NINTH CIRCUIT CAPITAL PUNISHMENT HANDBOOK - 2006
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Chapter 4: Capital Punishment Handbook: Sentencing Phase Issues

        4.2  Fifth and Sixth Amendment Restrictions on Use of Psychiatric Examinations at Sentencing
               4.2  Testimony Of Psychiatric Examinations Performed Without Miranda Warnings
                       4.2.1  Harmless Error
                       4.2.2  Retroactivity Of Estelle v. Smith
                       4.2.3  Psychiatric Testimony On Future Dangerousness

In Estelle v. Smith, 451 U.S. 454 (1981), the Supreme Court held that the state may not compel a defendant to submit to a psychiatric examination for sentencing purposes. The Court held that Miranda v. Arizona, 384 U.S. 436 (1966) applies to any examination of a defendant performed for the purpose of obtaining evidence to be used at sentencing. A psychiatric interview conducted without proper Miranda warnings or without notice to counsel violates the Fifth Amendment privilege against self incrimination and the Sixth Amendment right to counsel, respectively, and is inadmissible at sentencing.

The Smith Court, acknowledging the state’s interest in ensuring a defendant’s mental competency, held that a defendant does not have a right to refuse to submit to a psychiatric examination to determine his or her competency to stand trial. However, the state must limit its use of the elicited testimony to that issue only.

In Smith, the Supreme Court established that the Fifth Amendment privilege against self-incrimination applies to capital proceedings. The Court’s holding regarding the use of psychiatric testimony is limited to those defendants “who neither initiate . . . a psychiatric evaluation nor attempt . . . to introduce any psychiatric evidence.” In a noncapital case, Buchanan v. Kentucky, 483 U.S. 402 (1987), the Court reasoned that where a defendant requests a psychiatric examination or presents his or her own psychiatric evidence, then the prosecution should at least be allowed to rebut this evidence with evidence from the psychiatric examinations requested by the defendant. Thus, the Buchanan Court held that a defendant waives his or her Fifth Amendment privilege against self-incrimination by raising a mental status defense. Following this logic, some circuits have held that raising an insanity defense constitutes a waiver of a defendant’s Fifth Amendment right with regard to psychiatric testimony. In the capital case of Powell v. Texas, 492 U.S. 680 (1989), the Court ruled that a Fifth Amendment waiver due to the insanity defense does not also constitute a waiver of the Sixth Amendment right to counsel.

In Penry v. Johnson, 532 U.S. 782 (2001), the Court limited Estelle to its narrow facts and denied relief under 28 USC 2254(d). The Court noted the distinguishing facts: (1) Penry made his mental status an issue in both his prior case and the death case; (2) Penry’s counsel requested the competency evaluation in the earlier case; (3) the testimony elicited at Penry’s sentencing trial was presented in cross examination through Penry’s own witness; and (4) Penry had not committed the capital murder when he underwent the competency-determination interview so future dangerousness was not an issue.

A defendant is protected by the Sixth Amendment right to counsel when the psychiatric exam takes place after formal adversary proceedings have begun. Thus, under Smith, a defendant must also validly waive his or her right to counsel before a psychiatric examination or testimony regarding that examination is admissible at sentencing.

Penry v. Johnson, 532 U.S. 782 (2001) (holding Texas court did not err in distinguishing Estelle–where, on state’s cross-examination and over defense objection, psychiatrist recited from report of another psychiatrist who evaluated defendant for competency to stand trial on an earlier unrelated charge; finding Texas court’s decision not “contrary to” or an “unreasonable application of” Supreme Court law within meaning of 28 USC 2254(d), because the Court never extended Estelle’s Fifth Amendment holding beyond its particular facts; also stating that even if the testimony was admitted contrary to Estelle, error probably harmless under Brecht).

Powell v. Texas, 492 U.S. 680 (1989) (applying Satterwhite to reverse death sentence on Sixth Amendment grounds where psychiatric testimony re: future dangerousness admitted at sentencing in violation of Estelle v. Smith; waiver of Fifth Amendment rights by raising insanity defense does not constitute waiver of Sixth). 

