A Dangerous Preoccupation with Future Danger: Why Expert Predictions of Future Dangerousness in Capital Cases Are Unconstitutional

Abstract

In Furman v. Georgia, the United States Supreme Court held that it was unconstitutional to administer the death penalty upon the sole, unguided discretion of juries. In response to Furman, some states amended their statutes to suggest or require that a jury assess the defendant's future dangerousness before issuing a death sentence. Generally, this assessment is based on psychiatric expert testimony. This author explores the reliability and accuracy of psychiatric expert testimony of future dangerousness in light of the Court's more recent Barefoot v. Estelle and Dauber, v. Merrell Dow Pharmaceuticals decisions. The author argues that because the death penalty is so extreme and utterly final, heightened standards of reliability and accuracy should be used when determining the admissibility of evidence at the sentencing phases of capital trials.