1 See Shah, , Dangerousness: A Paradigm for Exploring Some Issues in Law and Psychology, 33 Am. Psychologist 224 (1978)Google Scholar.

2 Idaho Code § 19-2515 (1979); Okla. Stat. Ann. tit. 21, § 701.12(7) (West 1982); Tex. Crim. Proc. Code Ann. § 37.071 (Vernon 1981); Va. Code §§ 19.2-264.2 to .5 (1979); Wash. Rev. Code Ann. § 10.95.070(8) (1982). For a discussion of the different uses of the dangerousness criterion in the various statutes, see Dix, Expert Prediction Testimony in Capital Sentencing: Evidentiary and Constitutional Considerations, 19 Am. Crim. L. Rev. 1, 4 n.21 (1981).

3 See, e.g., Fearance v. State, 620 S.W.2d 577 (Tex. Crim. App. 1980), cert, denied sub nom., Fearance v. Texas, 454 U.S. 899 (1981); Holloway v. State. 613 S.W.2d 497 (Tex. Crim. App. 1981); Rodriguez v. State, 597 S.W.2d 917 (Tex. Crim. App. 1980), vacated sub nom., Rodriguez v. Texas, 453 U.S. 906 (1981); Barefoot v. State, 596 S.W.2d 875 (Tex. Crim. App. 1980), cert, denied, 453 U.S. 913 (1981); Simmons v. State, 623 S.W.2d 416 (Tex. Crim. App. 1981); Brandon v. State, 599 S.W.2d 567 (Tex. Crim. App. 1979), vacated, Brandon v. Texas 543 U.S. 902 (1981); Adams v. State, 577 S.W.2d 717 (Tex. Crim. App. 1979), rev'd sub nom., Adams v. Texas, 448 U.S. 38 (1980); Woods v. State, 569 S.W.2d 901 (Tex. Crim. App. 1978), cert, denied sub nom., Woods v. Texas, 453 U.S. 913 (1981); Chambers v. State, 568 S.W.2d 313 (Tex. Crim. App. 1978), cert, denied sub nom., Chambers v. Texas, 440 U.S. 928 (1979); Robinson v. State, 548 S.W.2d 63 (Tex. Crim. App. 1977); Smith v. State, 540 S.W.2d 693 (Tex. Crim. App. 1976), cert, denied sub nom., Smith v. Texas, 430 U.S. 922 (1977); Gholson v. State, 542 S.W.2d 395 (Tex. Crim. App. 1976); Moore v. State, 542 S.W.2d 664 (Tex. Crim. App. 19/'6), cert, denied sub nom., Moore v. Texas 431 U.S. 949 (1977); Livingston v. State, 542 S.W.2d 655 (Tex. Crim. App. 1976), cert, denied sub nom., Livingston v. Texas, 431 U.S. 933 (1977). Giarratano v. Commonwealth, 220 Va. 1064, 266 S.E.2d 94 (1980); Smith v. Commonwealth, 219 Va. 455, 248 S.E.2d 135, cert, denied, 441 U.S. 967 (1978).

4 See, e.g., Estelle v. Smith, 451 U.S. 454 (1981); Jurek v. Texas, 428 U.S. 262 (1976); Chambers v. State, 568 S.W.2d 313 (Tex. Crim. App. 1978), cert, denied sub nom., Chambers v. Texas, 440 U.S. 928 (1979); Giarratano v. Commonwealth, 220 Va. 1064, 266 S.E.2d 94 (1980).

The logic underlying the courts’ decisions in this area seems to be that predictions of dangerousness are so essential to the functioning of the criminal justice system that they are admissible, even in the capital sentencing context, regardless of their scientific merit. For example, in upholding the Texas capital sentencing statute—which expressly requires a finding of dangerousness—the U.S. Supreme Court specifically considered the claim that the statute was invalid because “it is impossible to predict dangerous behavior.” In addressing this argument, the Court concluded:

Jurek v. Texas, 428 U.S. at 274-76.

