, only impression,” “initial and that insisted, that this was He “diagnosis” a full examination give a firm without no doctor should expert, 29-30, Dickerson, petitioner’s other Id., 22, 36. Dr. testing. at psychiatric testify suggested that no reliable only person to who was the predictions dangerousness could ever be made. professionals questioned have many mental health

We are aware that dangerousness light psychiatric predictions of future the usefulness of For predictions often inaccurate. indicating that such of studies Dickerson, petitioner’s expert hearing, Dr. one of example, at the habeas dangerousness witnesses, predictions future psychiatric testified that conceded, Id., how- at 108. He wrong were two out of three times. study that, rate, “excellently done” had ever, despite high error one Id., 97. predictive validity predicting violence.” shown “some as “the Monahan, upon experts relied Dr. whom one of State’s John issue,” id., “the ‘best’ clinical leading on this concluded that thinker psycholo- currently psychiatrists research existence indicates violent predictions one out three gists are accurate in no more than among populations several-year period institutionalized behavior over diagnosed in the . . and who were past. that had both committed violence Monahan, Behavior mentally The Clinical Prediction of Violent ill.” J. (1981) However, although Dr. Monahan (emphasis original). 47-49 behavior, by predict originally impossible that it was violent believed may cir- be completed monograph, his he felt that “there the time he had ethically prediction empirically possible and cumstances in which is both are members of the Association who of that view who their amicus brief. Nei- assert that confidently opinion ther nor the Association that petitioner suggests psychia- trists always wrong respect to future dangerous- most time. the ness, of the Yet is only submission that should be excised all category testimony entirely from trials. are unconvinced, however, now, We at least as of that the be adversary cannot trusted to sort the process out reliable the from unreliable evidence and about opinion future dangerousness, when the the particularly convicted felon has his own of the opportunity present side case.

We are unaware of and have not been any case, cited to fed- state, eral or that has adopted categorical views of Certainly Association.8 it was rejected at presented every appropriate,” hoped and he that improve appropriate- his work would accuracy predictions. Id., ness and of clinical at v. professional

All of psychiatric these doubts about usefulness of predictions jury. can be called to the of the attention Petitioner’s entire argument, dissent, well as that is founded Justice Blackmun’s premise jury separate that a will not be able the wheat from the chaff. not in this adversary process. We do share low evaluation of the Murtishaw, People Petitioner relies on 29 Cal. 3d 631 P. 2d 446 Supreme light gen There the California Court held that in unreliability testimony, eral admitting testimony of such medical concern ing dangerousness future sentencing proceed was error in the context of a ing capital punishment under the California statutes. The court observed psychiatrist any “the [the was] relevant to jury deciding listed factors” which the was to im consider whether to pose Id., penalty. 771-772, 2d, the death 631 P. dis at 469. court tinguished eases, however, required where “the trier of fact is statute to ” person ‘dangerous,’ “expert pre determine whether a in which event diction, though may be, only unreliable it is often the evidence available ” Furthermore, acknowledged assist the trier of fact. Ibid. the court “despite recognized general unreliability concerning predictions violence, may future possible party particular it be for a case to show prediction possible. that a A prediction might reliable reliable also ... if long-continued pattern conceivable defendant had exhibited any criminal knowledgeable psychiatrist violence such that would antici pate Id., 2d, Finally, future violence.” 631 P. at 470. we note stage present proceeding. listening of the After to the two thought testify only generally schoolsof not but also the about petitioner record, and his criminal District Court found: majority psychiatric experts agree

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

constitutional Estelle, (SD White Petitioner also relies on Supp. 564 P. Tex. 1982). The court in that case express did no more than “serious reserva tions” psychiatric predictions about the use of hypotheticals based on instances previous where the doctor had no has contact with the defendant. Id., case, at 858. holding totally The actual which is irrelevant here, of a doctor who had interviewed the issues was that the because, the defendant prior interview, should have been excluded to the Miranda given the defendant warnings opportunity had not been or an Smith, Estelle attorney, consult with required by his as 451 U. S. 454 agree We Court, the District as well with the Court Appeals’judges dealt who with merits of the issue and agreed respect. with the District Court

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

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

904 (1873);Forsyth 15 26-27 Hall, also Dexter v. Wall.

See (1887); States, Bram v. United Doolittle, U. S. U. 568-569 S.

Today, system, Federal Rules of Evidence the federal experts. Advisory provide 702-706 for the particular objections hypo- touch on the Committee Notes any sup- questions, none of these caveats lends thetical but arguments. port petitioner’s Furthermore, constitutional Appeals the Texas Court of Criminal could find no fault with examining psychiatrists the two under Texas mode law: by permitting err doctors

“The trial court did not testify hypothetical question. on the basis of the hypothetical questions The use of in the examination expert practice. witnesses is a well-established (2d § Ray, and R. Texas Evidence, C. McCormick 1956). experts appel- ed. That the had not examined weight testimony, lant went to the of their not to its admissibility.” 2d, 596 S. W. at 887. Appeals,

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

C petitioner, As we understand if he contends that even hypothetical questions predicting danger- the use of in future acceptable general ousness is as a rule, the use made of them right process in his case violated his to due of law. For example, petitioner insists that the doctors should not have permitted give opinion been on the ultimate issue jury, particularly hypothetical questions before the when the phrased petitioner’s conduct;9 were terms own that the hypothetical questions facts;10 referred controverted and questions positive that the answers to the so were as to be opinion.11 assertions of fact and These claims of mis- hypothetical questions, use others, as well as were rejected by the courts, Texas and neither the District Court Appeals any infirmity nor the Court of found constitutional application in the Rules of Texas Evidence particular agree. case. We

ji— t> judgment In affirm the sum, we of the District Court. psychiatric testimony There is no doubt that increased petitioner likelihood would be sentenced to death, any but this fact does not make inadmissible, that evidence respect more than it would with to other relevant evidence Spaulding, cases, There United States support for this view in our (1935), S. appear U. but it does not from what the Court there event, said that the any rule was rooted In Constitution. we note Advisory that the Committee Notes to Rule 704 of the Federal Rules Evidence state as follows:

“The approach opinions, lay expert, basic these rules to admit when helpful approach them to the trier of In fact. order render this fully allay any subject, effective and to doubt on the so-called ‘ultimate issue’ rule is App., p. abolished the instant rule.” 28 U. S. C. 571. 10 Nothingprevented petitioner propounding hypothetical from to the cross-examination, doctors based on his own version of the facts. On both Grigson readily Drs. Holbrook opinions might admitted that their change assumptions if hypothetical some in the State’s were not true. T. Tr. 2132-2133.

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

against under- seriously basic would position with agree petitioner’s Texas, effect overrule Jurek 428 U. mine and S. as much at oral Tr. of argument. Petitioner conceded inclined, however, are not to overturn 23-25. We Arg.

Oral in that case. decision the District Court is judgment

Affirmed. in the Stevens, Justice concurring judgment. I II stated Parts of Justice Mar-

For the reasons I that the shall’s Court of dissenting opinion, agree Appeals in this case. Nevertheless, made a serious error procedural the merits of since this Court has now reviewed petitioner’s I with the ultimate conclusion that agree and since appeal, must be I affirmed, join of the District Court judgment the Court’s judgment. Marshall,

Justice with whom Justice Brennan joins, dissenting.

I cannot subscribe to the Court’s conclusion that the proce- dure Appeals followed this case was “not Ante, inconsistent our cases.” at 890. can I Nor the notion that it would be for a court of accept proper appeals cases. adopt special “summary procedures” capital Ante, 894. I merits, On the would vacate petitioner’s death sentence.