Welsh S. White, The Psychiatric Examination and the Fifth Amendment Privilege in Capital Cases, 74 J. Crim. L. & Criminology 943 (1983) (analyzing Fifth Amendment issues raised when a defendant presents expert psychiatric testimony in support of mitigating circumstances at sentencing).

In Satterwhite v. Texas, 486 U.S. 249 (1988), the Supreme Court held that the harmless error standard applies to the review of Estelle v. Smith violations.

Satterwhite v. Texas, 486 U.S. 249 (1988) (holding harmless error standard applies in capital cases to admission of testimony in violation of Sixth Amendment right set out in Estelle v. Smith; in this case, error not harmless because impossible to say beyond reasonable doubt that expert testimony re: future dangerousness did not influence sentencing jury).

Alvord v. Wainwright, 725 F.2d 1282 (11th Cir.) (holding, following Battie, that Smith applies retroactively), cert. denied, 469 U.S. 956 (1984).

White v. Estelle, 720 F.2d 415, 417 (5th Cir. 1983) (following Battie in applying Estelle v. Smith retroactively).

Battie v. Estelle, 655 F.2d 692, 696-99 (5th Cir. 1981) (holding Smith applies retroactively).

In Barefoot v. Estelle, 463 U.S. 880 (1983), the Supreme Court rejected the argument that psychiatric testimony regarding future dangerousness is too unreliable. The Court held instead that the state may introduce psychiatric evidence of a defendant’s future dangerousness in capital sentencing proceedings. The psychiatric evidence does not have to be based on personal examinations of defendant, but, if it is, the state must give Miranda warnings to the defendant or notice to defendant’s counsel pursuant to Estelle v. Smith. The evidence may also be responses to hypothetical questions given without the benefit of an examination. The answers to hypothetical questions may not, however, “be influenced by” or “derive from” a psychological examination conducted without the proper warnings and waivers. 

When the state intends to introduce psychiatric evidence on future dangerousness, the defendant has a due process right under Ake v. Oklahoma, 470 U.S. 68 (1985), to access to psychiatric assistance in the preparation of his or her defense. Ake v. Oklahoma, 470 U.S. 68 (1985).

Ake v. Oklahoma, 470 U.S. 68 (1985) (holding where defendant’s mental state at issue, defendant entitled to access to psychiatrist and psychiatric assistance in preparing defense).

Barefoot v. Estelle, 463 U.S. 880 (1983) (upholding admission in sentencing proceeding of psychiatric testimony regarding future dangerousness).

People v. Murtishaw, 29 Cal. 3d 733, 631 P.2d 446, 175 Cal. Rptr. 738 (1981) (finding no showing of reliability and holding inadmissible as aggravating factor during penalty phase expert testimony forecasting future dangerousness), cert. denied, 455 U.S. 922 (1982).

Deborah W. Denno, Comment, Review Essay: “Death is Different” and Other Twists of Fate: The Death Penalty in the Nineties: An Examination of the Modern System of Capital Punishment. By Welsh W. White, 83 J. Crim. L. & Criminology 437 (1992) (discussing Barefoot as an example of Supreme Court’s twisting of original “death is different” doctrine).

George E. Dix, Expert Prediction Testimony in Capital Sentencing: Evidentiary and Constitutional Considerations, 19 Am. Crim. L. Rev. 1 (1981) (discussing, after Smith but prior to Barefoot, due process problems with admission of “unreliable” evidence in capital sentencing proceedings).

William S. Geimer, Death at Any Cost: A Critique of the Supreme Court’s Recent Retreat from its Death Penalty Standards, 12 Fla. St. U.L. Rev. 737 (1985) (reviewing Barefoot and other Supreme Court decisions, arguing that Court has abandoned commitment to due process in capital cases; Barefoot is one example).

Christopher Slobogin, Dangerousness and Expertise, 133 U. Pa. L. Rev. 97 (1984) (arguing that “clinical” testimony re: future behavior should be admissible only if defendant first seeks to use clinical testimony to show not dangerous; otherwise, state must rely on hard “actuarial” data to prove future dangerousness).