It is conceivable that the admissibilfty of predictions of dangerousness at sentencing might be challenged on the basis of existing rules of evidence, such as the widely accepted Frye rule. In Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), the court held that expert testimony regarding polygraph results was inadmissible and established the principle that expert testimony is admissible only if the technique or theory upon which it is based has “gained general acceptance in the particular field to which it belongs.” It might be argued that clinical predictions of dangerousness have not “gained general acceptance” in the fields of psychology and psychiatry, given the current state of empirical research and the response of the American Psychological and Psychiatric Associations. See infra notes 5-8 and accompanying text. Yet there is no denying that such predictions are made by psychologists and psychiatrists on a routine basis throughout the legal system. See supra note 1 and accompanying text.

In any event, it is not clear that sentencing hearings, proceedings in which the court generally has wide discretion to consider information relevant to disposition, are governed in all cases by the ordinary rules of evidence. For a detailed discussion of the scant case law regarding admissibility of evidence in capital sentencing proceedings, see Dix, supra note 2, at 9-10.

5 While different methodologies have been used in various studies, virtually all of them have resulted in the conclusion that dangerousness predictions by psychiatrists and psychologists generally prove to be inaccurate. See Kozol, , Boucher, & Garofalo, , The Diagnosis and Treatment of Dangerousness, 18 Crime and Delinquency 371 (1972)Google Scholar; Wenk, , Robison, & Sineth, , Can Violence be Predicted? 18 Crime and Delinquency 393 (1972)Google Scholar; Cocozza, and Steadman, , The' Failure of Psychiatric Predictions of Dangerousness: Clear and Convincing Evidence, 29 Rutgers L. Rev. 1084 (1976)Google Scholar; Steadman, and Morrissey, , The Statistical Prediction of Violent Behavior, 5 Law and Human Behavior 263 (1981)Google Scholar.

6 J. Monahan, Predicting Violent Behavior 92 (1981). See also, Dershowitz, The Psychiatrist's Power in Civil Commitment: A Knife That Cuts Both Ways, Psychology Today, February, 1969, at 42.

7 Task Force on Clinical Aspects of the Violent Individual, Am. Psychiatric Ass'n (APA Task Force Report No. 8, 1974), at 20.

8 Task Force on the Role of Psychology in the Criminal Justice System, Am. Psychological Ass'n, Report of the Task Force on the Role of Psychology in the Criminal Justice System, 33 Am. Psychologist 1099, 1110 (1978), reprinted in Who is the Client? 1, 14 (J. Monahan, ed. 1980) [hereinafter cited as The Role of Psychology in the Criminal Justice System].

9 This psychiatrist, Dr. James Grigson, “is not unique.” J. Robitscher, The Powers of Psychiatry 199 (1980). For a general discussion of Dr. Grigson's (and others psychiatrists’) frequent testimony in capital sentencing proceedings, see id. at 198-207.

10 They Call Him Dr. Death, Time, June 1, 1981 at 64. See also Taylor, Dallas’ Doctor of Doom, Nat'l L.J., Nov. 24, 1980, at 1, col. 2.

11 451 U.S. 454 (1981) (habeas corpus review of Smith v. State, 540 S.W.2d 693 (Tex. Crim. App. 1976), cert, denied, 430 U.S. 922 (1977)).

12 Trial transcript cited in Dix, The Death Penalty, “Dangerousness,” Psychiatric Testimony and Professional Ethics, 5 Am. J. CRIM. L. 151, 158 (1977).

13 Estelle v. Smith, 451 U.S. 454 (1981).

14 Id. “Id.

16 655 F.2d 692 (5th Cir. 1981).

17 Under United States v. Cohen, 530 F.2d 43 (5th Cir.) cert, denied sub nom., Cohen v. United States, 429 U.S. 855 (1976), as interpreted in both Estelle v. Smith, 451 U.S. 454 (1981), and Battie v. Estelle, 655 F.2d 692 (5th Cir. 1981), introduction of psychiatric testimony by the defense constitutes a waiver of the defendant's fifth amendment privilege against compulsory psychiatric or psychological examination. The Battie court interpreted Cohen as holding that “any burden imposed upon the defense by this result is justified by the State's overwhelming difficulty in responding to the defense psychiatric testimony without its own psychiatric examination of the accused and by the need to prevent fraudulent mental defenses.” 655 F.2d at 702.