I I a state has wholeheartedly agree prisoner when obtained certificate of cause to from the probable appeal denial of a for a writ of habeas he “must then be petition corpus, afforded an merits, to address the and the court opportunity to decide the merits of the appeals obligated appeal.” Ante, at 893. A has made the neces- prisoner showing who sary obtain certificate of cause has satisfied probable condition that only has on the Congress placed right appeal

907 in habeas We cases.1 have held that once corpus repeatedly a has probable certificate of cause been an granted, appeal be “duly must considered”2 and of on the mer- “disposed court by its”3 the “in accord with appeals its ordinary procedure.”4

I agree likewise that the of a “[alpproving execution de fendant before his is decided on the appeal merits would clearly be and that “a court improper,” where nec appeals, essary to the case from prevent moot becoming peti execution, tioner’s a grant should of execution stay pending Ante, A disposition appeal.” 889, [his] 893-894. pris if right oner’s would be appeal meaningless State were him allowed execute before his could be appeal considered and decided. Although question had been decided by this until with the Fifth today, Cir exception cuit’s this and in Brooks rulings Estelle, case v. 697 F. 2d cert, 586, stay and before denied, 459 U. S. 1061 judgment (1982),5 the Courts of Appeals have held that a consistently stay execution must it is granted unless clear 1 § provides Title 28 U. C. corpus proceeding “[i]n S. 2253 a habeas judge, subject review, before circuit or district the final order shall be appeal, by on appeals proceeding the court of for the circuit where the had,” if petitioner probable jus obtains certificate of cause from “the judge tice justice judge.” or who rendered the order aor circuit 2 LaVallee, (1968). 234, v. 391 U. S. 242 Carafas 3 curiam). Patterson, (1968) (per Garrison v. 464, U. 466 391 S. curiam). (1967) Maroney, 4 Nowakowski v. (per 542, 386 U. 543 S. See generally Blackmun, § Pauperis Appeals Allowance of In Forma in 2255 Corpus Cases, and Habeas 43 F. R. D. 343 5 in Brooks v. Estelle similar procedure While Fifth Circuit followed a employed here, application to that stay this Court’s denial of for a Brooks’ petition judgment precedent certiorari before does not constitute a approving procedure. precedential Denials of certiorari never have Allen, g., e. Brown value, see, Large, (1953); Sunal 344 v. U. S. Mayo, House (1947); (1945), 332 U. S. U. S. stay precedential denial can have no value either since the Court’s did apply order not discuss the appeals standard that courts of should passing application stay pending appeal. for a g., entirely prisoner’s appeal e. See, frivolous. Goode is (CA11 1982); Wainwright, 942 v. F. 2d Shaw v. 670 1980) (CA4 (Phillips, J.); 613 F. 2d United Martin, (CA3 1954); McCorkle, v. F. 2d 823 ex rel. DeVita States 1952) (CA9 (Denman, Fouquette 198F. 2d Bernard, v. J.).6 recognition simple fact This rule reflects a C. stay very proceedings “[i]n motion nature of on a for the that coupled the con limited time execution, of the record preclude any inquiry into . . fine-tuned the actual . straints supra, Martin, at 492. merits.” Shaw acceptance principles, I the Court’s of these basic Given frankly that not understand how the Court can conclude do Appeals’ this of treatment of case was “tolerable.” Court says, Appeals of at 892. as the Court the Court Ante, If, appeal,” “obligated ante, merits of the was to decide the obligation, definitely discharge most failed to that 893, it petitioner’s simply appeal. It the court never ruled say Appeals on the merits of false to that “the Court of ruled plainly appeal.” Ante, at 891. The record shows thing. Appeals no neither did such It dismissed Court judgment appeal nor of the Dis- as frivolous affirmed Appeals ruling and one trict The Court made one Court. ruling only: stay petitioner’s Had it refused to execution. put stay, petitioner granted have would been this Court appeal having been decided one death without his ever way or the other. any flatly wrong suggesting was defect Court

merely Appeals have could technical because the Court affirming judgment expressly “verified] the obvious rulings approach. Until its recent the Fifth Circuit also followed 128, 129 Sigler, States ex rel. Goins United See 250 F. 2d imposed by federal long been rule that

It has a death sentence stayed appeal. court will a matter of if the takes an be course defendant (“A 38(a)(1) stayed if shall See Rule Crim. Proc. sentence of death Fed. taken”). an appeal is stay. District Court” at the time same it denied a Appeals’ peti- Ante, at 891. The Court of failure to decide appeal oversight. simply tioner’s was no The court had no authority appeal papers to decide the on the basis of the response question very point it. In before to a on this at oral argument, respondent expressly conceded that the Court Appeals position inwas no to affirm the District Court’s judgment: you Appeals] [the Do think

“QUESTION: could judgment as well have concluded that the of the District Court should be affirmed? Arg.

“MR. BECKER: . . .” Tr. No, sir . of Oral. 39. Appellate Neither the Federal of Rules Procedure, nor the any local rules of the Fifth Circuit, nor of decision the Fifth prior Circuit, would have authorized an affirmance to the fil- ing of briefs on the merits.7 Appeals petitioner’s

Nor could the Court of have dismissed appeal Although as frivolous. Rule 20 of the local rules of permits appeal, peti- the Fifth Circuit dismissal of a frivolous appeal subject tioner’s was not to dismissal under this Rule simple by for the reason—also conceded the State at oral argument, Arg. of Tr. Oral 32—that it not frivolous. was Appeals

The Court of not, did because it not, could decide petitioner’s appeal. What the court all decided, and that it petitioner’s prevailing decided, was that the likelihood of justify delay the merits was insufficient to that would staying pending disposition from result his execution of his 7 Arg. See Tr. of 41: Oral

“QUESTION: [W]hy you suggest wrong would it would be for the Court Appeals just to affirm? “MR. If policy, they BECKER: that was their routine I think could. “QUESTION: wasn’t, But it was it? wasn’t_” sir, No, “MR. BECKER: it In respondent Appeals opposing memorandum filed in the stay, suggestion there was position no that the in a court was to decide the appeal.

910 ruling question

appeal.8 is The before us whether was erroneously by permissible, it avoided assum- and cannot be petitioner’s ing Appeals could have decided that the Court of stay. appeal it at same time denied by very principles II-B of its stated the Court Part The prisoner provide question. opinion Once a the answer to this probable appeal, cause “the has obtained a certificate ap- obligated appeals the merits of the to decide court peal.” so on no less than three Ante, at 893. We have held separate Patterson, Garrison v. 391 U. S. occasions. See (1968) curiam); (per LaVallee, v. U. S. Carafas (1968); Maroney, v. S. Nowakowski U. (1967) curiam). recognizes, (per As also ante, the Court obligation appeals fulfill this if it 893-894, a court cannot prisoner appeal permits before his the State to execute the probable appeal “[I]f it cause for the would decided. there is prisoner] pend- mockery justice [the to execute federal ing Fouquette supra, Bernard, at 97. its consideration.” procedure effort to reconcile followed Court’s Appeals principles is on an the Court of with these based misreading egregious Ante, of Garrison Patterson. explicitly that “when a district 891. We stated Garrison grants ap- probable of a of cause the court court certificate appeal peals ‘proceed disposition in to a the accord must of ordinary quoting procedure.’” its at S., U. attempt Maroney, supra, In Nowakowski v. at 543. an quotes import statement, the of the avoid obvious this Court a in stated that out of context footnote which we Garrison “[i]n had an the merits been effort determine whether from we “solicited further submissions addressed” had cursory parties.” 391 U. at n. 2. Even most S., why opinion footnote examination of shows this Garrison conclusion, reaching Appeals In of relied on cases involv Court stay stays ordinary litigation a will ing civil in which the denial of litigants appeal one his can be not result in the execution of of the before decided.

provides support no whatsoever for the Court’s conclusion ruling stay of consideration the merits in on a an makes appeal unnecessary. actual on the decision merits of an Appeals In Garrison, in contrast case, to this the Court of prisoner’s appeal. did decide the It an issued order in which granted probable it a certificate cause and in the next sen- explana- tence affirmed the District Court’s decision without merely tion. Id., at 465. To determine whether this was a pro unaccompanied by any decision real consideration forma par- we issues, solicited further submissions from the ties “to determine whether the merits had been addressed hearing” at Appeals. ... the unrecorded before the Court of responses n. Id., 2. Since the we not received did Appeals actually demonstrate that the Court had consid- ered the merits, ibid., we reversed remanded for further appeal. consideration

