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Death Penalty Debate--Can New Violence Be Predicted?

Law: Warnings by expert witnesses unscientific, critics say, while civil courts have tough standard on reliability.


LUBBOCK, Texas — Could it be that American courts have a looser standard for evidence when a person's life is at stake than when a corporation is defending its money?

That stark question is increasingly being raised by lawyers, legal scholars and, most recently, a highly regarded conservative federal judge.

It is at the heart of appeals in two pending death penalty cases, including that of a man, Miguel Angel Flores, who is scheduled to be executed this week. And it could reopen a significant front in the legal wars over capital punishment.

At issue is how much leeway scientists, doctors and other expert witnesses should have to present opinions to juries.

In the two states that lead the nation in executions--Texas and Virginia--the law asks juries to decide if a defendant is likely to be "a continuing threat to society."

Prosecutors frequently use psychiatric experts to offer their opinions on that question. Particularly in Texas, the psychiatrists almost never actually examine the defendants, but virtually always predict with a strong degree of certainty--sometimes 100% certainty--that the defendant will commit a violent act in the future. Testimony of that sort has been used in cases of more than 100 people on death row in Texas alone, according to a recent study.

Such predictions are widely discounted among scientists and would almost certainly never be allowed in a civil suit--a case over a defective product, for example--legal experts on both sides of the death penalty debate say. The gap between what is allowed in the two types of cases is at the heart of appeals being filed by lawyers for Flores and another Texas inmate, Joe Lee Guy.

Exams Called 'Hindrance'

Several studies have suggested that attempts to predict a person's dangerousness are wrong more often than right. And the American Psychiatric Assn. for many years has taken the position that "medical knowledge has simply not advanced to the point where long-term predictions . . . may be made with even reasonable accuracy."

One of the most frequently used psychiatrists in Texas death penalty cases is E. Clay Griffith, 75, now retired and living in Dallas. He testified against Flores and Guy.

In an interview, Griffith said he has testified in more than 145 capital cases in Texas--almost always for the prosecution. "I didn't lose any," he said.

There are at least 122 death row inmates in Texas whose trials included testimony from a psychiatrist about future dangerousness, according to a search of court records by the Texas Defender Service, a nonprofit organization that specializes in capital appeals.

Interviewing Flores would not have helped his assessment, Griffith said, adding that sometimes examining the defendant "is a hindrance in comparison to a hypothetical question."

In the Flores and Guy cases, Griffith said, there was an overwhelming likelihood that the defendants would commit violent acts in the future. He did not interview either man.

In Guy's case, Griffith said there was a "99, a 100%" certainty that the defendant would commit a violent act in the future, describing him as a "moral imbecile" with an antisocial personality disorder.

Griffith based his prediction on a long hypothetical question posed by a prosecutor describing the crimes and a review of some of the defendant's medical and school records.

Testimony of that sort draws consistent criticism from leading psychiatrists.

"I don't believe a psychiatrist can respond to a reasonable degree of medical certainty on a hypothetical question about the future dangerousness of a defendant he has never examined," said Dr. Paul Appelbaum, chairman of the psychiatry department at the University of Massachusetts Medical School and vice president of the American Psychiatric Assn.

"It is like an art appraiser attempting to appraise the value of a painting blindfolded by merely being able to touch the painting," Appelbaum said.

The question of whether that sort of testimony should be allowed came before the U.S. Supreme Court in 1983 in a case from Texas. The justices said such testimony was allowable because jurors could make up their own minds about whether to believe it.

Objections to expert psychiatric testimony are "founded on the premise that a jury will not be able to separate the wheat from the chaff," the late Supreme Court Justice Byron R. White wrote in the opinion upholding the practice. "We do not share in this low evaluation of the adversary process."

In 1983, White's statement would have applied in suits over defective products, too. But since then the high court and appeals courts in several major states have taken a sharply different view of expert testimony in civil cases.

Responding to a steady drumbeat criticizing the use of what critics call "junk science" in court, judges have moved steadily to rein in the use of expert witnesses.

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