18 While such testimony is legally admissible, psychiatrists presently are ethically barred from giving an opinion without conducting an examintion. See infra note 32 and accompanying text. Psychologists, on the other hand, face no similar ethical bar. See infra text accompanying notes 38-41.

19 This technique, a common approach employed in developing expert testimony in many legal contexts, involves asking the expert to “assume certain facts disclosed by the evidence and to give his opinion in answer to a question based upon [these assumptions].” Such a “hypothetical” question “usually assumes those disputed facts which are consistent with the examiner's theory of the case.” A. Moenssens, Scientific Evidence in Criminal Cases, § 1.12 (1973).

20 596 S.W.2d 875 (Tex. Crim. App. 1980), cert, denied sub nom. Barefoot v. Texas, 453 U.S. 913 (1981).

21 Id. at 887.

22 Id.

23 620 S.W.2d 577 (Tex. Crim. App. 1980), cert, denied sub nom. Fearance v. Texas , 45 4 U.S. 899 (1981).

24 Id. at 585 n.9.

25 Experience strongly suggests that the jury will regard such an “opinion” as “fact.” Dr. Grigson, see supra note 9, has summarized the jury's reliance upon his testimony as follows: “Just take any man off the street, show him what the [defendant has] done, and most of them would say the same things I do. But I think the jurors feel a little better when a psychiatrist says it—somebody that's supposed to know more than they know.” Bloom, Doctor for the Prosecution, American Lawyer, Nov. 1979, 25, 26.

26 They Call Him Dr. Death, supra note 10, at 64.

J. Robitscher, supra note 9, at 198.

28 Preliminary Report of the Task Force on the Role of Psychiatry in the Sentencing Process, Am. Psychiatric Ass'n 16-17 (May 7, 1981) (unpublished draft).

29 Am. Psychiatric Ass'n, The Principles of Medical Ethics with Annotations Especially Appucable to Psychiatry (1981) [hereinafter cited as Principles of Medical Ethics Applicable to Psychiatry]. The 1973 edition of these principles, substantially similar to the 1981 edition, may be found reprinted in R. Cohen & W. Mariano, Legal Guidebook in Mental Health 54-61 (1982).

30 Am. Medical Ass'n, Principles of Medical Ethics (1980).

31 Principles of Medical Ethics Applicable to Psychiatry, supra note 29, at §§ 4(5), 4(6).

32 Id. at §§7(1), 7(3).

33 The admission of expert testimony based upon an examination not preceded by such a warning would also be a violation of the defendant's constitutional right against selfincrimination. See supra notes 15-16 and accompanying text.

34 See supra note 31 and accompanying text.

35 See Rodriguez v. State, 596 S.W.2d 917, 925 (Tex. Crim. App. 1980) (Testimony of James P. Grigson, M.D.).

36 See supra notes 5 and 6.

37 As noted earlier, such an opinion will likely be understood by the jury as establishing dangerousness as a matter of fact. See supra note 25.

38 Am. Psychological Ass'n, Ethical Principles of Psychologists (1981), reprinted in 36 Am. Psychologist 633 (1981) [hereinafter cited as Ethical Principles of Psychologists].

39 Id. at 637.

40 Id. at 636.

41 See supra text accompanying note 39.

42 See Principles of Medical Ethics Applicable to Psychiatry, supra note 29, at § 5 (“A physician shall continue to study, apply and advance scientific knowledge… .”) Ethical Principles of Psychologists, supra note 38, at 633 (“Principle 2 … . [Psychologists] maintain knowledge of current scientific and professional information related to the services they render.”). See generally Weiner, Clinical Methods in Psychology (1976); Kolb, Modern Clinical Psychiatry (1973).