Garrison establishes that consideration the merits is necessary satisfy appeals’ statutory obligation. a court of way suggests, It in no however, that consideration of the ruling ap- merits can ever peal. abe substitute actual on the Appeals Garrison held that the Court of had failed to discharge statutory obligation though its it even did decide prisoner’s appeal. holding This cannot be transformed authority proposition appeals into for the that a court of need prisoner’s appeal a decide all if it considers the merits appeal ruling interlocutory on an motion. justification procedure The Court offers no for the followed Appeals because A there is none. has State legitimate executing prisoner no interest in before he has stay obtained full review of his sentence. A of execution pending appeal apart causes no harm to the State from the providing jail prisoner minimal burden of cell for the for the period necessary appeal. By of time his contrast, decide stay finding hasty pris- denial aof on the basis of a that the likely appeal permits oner is not to succeed on his to the State prior concededly him execute to full review of a substantial 912 challenge If the court’s hur- to his sentence.

constitutional entirely appeal proves erroneous, is of the evaluation ried legal possible are decided without ade- when difficult issues quate briefing consideration, and full the execution time for impossible prisoner it undo mistake. will make to of the Judge judge did decided, has as the District a federal Once prisoner death has raised a under sentence of that a here, travesty justice to it is a claim, constitutional substantial appeal permit him his can be execute before the State to right prisoner’s statutory If to a and decided. considered simply anything, appeal to cannot be allowed means State thereby appeal. kill him moot his

I—II—I HH approving precipitous procedure fol- Not content suggest proceeds in case, in the Court also lowed appeals might prop- opinion II-B court Part of its that a adopt “summary procedures” erly special or . for “all . . stay in has which a of death sentence been selected cases requested.” Ante, at 894. suggestion important in is mind the Court’s

It bear probable at cases in which a certificate of cause is directed granted appeals appeal has has and the court of con- been appeal prisoner If had cluded that the frivolous.9 any punishment his been other than death, sentenced appeal have decided would therefore been considered and only agree may an appeal

9 I with the Court that be dismissed as frivolous by statute, rule, decision, if squarely it “is foreclosed or court authoritative Ante, lacking any factual I basis the record.” 894. would add changes frequent years governing in view recent the law (1981) g., Bullington Missouri, e. capital cases, see, v. 451 480 U. S. States, (1919)); Stroud v. United Gardner (distinguishing 15 U. S. (1977) Florida, York, New Williams (distinguishing U. S. (1949)), appeal challenges holding U. S. fact that an of this Court plausible argument does not make it if a can made that frivolous question by developments. in question decision has been called into later

[913] appeals’ ordinary procedure. accord with the court But since he has been death, sentenced to and since his sched- appeal imminent, uled date of is his execution is to be decided procedures. special appeal under In truncated short, that question singled raises a substantial constitutional is to be summary solely out for treatment because the State has appellant its announced intention execute before ordinary appellate procedure run has its course. truly perverse suggestion. briefing is This If full argument generally regarded necessary are to fair and appeal they careful review of a nonfrivolous are—there —and absolutely justification providing procedural is no fewer protections solely because a life is man’s at stake. Given the penalty, irreversible nature death it would be hard to any summary procedures think of class cases for which appropriate capital presenting would be less than cases a sub- stantial constitutional issue. capital

The difference between cases and other cases ways,” in “the basis of in differentiation law diverse Williams (footnote (1955) Georgia, omitted), v. 349 391 U. S. but today suggested, until it had never I been so far as know, safeguards required that where life is stake than fewer only liberty property where is at stake. This Court has always procedural safeguards insisted need for particularly great Long where life is stake. before the right felony cases, established the to counsel all Wainwright, (1963), recognized Gideon v. 372 335 it U. S. right capital cases, Powell v. 287 Alabama, U. S. (1932). again pro- 71-72 Time the Court has condemned capital might completely acceptable cedures cases that ordinary Bullington g., in an e. See, Missouri, case. v. 451 (1981); (1980); U. S. 430 Beck v. Alabama, 447 U. S. (1979) curiam); Georgia, (per Green v. 442 U. S. 95 Lockett (1978); Ohio, Florida, U. S. 586 Gardner 430 U. S. (1977); Woodson v. North Carolina, 428 U. S. appreciation of reflect an the fundamental These decisions fact that qualitatively penalty

“the of death is different from a long. imprisonment, however its Death, sentence of imprisonment finality, from life than a 100- differs more only year year prison from one of term differs two.” (opinion Id., Stewart, Powell, 305 and Stevens, omitted). JJ.) (footnote penalty of this difference between the death

Because basic consistently punishments, recog- has and all other corresponding in nized that there is “a difference the need for reliability appropriate that the determination death is the punishment specific Eddings in a case.” Ibid. See v. Okla- (1982) homa, 117-118 J., U. S. concur- (O’Connor, ring); supra, Alabama, Beck v. Lockett v. 637-638; Ohio, supra, (plurality opinion). at 604-605

By suggesting special summary procedures might be adopted solely capital majority cases, the turns this estab- approach suggestion lished on its head. Given that its runs contrary repeated particular to this Court’s insistence on the reliability capital expected need for cases, one would have why might conceivably appropriate some indication of it adopt procedures. suggestion such Instead, is offered explanation conclusory paragraph. without in a In the en- majority opinion only possible tire hint of rationale cryptic quotation following the Court’s statement (1895): Lambert v. Barrett, U. S. capital

“It is natural that counsel for the condemned in a lay every ground judg- case should hold of in their which, might advantage ment, tend client, to the their but justice ought the administration of not to be interfered pretexts.” with on mere ante, at 888. Quoted, quotation suggests, If, of this statement the Court’s approval summary procedures assumption rests on an appeals by prisoners generally under sentence death are

frivolous, the assumption conclusive answer is that this contrary to both law and fact. contrary

It is dealing to law because we are here with cases judge in which the federal most familiar with the case has concluded presented that a substantial constitutional claim is appeals and in agreed which appeal the court of has that the contrary is not frivolous. experience It is to fact because prisoners shows that on death row have succeeded in an ex- traordinary appeals. capital number of their Of the 34 cases Appeals decided on the merits Courts of since 1976 prisoner appealed which a from the denial of habeas relief, prisoner prevailed has in no fewer than 23 cases, or approximately 70%of the time.10 In the Fifth Circuit, of the capital prisoner appellant, cases in which the was the prisoner prevailed has in 15 cases.11 This record establishes beyond any very large proportion doubt that a of federal corpus appeals by prisoners habeas on death row are merito- though they present rious, even claims that have been unsuc- cessful in the courts, state that this Court in its discretion has decided not to review on and certiorari, that a federal district judge rejected. has

In penalty view the irreversible nature of the death and extraordinary number of death sentences that have been infirmity, found to suffer from some constitutional it would grossly improper appeals special for a court of to establish summary procedures capital only for cases. consolation today’s primary I responsibil- can find decision is that the ity selecting appropriate procedures appeals for these points lies, as the Court itself out, ante, at 892, with the appeals. courts of Cf. In re Burwell, 350 U. S. (1956) curiam). (per Notwithstanding profoundly dis- turbing today’s opinion, hopeful attitude reflected in I am judges support adoption that few circuit would ever Legal 10 SeeBrief for NAACP Fund, Defense and Inc., Educational Amicus Curiae le-6e. 11 Seeid,., at le-4e.

procedures appeal that would afford less consideration to an appeal challenging which a man’s life is at stake than to an ordinary money judgment.

HH > Adhering my penalty view the death is under all punishment prohibited by circumstances cruel and unusual Eighth Gregg Fourteenth Amendments, and see v. Geor- (1976) gia, dissenting); U. S. J., (Marshall, (1972) Georgia, Furman v. 408 U. S. 358-369 (Mar- concurring), petitioner’s J., would vacate death I shall, sentence. with whom Justice Brennan Blackmun,

Justice join dissenting. as to Parts I-IV, Justice Marshall agree I with most of what Justice Marshall has said in dissenting opinion. my his I, too, dissent, but I base conclu- evidentiary rejects sion also on factors that the Court emphasis. psychiatric testimony some The Court holds that dangerousness about defendant’s future is admissible, de- spite testimony wrong the fact that such two times out of capital three. The Court reaches this result —even in a subject it is because, said, the to cross- case— impeachment. present psy- examination In the state of knowledge, may accept chiatric this is too much for me. One money damages, per- a routine lawsuit for but when a son’s life is at stake—no matter how heinous his offense—a requirement greater reliability prevail. capi- should In a specious testimony psychiatrist, case, tal of a colored eyes impressionable jury by in the of an the inevitable untouchability specialist’s equates of a medical words, death itself.

I required To obtain a death sentence in Texas, the State is prove beyond probabil- a reasonable doubt that “there is a ity that the defendant would commit criminal acts of violence continuing society.” that would constitute a threat to Tex. 37.071(b)(2) (Vernon Code Crim. Ann., 1981). Proc. Art. As a practical matter, prediction future dangerousness was the issue only to be decided by Barefoot’s sentencing jury.1

At the sentencing hearing, State established that Bare foot had two prior convictions for drug offenses and two prior convictions for unlawful possession of firearms. None of these convictions involved acts of violence. At the guilt stage trial, for the limited purpose establishing the crime was committed order to evade police custody, see (Tex. State, S. W. 2d 875, 886-887 Crim. Barefoot App. 1980), cert. denied, U. S. 913 (1981), the State had presented evidence that Barefoot had escaped from jail New Mexico where he was held on being charges statutory rape and unlawful restraint of a minor child with intent commit sexual penetration against child’s will. The pros ecution also called several character witnesses at the sentenc from ing hearing, towns five States. Without mentioning particular examples Barefoot’s these conduct, witnesses testified that Barefoot’s reputation being peaceable and citizen law-abiding was bad in their respective communities. Last, the prosecution called Doctors Holbrook and Grigson, whose testimony extended over more than half the hear- Neither ing. had examined Barefoot or requested oppor- tunity to examine him. In the presence of the jury, over defense counsel’s objection, each was as an qualified expert psychiatrist witness. Doctor Holbrook detailed at length his training and experience as a psychiatrist, which included a position chief of psychiatric services at the Texas 1 appears It every person capital convicted of murder Texas will satisfy requirement the other sentence, relevant to Barefoot’s that “the conduct of the defendant that caused the death of the deceased was com deliberately mitted and with expectation the reasonable that the death of result,” deceased or another would Ann., Tex. Code Crim. Proc. Art. 37.071(b)(1) (Vernon 1981), capital because a requires murder conviction finding that the “intentionally defendant knowingly the death of cause[d] individual,” (Vernon 19.02(a)(1) see § Tex. Penal 1974); Code Ann. see 19.03(a). § also Department Corrections. He that he explained had previ- ously “criminal performed many evaluations,” Trial Tr. and that he took the at the subsequently post Department Corrections to observe the subjects these evaluations so that he could “be certain those opinions that had were [he] accurate at the time of trial and Id., at pretrial.” 2070. He then informed the that it was as a jury “within [his] capacity doctor psychiatry the future predict dangerousness of an individual within a reasonable medical certainty,” id., at “an (emphasis supplied), that he could give expert medical that would be within opinion reasonable psychiatric certainty as to whether or not that individual would be dan- gerous that there degree would be a probability that person would commit criminal acts of violence in the fu- ture that would constitute a continuing threat to society,” id., at 2073 (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 charged with felonies, and at least 300 charged with murder. Id., 2109. He testified that with enough information he would be a medical able to within opinion reasonable psychiatric “give certainty as to the psychological psychiatric of an makeup individual,” id., at 2110 (emphasis supplied), skill was “particular to the field of and not to psychiatry Id., at 2111. average layman.”

Each psychiatrist then was given an extended hypothetical him question asking to assume as true about Barefoot four prior convictions for nonviolent offenses, the bad reputa- tion for being law-abiding various communities, the New Mexico escape, the events surrounding murder for which he was on trial and, Doctor Grigson’s case, the New Mexico arrest. On the basis of the hypothetical question, Doctor Holbrook diagnosed Barefoot “within a reasonable psy- certainty,” chiatric] a “criminal sociopath.” Id., 2097. He testified that he knew of no treatment that could change change

this condition, and that the condition would not for “may better but become accelerated” the next few years. Finally, at Id., 2100. Doctor Holbrook testified certainty,” psychiatric that, “within reasonable there “awas probability hypothetical that the A. Barefoot in that Thomas will criminal violence in future commit acts of that would continuing society,” opin- constitute threat and that his change “society” ion if would not at issue was that within prisons society prison. Id., Texas rather than outside at 2100-2101. Grigson hypo-

Doctor then basis of that, testified diagnose question, thetical he could Barefoot “within rea- psychiatric certainty” fairly sonable as an individual with “a typical, sociopathic personality classical, Id., disorder.” at placed 2127-2128. He “most Barefoot severe cate- (on gory” sociopaths ten, a scale one to Barefoot was ten”), “above that there no stated was known cure Finally, Grigson Id., condition. at 2129. Doctor testi- society large prison fied that whether Barefoot was or in at society percent there was a “one hundred and absolute” chance that Barefoot would commit future acts of criminal continuing society. violence that would constitute a threat to (emphasis supplied). Id., at 2131 questioned On cross-examination, defense counsel psychiatrists demonstrating psychiatrists’ about studies predictions dangerousness inherently of future unreli- are many familiarity able. Doctor Holbrook indicated his with disagreed of these studies but that he con- stated with their Grigson clusions. Doctor stated that he was not familiar studies, most of these and that were their conclusions accepted by only minority group” psychiatrists— a “small “[i]t’s Psychiatric not the American Association that believes that.” at 2134. Id., “yes” jury

After hour of deliberation, the answered statutory questions, to the two Barefoot was Thomas sentenced to death.

HHrH A (APA), Association Psychiatric participat- The American curiae, case as amicus informs us that “[t]he this ing of long-term future unreliability psychiatric predictions an established fact within the now pro- dangerousness Brief for American Association as Psychiatric fession.” Brief). Amicus (APA Curiae The APA’s best estimate is that two out three future long-term violence predictions Id., 13. wrong. made The Court by psychiatrists ante, see n. 899-901, does not dispute proposition, so; it not do the evidence is and indeed could overwhelming. For the APA’s Draft of the Task Force on example, Report (1983) in the Role of Process Psychiatry Sentencing (Draft states that evidence Report) “[considerable has been accumulated now to demonstrate that by long-term predic- tion of future violence is an by psychiatrists extremely inac- Id., curate at 29. Monahan, John process.” recognized “the thinker on this issue” even the State’s leading expert witness at Barefoot’s federal habeas corpus hearing, Hearing 195, Tr. concludes that “the ‘best’ clinical research currently in existence indicates that psychiatrists and psychologists in are accurate no more than one out of three predictions behavior,” of violent even among populations of individuals who are ill mentally and have committed violence in the past. Monahan, J. The Clinical Prediction of 47- Violent Behavior (1981) deleted) (J. 49 (emphasis Monahan, Clinical Predic- id., see also tion); 6-7, 44-50. Another has found it study subclass of mem- impossible identify any offenders “whose bers have a in an greater-than-even chance of engaging again assaultive act.” Wenk, Robison, & Be Smith, Can Violence Predicted?, 18 Crime & 394 Yet 393, Delinquency another commentator observes: “In mental health general, . professionals . . are more than likely wrong right when they relevant behavior. When predict legally predict- more ing violence, are far dangerousness, suicide, they