43 Traditionally, state licensing laws have required persons using the title “psychologist” to possess a doctoral degree in psychology. See, e.g., N.Y. Educ. Law §§ 7601, 7603 (McKinney 1972 & Supp. 1979). There have been instances, however, where use of the title was controlled less strictly. See R. Cohen & W. Mariano, Legal Guidebook in Mental Health, xvi-xvii, 14 (1982). This article uses the term “psychologist” in the traditional sense.

44 See infra notes 50-53 and accompanying text.

45 “Clinical intuition” refers to those aspects of diagnosis or prediction which have their basis in the clinician's own professional experience (or the clinical observations of others) and are generally not supported by specific scientific data. For example, as a result of the accumulation of scientific data, the diagnosis “sociopath” as been eliminated from the American Psychiatric Association's Diagnostic and Statistical Manual. See Bloom, supra note 25, at 25. Yet the diagnosis continues to be used, particularly in conjunction with predictions of dangerousness, by clinicians who rely more upon clinical intuition than scientific data. As Dr. Grigson, see supra note 9 and accompanying text, has explained, “I have been doing this since 1960 and in that time I've examined more murderers and more rapists than the combined number examined by the people who wrote the APA diagnostic manual … . I think I can identify a sociopath when I see one.” Bloom, supra note 25, at 26.

46 Collins v. State, 548 S.W.2d 368, 378 (1976).

47 “[Professionals should not offer a guess based upon clinical wisdom. The guess of a professional, no matter how well intentioned, is unlikely to be better than the guess of the average judge or juror and thus is not really an expert opinion.” Morse, , Law and Mental Health Professionals: The Limits of Expertise, 9 Prof. Psychology 389, 397 (1978)Google Scholar.

48 See sources cited supra note 5.

49 See, e.g., Monahan, supra note 6, and Steadman and Morrissey, supra note 5.

50 Am. Medical Ass'n, Principles of Medical Ethics (1980).

51 Principles of Medical Ethics Applicable to Psychiatry, supra note 29.

52 American Psychological Association Committee on Standards for Providers of Psychological Services, Specialty Guidelines for the Delivery of Services by Clinical Psychologists. 36 Am. Psychologist 640, 642 (1981) (emphasis added).

53 V. Bernaly del Rio, Psychiatric Ethics, in 3 Comprehensive Textbook of Psychiatry, 3219 (1980).

54 Id.

55 But, of course, there is no reason to believe that predictions of dangerousness in these legal contexts will be any more valid or reliable than those rendered in capital sentencing proceedings.

56 See, e.g., Tex. Code Crim. Proc. Ann. art. 37.071 (Vernon 1981) (statute employs dangerousness criterion but does not require introduction of expert testimony).

57 See supra note 27 and cases cited supra at note 3.

58 Doctors Down Participation in Death Penalty, 1 Death Penalty Rptr. 1 (October 1980).

59 See Idaho Gen. Laws Ann. tit. 19, § 2716 (1978); N.M. Stat. Ann. ch. 31, § 1411 (1979); Okla. Stat. Ann. tit. 22, § 1014 (West 1977); Texas Crim. Proc. Code Ann. § 4314 (Vernon 1977).

60 Curran, and Casscells, , The Ethics of Medical Participation in Capital Punishment by Intravenous Drug Injection, 302 New Eng. J. Med. 226, 230 (1980)Google Scholar.

61 See Judicial Council, Am. Medical Ass'n., Report A (1980) reprinted in 1 Death Penalty REP. 8-9 (1980).

62 Principles of Medical Ethics Applicable to psychiatry, supra note 29, at § 1(4).

63 Curran and Casscells, supra note 60, at 230.

64 While the jury or court has ultimate authority to determine whether the death sentence should be imposed, several commentators have concluded that an expert prediction of dangerousness is, in practice, highly persuasive. See supra notes 25 and 27.