921 Morse, to be than likely wrong right.” Crazy Behavior, An of Morals, Mental Health Analysis Law, Science: 51 (1978) 527, (Morse, S. Cal. L. Rev. 600 Analysis Mental Law). nor Health Neither the State of Texas has scientific reputable cited source single contradicting in this professionals unanimous conclusion field that psy- future long-term chiatric violence are predictions wrong often they right.2 more than The APA also APA concludes, 9-16, see Brief as do researchers that have studied the issue,3 psychiatrists no have expertise predicting long-term fixture dan simply many Among reaching other studies this conclusion are APA Task (1974) (90% Report, Aspects Force of the Violent Clinical Individual 28 art”) “[u]nfortunately (APA, ... error rate is the state of the Clinical Aspects); Morrissey, Steadman & The Statistical Prediction Violent Behavior, 263, (1981); Dix, & Human Expert Law Behavior 271-273 Testimony Capital Sentencing: Evidentiary Prediction and Constitutional Considerations, 1, (1981); Schwitzgebel, 19 Am. Crim. L. Rev. Predic Curran, Dangerousness Implications Treatment, tion of and Its in W. McGarry, Petty, Legal Medicine, A. & Psychiatry, C. Modern and Foren (1980); Steadman, sic Psychi Science 784-786 & Cocozza Prediction atry: Example Misplaced An in Experts, Confidence Probs. Soc. (American Association’s) (1978);Report 272-273 Psychological Task Psychology Force the Role System, the Criminal Justice 33 Am. Psychologist (1978); Cocozza, Psychiatry, Danger Steadman & Repetitively ousness and Offender, Violent 69 Crim. L. & Criminol J. 226; ogy 227, (1978); Steadman, Psychiatric 230 Cocozza & The Failure of Dangerousness: Predictions of Convincing Evidence, Rutgers Clear 29 and 1084, (1976); L. Diamond, Psychiatric Rev. 1101 Danger of Prediction ousness, 439, 123 Pa. L. (1974); Litwack, Psychi U. Rev. 451-452 Ennis & atry Presumption Expertise: Courtroom, Flipping of Coins (1974). 693, 62 Calif. L. Rev. early making 711-716 A relatively study point Rome, is Dangerous Offender, Identification of the 42 F. R. D. 185 3See, g., APA, e. Aspects 28; Ziskin, Psychi Clinical 1 Coping J. with (3d Psychological atric and Testimony 11, 1981); 19 ed. & Steadman supra Morrissey, 2, 264; n. Morse, Analysis Law, at of Mental Health 51 Rev., L. Steadman, supra 599-600, S. Cal. 619-622; 2, at Cocozza & n. Probs., 274-275; Soc. at supra n. Steadman, 2, Rutgers Cocozza & L. Rev., at 1099-1100. to can with access relevant statistics A layman gerousness. better; training psychiatric as and possibly do at least well can be factors that validly employed to the relevant on err consistently and psychiatrists predictions, make such while Doctors Thus, violence.4 of overpredicting the side by by State were presented and Holbrook Grigson future dangerous at experts predicting self-proclamation they makes clear that crystal literature the scientific ness, claims that Despite they their had whatever. expertise no future rea behavior “within Barefoot’s predict were able or to “one hundred percent certainty,” sonable psychiatric no more than a one there was fact certainty, and absolute” correct.5 they chance that were three APA, 25; Monahan, 14-16; Aspects J. Clinical APA Brief Clinical See Rev., Analysis Law, 51 L. 86; Morse, of Mental Health S. Prediction Cal. Cocozza, supra n. 2, 598-600; 69 Crim. L. Criminol at Steadman & J. & supra n. 229-230; Diamond, 2, 447. ogy, at at actually may predictors less of future psychiatrists That be accurate supra laymen, Litwack, 2, 734-735, may due than Ennis & n. at be violence personal predicting arising from fear of biases in favor violence individual, see being responsible for the erroneous release of a violent 86; Monahan, 13, 22-25, Morse, Analysis Mental J. Clinical Prediction Rev., Law, may a tend- Health 51 S. L. at 598-600. also be due to Cal. It ency experiences have generalize past from that offenders bases violence, Shah, A empirical relationship Dangerousness: no to future see Paradigm Exploring American Psychology, Some Issues Law and (Mar. Psychologist 1978), present tendency may 229-230 clearly in Grigson’s testimony. prediction and Holbrook’s Statistical 82; prediction, than Monahan, more reliable clinical Prediction J. Clinical Morrissey, supra & n. statis- prediction Steadman at based on 272—and Law, may Morse, tics anyone, Analysis alone be done Health of Mental Rev., 599-600; 51 S. L. at APA Cal. Brief 15-16. id,., Court, App. 13, Like Appeals, the District and the justify Court seeks to on the psychiatric admission of “ ground majority experts ‘[t]he there psychiatric agree that where pattern repetitive conduct, accuracy psy is a assaultive and violent Ante, predictions dangerousness dramatically chiatric of future rises.’” 902, quoting correctly App. 13. The District Court found that there

B It of impossible admission square purportedly but scientific baseless actually the Constitu- paramount tion’s concern for reliability capital sentencing.6 empirical supporting evidence common-sense correlation between past repetitive violence; violence and future the APA states that “[t]he any most that can history past be said about individual is that a of violence probability increases the that future violence Report will occur.” Draft supplied). psychiatrists (emphasis special But have no insights to add to fact, single and a provide this actuarial violent crime cannot a basis for prediction APA, a reliable of future Aspects 23-24; violence. Clinical see Monahan, 71-72; Cocozza, J. Clinical Prediction Steadman & supra 2,n. Criminology, L. J. Crim. & at 229-230.

The lower and sought courts this Court have solace in this statistical cor- acknowledging relation without its obvious irrelevance to the facts of this case. District Court did not find that the any State demonstrated pattern repetitive of assault and violent conduct Recognizing Barefoot. importance giving credibility experts’ of some specious prognosti- its cations, the now the “reputation” testimony State claims that adduced at sentencing hearing only “can repeated, widespread evince acts of crimi- Respondent nal violence.” Brief for is simply 47. This absurd. There testimony worthy nowas of credence that Barefoot had committed acts of apart violence the crime being tried; from for which he was there was testi- mony only reputation peaceable of a bad law-abiding for conduct. In light of the fact each of prior Barefoot’s convictions was a non- offense, testimony obviously violent such could have been on antisocial based psychiatrist but nonviolent jury behavior. Neither informed the that he reputation testimony considered this history repeated to show acts Moreover, psychiatrists violence. if jury rely or the were to on such vague hearsay testimony in “pattern repetitive order show a assault conduct,” and violent Barefoot’s death sentence would rest on information might “bear closer average no relation to fact rumor or item than gossip,” Florida, (1977), Gardner v. 430 U. S. and should be invalid for highly that reason alone. A death sentence cannot rest on dubi- predictions secretly hearsay ous based pure on factual foundation of conjecture. See ibid. 6Although I misleading any pre believe that the psychiatric nature capital diction future process violence violates due when introduced sentencing hearing, admitting predictions in this were case—which examining particularly made without even the defendant —was indefensi- 924 if the jury in only Texas punishment is a permissible

Death there is a probability doubt a reasonable beyond finds criminal violence. acts of future commit will the defendant of future predictions psychiatric unreliable The admission medi- of “reasonable claims unabashed with violence, offered creates reliability, professional or “absolute” certainty” cal imposed sentences will be that death danger an intolerable erroneously. 428 Carolina, North U. S. v. in Woodson

The plurality (1976), 305 stated: from life imprison- differs more finality, its “Death, differs from one of only term prison a 100-year ment than difference, of that qualitative Because or two. a year reli- in the need for difference a corresponding there is that death is the appropriate in the determination ability case.” in a specific punishment today, yet fit to mention this principle not see

The Court does Amendment as our any Eighth as established firmly it is v. Zant ago, Stephens, two weeks jurisprudence. Only described the need (1983), 462 884 U. S. as one of the in the of the death reliability penalty application words, following in-depth exami- prediction In the APA’s if even an ble. inherently unreliable, nation is testifying practice

“there the more reason to shun the without is all responding to having say, examined the defendant at . . . all. Needless testifying in hypotheticals just fraught possibility of error as with the any way personally examined. other about an individual whom one has not Although yet rejected practice, psychiatrists the courts have not Report should.” Draft 32-33. testimony only legal standards; APA has de-

Such is offensive not psychiatrist professional opinion “[i]t clared that unethical for a to offer a Principles unless he/she has of Medical conducted an examination.” The Ethics, 7(3), p. § Especially Applicable Psychiatry With Annotations (1981); Opinions Principles see of Medical Ethics Committee on the Ethics, Especially p. Applicable Psychiatry, With Annotations today hearing capital sentencing The Court sanctions admission in “expert” medical it violates unprofessional so unreliable and the canons of medical ethics.

basic “themes . . . reiterated our opinions discussing procedures by the Constitution in required capital sentencing Eddings Oklahoma, determinations.” See v. S. 104, U. (1982) 110-112 punishment must (capital be “imposed fairly, all”); id., reasonable consistency, or 118- Beck Alabama, J., 119 (O’Connor, concurring); U. S. Georgia, Green n. 13 637-38, (1980); 442 U. S. Lockett v. Ohio, 95, (1979); 97 (1978) 438 U. 586, S. 604 Gardner v. Florida, 430 U. (plurality opinion); 349, S. 359 id., (1977) at (plurality 363-364 opinion); J., concur (White, ring State judgment). evidence rules it notwithstanding, well that, is established because the process truth-seeking may skewed, unfairly process due even may be violated in a criminal noncapital by case the exclusion of evidence pro Mississippi, Chambers innocence, bative of see v. 410 U. S. (1973), 284 by admission of certain categories of unreli able and prejudicial evidence, see Watkins v. Sowders, 449 (1981) (“[i]t U. S. 347 341, reliability identification Foster evidence that its primarily determines admissibility”); California, (1969).7 v. 394 U. 440 S. The reliability and of evidence admissibility by considered a capital sentencing is obviously factfinder of still greater constitutional concern. Georgia, Cf. Green v. Flor Gardner v. 442 U. 95 (1979); S. ida, 430 U. S. 349

The danger of an death unreliable sentence created cannot be brushed on the testimony ground aside that “ it all ‘jury have before relevant information possible [must] about it deter- individual defendant whose fate must Ante, Texas, Jurek v. mine.”’ 897, at U. S. quoting (1976) 262, 276 Al- (joint opinion announcing the judgment). though committed a “wide evidence” at allowing scope Stephens, Zant v. U. at presentence hearings, S., 886, (1953) York, Cf. Stein New 156, (prior application v. 346 U. S. States, vitiate[d] Fifth a confession Amendment to the “reliance on coerced persuasiveness [state] conviction because such confession combines apparent judicial experience to be illu conclusiveness with what shows evidence”). sory deceptive must be given that “consideration recognized has

the Court information on of the the quantity, well as to the quality, rely.” Gardner v. [authority] may sentencing which this Court Florida, Thus, very recently, at S., 359. 430 U. of evi- scope on the permissible limitation a crucial reaffirmed “ . ‘[sjo . . evidence introduced do[es] as the long dence: prejudice not to restric- impose it is defendant, preferable Gregg Stephens, S., Zant 462 U. quoting tions.’” Georgia, (1976) (emphasis sup- 203-204 428 U. S. the obviously prejudicial all admits but The Court plied). Holbrook; Grigson Doctors testimony impact to be likely claims were more their absolute granting ante, 7, 901, n. the Court states right, than wrong the psychiatric is no doubt that “[t]here would be sentenced petitioner the likelihood that increased death,” ante, at 905. Indeed, widely unreliable scientific evidence acknowl- to be The reasons this are manifest. edged prejudicial. of is to potential “The scientific evidence its major danger the an aura of scientific shroud infallibility may mislead jury; the evidence and thus lead the to it without criti- jury accept Novel scrutiny.” Giannelli, Admissibility cal of Scien- Frye v. States, United Later, tific Evidence: a Half-Century (1980) 80 Ev- 1197, Colum. L. Rev. 1237 Scientific (Giannelli, idence).8 the of public exaggerated opinion Where holds an

8 dispute can proposition: There be no about this obvious impresses lay jurors. They “Scientific evidence it more tend to assume is objective testimony. lay juror accurate than A thinks of scientific who capable evidence amazingly precise visualizes instruments of measure- ment, findings by dispassionate short, arrived at In scientific tests. typical lay the mind of juror, the special a scientific witness a aura of has credibility.” Imwinkelried, Proponents Evidence Law and Tactics for (E. Evidence, of Scientific Expert 33, Scientific and Evidence 37 Imwin- 1981). kelried ed. 22 Wright Graham, 5217, See C. & K. § Federal Practice and Procedure (1978) (“Scientific... p. 295 potential evidence has great misleading jury. probative The low jargon worth can in the often be concealed

927 accuracy testimony, prejudice likely of scientific is to be indelible. v. Baller, See United States 519 F. 2d 463, 466 (1975). (CA4), 423 denied, cert. U. S. 1019 There little question psychiatrists perceived by public as having special expertise predict dangerousness, per ception psychiatrists’ study based on of mental disease. See Psychiatry (1980); Robitscher, J. The Powers of 187-188 supra & n. Steadman, 2, Cocozza 25 Soc. at Probs., 273; Analysis of 51 Morse, Law, Mental Health L. Rev., S. Cal. perception 533-536. It that the State Barefoot’s sought exploit. case Yet mental disease is not correlated violence, Monahan, see J. Clinical Prediction 77-82; supra 2, Steadman & n. 69 J. Cocozza, Crim. L. Crimi & nology, expertise at 230, and the stark fact is that no such psychiatrists, Moreover, exists. it is said, sometimes at tempt perpetuate expertise, this illusion of Cocozza & supra Steadman, n. 252, Probs., 274, Soc. and Doctors Grigson purported predict and Holbrook—who to be able to dangerousness psychiatric future “within reasonable cer tainty,” absolutely present extremely disturbing exam- — .”). expert. danger some . This created use scientific evidence fre quently recognized by has been Speaking specifically psy courts. predictions dangerousness chiatric issue, future similar to those at one District Court has observed that prediction proffered by when such a “is bearing ‘Doctor,’ witness impact greater the title of jury its is much if Estelle, masquerading than it were not it is not.” White something (SD 1982). Supp. 851, 554 F. Tex. People v. Murtishaw: See Note — Applying the Frye Psychiatric Test Dangerousness Predictions of Capital Cases, States 1069, 1076-1077 Calif. L. Rev. United In Addison, App. (1974), U. S. D. C. F. 2d court observed may mystic that scientific posture evidence “assume a infallibility eyes in jury laymen.” the of a of Another court has noted that likely scientific “is evidence to be shrouded with an infallibil aura near ity, akin to the Alexander, ancient of Delphi.” United States oracle v. 526 (CA8 1975). 161, F. 2d Amaral, 168 See United States v. 1148, 488 F. 2d (CA9 1973); (Md. 1152 Wilson, United States v. Supp. 361 F. 513 1973); People King, App. 437, 461, 266 Rptr. Cal. 2d 72 493 Cal. 928 tendency. problem

pies The not uncommon. See Rev., L. 1238. 80 Colum. at Evidence, Scientific Giannelli, only in reasonable, the Court’s concern as is Furthermore, scope encouraging has a wide evidence introduction of provided accurate information is that been to ensure joint authority opinion sentencing without restriction. explained Gregg jury’s announcing judgment need terms: evidence these relevant daily experienced judge, trial who faces the diffi- “If an imposing sentences, a vital for ac- task of has need cult impose able to a information ... to be rational curate typical case, criminal then accurate sentence in the indispensable sentencing prerequisite information is an a a determination whether defendant shall to reasoned may by jury people die who never have live or before sentencing (empha- S., U. made decision.” supplied). sis (Court jury post, at Ramos, See holds California permissible sentencing ground hearing

instruction information”) jury (emphasis “gives supplied). it accurate suggested I am never aware, So far as has any providing deceptive there is interest and inaccurate jury. to the Psychiatric predictions dangerousness of future are not wrong probative accurate; three, value, two times out of their any possible they might and therefore make to contribution virtually the ascertainment of nonexistent. See truth, supran. Rutgers Cocozza& L. Steadman, Rev., at (psychiatric testimony sufficiently support not reliable to finding any dangerous that individual will be under standard proof). given psychiatrist’s prediction Indeed, that an dangerous, likely individual will be it is more than not that the defendant It will commit further violence. is difficult predictions to understand how admission of such can justified advancing particularly for truth, search light clearly prejudicial of their effect.

Thus, remarkable Court’s observation that “[n]either nor the petitioner suggests that psychiatrists [APA] always wrong only most respect future dangerousness, time,” ante, at 901 (emphasis misses the supplied), and its point claim that this no completely, was testimony more than “other problematic relevant evidence against any ante, at case,” defendant a criminal 905-906, simply incredible. Surely, Court’s commitment that ensuring death sentences are imposed and reliably reasonably requires and nonprobative highly prejudicial on the testimony ultimate of life or death be question excluded from capital sentencing hearing.

Ill A its Despite at recognition issue was probably wrong certainly prejudicial, Court holds this testimony admissible because the Court “unconvinced . . . that the adversary cannot process be trusted to sort out the reliable from the unreliable evidence and about opinion future dangerousness.” Ante, at 901; ante, 899-901, see at n. can 7. One wonder how only juries are valid separate from invalid expert opinions when the themselves “experts” are so obviously unable to do Indeed, so. the evidence that juries are suggests not effective at the valid- assessing of scientific ity evidence. Giannelli, Evidence, Scientific Colum. L. Rev., 1239-1240, n. 319.