65 Curran and Cascells, supra note 60, at 229.

66 See supra notes 5-8 and accompanying text.

67 See supra notes 45-49 and accompanying text.

68 As Robitscher, supra note 9, has argued, the psychiatrist or psychologist who testifies that a convicted capital defendant is dangerous is “recommending that death is the best solution for a behavioral problem.” Id. at 198.

69 See supra note 9.

70 See supra note 2 and accompanying text.

71 See, e.g., Brief Amicus Curiae for the American Psychiatric Ass'n, Estelle v. Smith, 451 U.S. 454 (1981).

72 See supra notes 7-8 and accompanying text.

73 Dix, supra note 12, at 213-14.

74 Bonnie, , Psychiatry and the Death Penalty: Emerging Problems in Virginia, 66 Va. L. Rev. 167 (1980)Google Scholar.

75 See Kozol et al., supra note 5.

76 See Wenk et al., supra note 5.

77 Shah, supra note 1, points out 15 different decisionmaking contexts in which the legal system relies upon clinical predictions of dangerousness.

78 Given the extent to which clinical predictions of dangerousness are currently relied upon by the justice system, see supra note 77, an across the board ban on such predictions, though perhaps warranted, seems virtually inconceivable.

79 See supra notes 53-55 and accompanying text.

80 Cf. The Role of Psychology in the Criminal Justice System, supra note 8 at 14 (“We reject the argument that somebody has to make predictions” in determining sentencefs] and these predictions necessarily will be made at an even lower level of validity—or a higher level of bias—if psychologists [and psychiatrists] “abdicate” their roles as predictors of future crime.).

81 See supra notes 7 and 8 and accompanying text.

82 It should be noted that there is no constitutional requirement that imposition of the death penalty be made contingent upon proof that the convicted defendant is “dangerous.” Indeed the vast majority of state death penalty statutes do not require proof of dangerousness. See e.g, Ohio Rev. Code Ann. ch. 29, § 2904 (Page 1954).

83 Task Force on Clinical Aspects of the Violent Individual, Am. Psychiatric Ass'n supra note 7, at 20.

84 See Ethical Principles of Psychologists, supra note 38, at 636 (“Principle Seven … Psychologists do not exploit their professional relationships with clients … sexually or otherwise.”); Principles of Medical Ethics Applicable to Psychiatry, supra note 29, § 2(1) (“Sexual activity with a patient is unethical.”).

85 Preliminary Report of the Task Force on the Role of Psychiatry in the Sentencing Process, supra note 28.

86 See, e.g., Am. Medical Ass'n, Principles of Medical Ethics, supra note 30, preamble (“The following Principles, adopted by the American Medical Association, are not laws, but standards of conduct which define the essentials of honorable behavior for the physician.”)

87 See, e.g., Hare-Mustin, & Hall, , Procedures for Responding to Ethics Complaints Against Psychologists, 36 Am. Psychologist 1494 (1981)Google Scholar. See also Sid\ey; President's Message, 8 Bull. Am. Acad. Psychiatry and Law, iv, vii. (1980).

88 See Principles of Medical Ethics Applicable to Psychiatry, supra note 29, at § 2(8) (“When a member has been found to have behaved unethically … there should not be automatic reporting to the local authorities responsible for medical licensure, but the decision to report should be decided upon the merits of the case.”).

89 Principles of Medical Ethics Applicable to Psychiatry, supra note 29, at § 2(8).

90 Of course, even without such a ban, defense lawyers might attempt to impeach the expert by cross-examining him or her on the basis of the empirical evidence demonstrating the unreliability of dangerousness predictions. Yet, to date, cross-examination in capital sentencing cases has not risen to this level of sophistication since “[m]ost lawyers are not aware enough of psychiatric practice and the limitations of psychiatric expertise to do a competent cross-examination of psychiatric witnesses.” J. Robitscher, supra note 9, at 202. Crossexamination relying upon the proposed ethical ban would be a simple matter requiring little or no psychiatric sophistication on the part of the defense lawyer.

91 See supra text accompanying notes 70-74.