There can be no question that predictions psychiatric future violence will have an undue on the ver- effect ultimate dict. Even tend judges to accept recommen- psychiatrists’ dations about a defendant’s with little dangerousness regard cross-examination other & Cocozza Stead- testimony. supra man, (in n. 2, 25 Soc. involun- Probs., at making tary commitment of future decisions, psychiatric predictions dangerousness Morse, in 86.7% accepted cases); Analy- see sis Mental Law, Rev., Health 51 S. L. n. Cal. 603. There is every reason to believe that inexperienced jurors capable “separating] will be still less the wheat despite assumption the blithe chaff,” from the Court’s contrary, n. the at 7. The American Bar Asso- ante, repeatedly sentencing juries that ciation has warned are particularly dealing relating incapable of with information “the commit crimes,” likelihood that the defendant will other predictive judgments. Project ABA and similar on Stand- Sentencing ards for Alternatives Pro- Justice, Criminal §1.1(b), Commentary, pp. 1968); (App. cedures 46-47 Draft Commentary, ABA 18-1.1, Standards for Criminal Justice (2d 1980). pp. Relying 18-16, 18-24 to 18-25 ed. on the joint opinion announcing judgment conclusion, ABA’s the Gregg Georgia, recognized in S., 428 U. at 192, that jury any, “[s]ince pre- little, the members of a will have had if experience sentencing, they unlikely vious are to be skilled dealing they given.” with the information But the praise jury’s ability case, its haste to apparently forgets find the truth, this well-known and worri- shortcoming. some suggest petitioner’s position

As if to that that unreliable expert testimony should be excluded is unheard of in the law, proposition the Court relies on the that the rules of evidence generally “anticipate unprivileged that relevant, evidence weight should be admitted and its factfinder, left to the who contrary would have the benefit of cross-examination and evi- opposing party.” dence Ante, at 898. But the Court simply ignores despite availability hornbook that, law “opinion cross-examination and rebuttal witnesses, evidence is not admissible if the court believes that the state of pertinent knowledge permit art or scientific does not a ” opinion Cleary, reasonable to be asserted. E. McCormickon (2d 1972). § p. Evidence ed. Because it is feared that jury probative polygraph will overestimate its value, evi- example, invariably dence, for almost is excluded from trials despite experi- the fact that, at a conservative an estimate, polygraph deception enced examiner can detect truth or correctly percent about 80to 90 ofthe time. Ennis &Litwack,

supra n. In 2, at 736.9 no area is purportedly “expert” testi- mony admitted for consideration where it jury’s cannot it be demonstrated that is correct more often than not. “It is be considered inconceivable could an judgment ‘expert’ it is than when less accurate judgment flip coin.” Id., The risk jury incapable 737. will be of sepa- rating myth “scientific” from deemed reality unacceptably high.10

B Constitution’s mandate with the reliability, stakes life death, reliance on precludes cross-examination and the rebuttal opportunity present witnesses as anti- dote for this distortion of the truth-finding process. Cross- examination is to reveal unlikely fatuousness of psyehi- 9 purportedly proof See, g., e. Other scientific has met a similar fate. (CA9 1978) Kilgus, United States 508, v. (expert testimony 571 F. 2d 510 identifying through looking aircraft system” “forward infrared inadmissi generally accepted ble because unreliable and not in scientific field which Brown, (CA6 1977) United States v. belongs); it 541, F. 2d 557 558-559 (expert identification on microprobic analysis based “ion of human hair” not admissible insufficiently accurate, because reliable accepted and not Addison, United States field); 203, its App. C., 162 U. S. D. at 498 F. 2d, (expert 745 spectrogram at identification based on voice inadmissible Hearst, reliable); United States because not shown 893, Supp. F. (ND (identification 1976) Cal. testimony expert in “psycholinguistics” in reliable), admissible demonstrably because not grounds, aff’d other on (CA9 1977). F. 2d 10 TheCourt observes that this well-established rule is a matter evi law, Ante, dence not constitutional principle law. at n. 6. But the capital requiring that sentencing procedures verdicts, ensure reliable see swpra, 923-926, at which ignores, principle and the that due process is violated types seemingly the introduction of certain conclu sive, actually unreliable, but supra, evidence, see at and n. which ignores, the Court also long standing. constitutional The doctrines of teaching of the evidence doctrine is that unreliable scientific unjustifiable verdict, creates serious and risk of an erroneous adversary process its best does not remove this risk. We should not merely by dismiss this lesson labeling nonconstitutional; the doctrine its relevance to the question constitutional before the Court could not be more certain. predictions predictions rest, often was such

atric because categories psychiatric clinical and intuitive here, the case judgments susceptible and rebuttal. cross-examination Psychiatric categories supra have little or 44. 2, n. Dix, relationship use often violence, and their no demonstrated unimpressive or intuitive bases statistical obscures the prediction. 31; Prediction Cocozza & Monahan, Clinical J. supra The APA Probs., at 274.11 2,n. 25 Soc. Steadman, diagnosis employed by particularly of the condemns the use sociopathy: Grigson that of case, and Holbrook this Doctors reigns. psychiatrist who “In confusion this area judge jury believing or into can mislead not careful major simply person on the mental disease that a has description prior criminal behavior. Or a basis of psychiatrist believing into

can mislead the court basis of a is devoid of conscience on the an individual description profession alone. . . . The of criminal acts inflicting responsibility psychiatry has a to avoid upon spare defendant the confusion the courts and to uncertainty may . . our about harm that result. . Given implications finding, diagnosis of socio- support pathy justify . . . should not be used to certainty predictions of future conduct. There is no Report this area.” Draft 30. adversary extremely unlikely process will

It is that the through superior knowledge. cut the facade of Chief long ago observed: Justice study, only statistically

11 In related to example, one for the factor psychiatrists in the predicted subject whether that a would be violent subject charged. Yet the type future was the of crime with which the was justify pre their charge psychiatrists defendant’s was mentioned only frequently in cited dictions one third of the cases. The criterion most supra Steadman, n. impaired thinking.” was “delusional or Cocozza & Rutgers Rev., L. at 1096. adversary system very compli- of the . . .

“The nature opinion particularly evidence, scientific cates the use of system partisan psychiatry. in This con- the field of counterattack, and at its is not tention, of attack best developing portrait ideally pro- an accurate suited to especially personality, in file of the human the area of Although under abnormal behavior. ideal conditions system develop adversary jury for can most necessary adequate fact material for an decision, such rarely conditions in the in are achieved courtrooms country. highly ideal conditions would These include judge experienced highly skilled and trial skilled lawyers all case, on both sides of the of whom in addition being techniques well-trained the law and advocacy sophisticated would be of medi- matters psychiatry, psychology. cine, It is far rare too legal all three of the actors in cast meet these stand- Psychiatrists, Lawyers, Burger, ards.” Courts, and the (June 1964). 28 Fed. Prob.

Another has commentator noted:

“Competent jury may cross-examination and instructions partial they complete. antidotes . . . , but cannot be Many truly of the cases are not too few adversarial; attorneys cross-examining psychiatrists, are skilled at laypersons overweigh testimony experts, and, any promotes experts case, unrestricted use of incor- questions primarily rect view that the scientific. difficulty major is, There however, no antidote ‘experts’ they simply with mental health are —that experts beyond expertise, .... In realms their true special law has little their them; learn from too often prejudicial.” Analysis . is . . Morse, Mental Health Law, 51 L. Rev., S. Cal. at 626. supra 2, 44-45; n. at Dix, also 535-536. See id., at See supra supra Note, 8,n. 745; n. at2, Litwack, Ennis & The Powers of Robitscher, 1079-1080;J. Rev., L. at Calif. (1980). Psychiatry 202-203 psychiatric presentation on behalf witnesses

Nor is the prejudicial likely of mis- taint remove to of the defense reputa- psychiatrists.12 testimony by prosecution leading No predict expert confidence that the with be able ble would will be able best, witness violent; not be defendant will dangerousness predictions opinion give all his jury presented Consequently, the will not be unreliable. opposing experts views on with battle of the traditional with expert question. choice between an Given a the ultimate certainty predict says that the defend- that he can who society, prison kill or free will confined ant, whether merely prediction says again, expert that no such who and an jury charged by mak- law with members made, can be opt expert surely tempted prediction ing for the will be duty, help performing their and he them who claims can put consequences predicts if the defendant is not dire who to death.13 psychi- presentation of defense best, even at

Moreover, hearing into a battle atrists will convert the death sentence profes thing, although most of the mental health For one members made, lawyers may predictions defense sions believe that such cannot be locating witnesses. experience significant difficulties in effective rebuttal Jury Davis, Capital Sentencing Texas Procedures: The Role Expert, Criminology Restraining Hand of the 69 J. Crim. L. & that, reasoning suggests were a de presume I the Court’s reasons, unable, he to obtain fendant to show that was for financial other might found. adequate expert, a constitutional violation rebuttal skep “Although jurors may mitigating psychiatric evidence with treat ticism, they may demonstrating aggravation. psychiatric credit evidence may crime, they Especially jurors’ by a sensibilities are offended when sentence.” upon dangerousness justify seize an enhanced evidence supra n. ex Dix, Thus, danger jury deference to n. 215. Expert testi pert opinions particularly penalty acute in cases. death emotionally mony may permit juries of this sort to avoid difficult

935 experts, Eighth re- with the Amendment’s well-established quirement individually sentencing of focused a certain loser. jury’s inevitably turn attention will from an assessment propriety sentencing to death the defendant before resolving dispute capabilities it to a scientific about the psychiatrists predict In future violence. such an atmo- sphere, every jury may reason to believe that the there responsibility distracted from its constitutional consider “particularized mitigating see v. factors,” Jurek 428 Texas, passing dangerous- in S., 272, U. at on the defendant’s future supra n. 310. Davis, ness. See opinion plausible in One searches the Court’s vain for a justification tolerating creation of State’s this risk Appeals of an erroneous death verdict. As one Court of has observed: laboratory.

“A courtroom is not a research The fate of hang ability defendant. . . should on his to success- fully rebut scientific evidence which bears an ‘aura special reliability although, and in trustworthiness,’ real- ity testifying unproved the witness is on the basis anof hypothesis gain yet general acceptance . . . which has field.” its United States F. Brown, v. 2d (CA6 1977).

Ultimately, psychia- when the Court full knows well that predictions dangerousness specious, trists’ can there imposing pain be no excuse for on of his defendant, Id., draining personal concerning just punishment. decisions rational and Grigson 46. Doctor himself superfluousness has noted and the both misleading effect of testimony: his “ T you think away could do psychiatrist cases. these Just take any street, man off the guy’s done, show him what the most of these things are so say things clearcut he would I the same I But think the do. jurors psychiatrist feel a little says somebody sup- better when that’s it — ” posed they to know Bloom, Shrinks, more than know.’ Killers Texas 1978) Monthly (July (quoting Grigson). Doctor jury laymen of convincing burden heavy life, fraud.14

IV claiming psychiatric wrong is simply The Court necessarily dangerousness future testimony respecting Texas, of Jurek (1976), 428 U. S. 262 light admissible Smith, Estelle recog- As the Court 451 U. S. Ante, at 897. nizes, Jurek lay testimony.” “only involved “there was no suggestion by that it is not Thus, surprising of doctors would be inadmissi- testimony that the the Court the Jurek Court ibid., irrelevant that it is simply and ble,” Estelle testimony, the use of such see did not “disapproval” Smith, S., 451 U. at 473. 14 excluding psychiatric asserting that of the mark The is far wide sentencing capital proceedings dangerousness from predictions of future predic other contexts in which immediately question into those “would call Ante, constantly at 898. are made.” Short-term tions of future behavior violence, purpose emergency commitment for the predictions of future long-term predictions. treatment, considerably more accurate than are or 7; Monahan, the Emer 12, n. Prediction Research and APA Brief See Mentally Ill A Reconsidera Dangerous Persons: gency Commitment of (1978); Monahan, tion, Psychiatry 198 J. Clinical Prediction Am. J. 59-60; Schwitzgebel, supra n. psychi In at 786. other contexts where made, moreover, subject dangerousness are predictions of future atric convicted, death, pre criminally put much less as a result of will not be may to the defendant The risk of error therefore be shifted dictive error. (1979). Texas, Addington 441 U. 423-430 to some extent. See S. APA, proceedings on determina discussing The civil commitment based light unreliability psychi dangerousness, states that tions of “[cjlose willingness monitoring, frequent follow-up, and a predictions, atric dispositions recommendations and change one’s mind about treatment only without, legal system is the persons, whether within the for violent psychiatrist play helpful in these acceptable practice if the is to role APA, Aspects (emphasis dangerousness.” assessments of Clinical “follow-up”or “moni supplied). capital In a case there will be no chance for brings justice delayed, toring.” subsequent change A of mind not but despair Slobogin, error. Bonnie The Role of Mental of irreversible See & Spec for Informed Health Professionals in the Criminal Process: The Case ulation, L. Rev. 442-446 Va.

In Smith, at psychiatric testimony issue was given by same Doctor who confronts us Grigson this and case, his disturbingly conclusions were similar to ren- those he id,., dered here. 459-460. The APA, See appearing amicus curiae, argued that all psychiatric predictions of future should be excluded from dangerousness sentenc- capital not ing proceedings. issue, Court did reach this because it found Smith’s death sentence invalid narrower grounds: Doctor had violated Smith’s Fifth Grigson’s Id., Sixth Amendment at 473. rights. Contrary to the assertion in this case, ante, 899, Smith Court’s inexplicable not the APA’s certainly reject did position. Rather, in Jurek Court made clear that “the holding was guided by that recognition inquiry dangerousness] [into mandated by Texas law does resort require medical experts.” added). Jurek Smith S.,U. at 473 If (emphasis held of future psychiatric predictions dangerousness in a admissible capital sentencing proceeding as the Court claims, would have been guiding recognition irrelevant. The Court also errs in suggesting exclusion of psychiatrists’ predictions future dangerousness would be of Jurek. Jurek to contrary logic merely upheld Texas’ substantive decision to condition the death sentence upon proof of a probability that the defendant commit will criminal acts of violence in the future. Whether the evidence by offered the prosecution to that prove is probability so unreliable as to violate a defendant’s capital rights to due process is different entirely matter, one of fair raising only questions procedure.15 Jurek’s conclusion that may impose Texas 15The Court’s penalty focus the death primarily cases been on has ensuring procedure: a fair ensuring “In penalty that the arbitrarily capri- death is not meted out or ciously, the principal Court’s by concern been 'procedure has more with the imposes which the State the death sentence than with substantive fac- lays jury death, tors the State before the imposing as a basis for once it has been determined that the defendant category persons falls within the eli- probably penalty capital will who com defendants death on way establishes violence no that mit acts of criminal by jury misleading may prosecution is so that this convince patently evidence. unreliable holding the Texas death statute is Moreover, Jurek’s ineluctably vague impermissibly to con- not lead does not testimony psychiatric makes is admissible. It clusion that predictions psychiatric of future violence to exclude sense testimony, admitting lay 896-897, see at because ante, while appear psychiatric predictions come from trained mental special expertise. purport professionals, to have who health groundlessness predic- of these In total scientific view the fatally misleading. psychiatric See White tions, testimony, Supp., Lay frankly F. at 858. Estelle, factors with demonstrated correlations based statistical threat of behavior, not raise substantial violent would capricious sentencing decisions, inimical to the unreliable and cases; in our and such constitutional standards established any psychiatrist predictions as make. accurate could very I Jurek, it, as understood was that Indeed, basis laymen judgments lay on the basis of such can be made testimony. duty proves

Our constitutional ensure that the State dangerousness, if all, manner, future a reliable one “any impose be, ensures that decision to the death sentence appear caprice be, on reason or emo- based rather than tion.” Florida, S., Gardner at 358. Texas’ choice U. loading factfinding justify factors substantive does against process through presentation the defendant testimony. what false is, bottom,

V petitioner’s I sentence, would vacate remand death proceedings further consistent with these views. Ramos, post,

gible penalty.” (empha- for the death at 999 California original). sis

Case Details

Case Name: Barefoot v. Estelle

Court Name: Supreme Court of the United States

Date Published: Jul 6, 1983

Citation: 463 U.S. 880

Docket Number: 82-6080

Court Abbreviation: SCOTUS