After respondent was indicted in Texas for murder, the State
announced its intention to seek the death penalty. At an ensuing
psychiatric examination, ordered by the trial court to determine
respondent's competency to stand trial and conducted in the jail
where he was being held, the examining doctor determined that
respondent was competent. Thereafter, respondent was tried by a
jury and convicted. A separate sentencing proceeding was then held
before the same jury, as required by Texas law. At such a
proceeding, the jury must resolve three critical issues to
determine whether or not the death sentence will be imposed. One of
these issues involves the future dangerousness of the defendant,
i.e., whether there is a probability that he would commit
criminal acts of violence that would constitute a continuing threat
to society. At the sentencing hearing, the doctor who had conducted
the pretrial psychiatric examination was allowed to testify for the
State over defense counsels' objection that his name did not appear
on the list of witnesses the State planned to use at either the
guilt or penalty stages of the proceedings. His testimony was based
on the pretrial examination, and stated in substance that
respondent would be a danger to society. The jury then resolved the
issue of future dangerousness, as well as the other two issues,
against respondent, and thus, under Texas law, the death penalty
was mandatory. The Texas Court of Criminal Appeals affirmed the
conviction and death sentence. After unsuccessfully seeking a writ
of habeas corpus in the state courts, respondent petitioned for
such relief in Federal District Court. That court vacated the death
sentence because it found constitutional error in admitting the
doctor's testimony at the penalty phase. The United States Court of
Appeals affirmed.
Held:
1. The admission of the doctor's testimony at the penalty phase
violated respondent's Fifth Amendment privilege against compelled
self-incrimination, because he was not advised before the pretrial
psychiatric examination that he had a right to remain silent and
that any statement he made could be used against him at a capital
sentencing proceeding. Pp.
451 U. S. 461-469.
(a) There is no basis for distinguishing between the guilt and
penalty
Page 451 U. S. 455
phases of respondent's trial so far as the protection of the
Fifth Amendment privilege is concerned. The State's attempt to
establish respondent's future dangerousness by relying on the
unwarned statements he made to the examining doctor infringed the
Fifth Amendment just as much as would have any effort to compel
respondent to testify against his will at the sentencing hearing.
Pp.
451 U. S.
462-463.
(b) The Fifth Amendment privilege is directly involved here
because the State used as evidence against respondent the substance
of his disclosures during the pretrial psychiatric examination. The
fact that respondent's statements were made in the context of such
an examination does not automatically remove them from the reach of
that Amendment. Pp.
451 U. S.
463-466.
(c) The considerations calling for the accused to be warned
prior to custodial interrogation apply with no less force to the
pretrial psychiatric examination at issue here. An accused who
neither initiates a psychiatric evaluation nor attempts to
introduce any psychiatric evidence may not be compelled to respond
to a psychiatrist if his statements can be used against him at a
capital sentencing proceeding. When faced while in custody with a
court-ordered psychiatric inquiry, respondent's statements to the
doctor were not "given freely and voluntarily without any
compelling influences" and, as such, could be used as the State did
at the penalty phase only if respondent had been apprised of his
rights and had knowingly decided to waive them.
Miranda v.
Arizona, 384 U. S. 436,
384 U. S. 478.
Since these safeguards of the Fifth Amendment privilege were not
afforded respondent, his death sentence cannot stand. Pp.
451 U. S.
466-469.
2. Respondent's Sixth Amendment right to the assistance of
counsel also was violated by the State's introduction of the
doctor's testimony at the penalty phase. Such right already had
attached when the doctor examined respondent in jail, and that
interview proved to be a "critical stage" of the aggregate
proceedings against respondent. Defense counsel were not notified
in advance that the psychiatric examination would encompass the
issue of their client's future dangerousness, and respondent was
denied the assistance of his counsel in making the significant
decision of whether to submit to the examination and to what end
the psychiatrist's findings could be employed. Pp.
451 U. S.
469-471.
602 F.2d 694, affirmed.
BURGER, C.J., delivered the opinion of the Court, in which
BRENNAN, WHITE, BLACKMUN, and STEVENS, JJ., joined, and in all but
Part II-C of which MARSHALL, J., joined. BRENNAN, J., filed a
concurring statement,
post, p.
451 U. S. 474.
MARSHALL, J., filed a statement concurring in part,
Page 451 U. S. 456
post, p.
451 U. S. 474.
STEWART, J., filed an opinion concurring in the judgment, in which
POWELL, J., joined,
post, p.
451 U. S. 474.
REHNQUIST, J., filed an opinion concurring in the judgment,
post, p.
451 U. S.
474.
CHIEF JUSTICE BURGER delivered the opinion of the Court.
We granted certiorari to consider whether the prosecution's use
of psychiatric testimony at the sentencing phase of respondent's
capital murder trial to establish his future dangerousness violated
his constitutional rights. 445 U.S. 926 (1980).
I
A
On December 28, 1973, respondent Ernest Benjamin Smith was
indicted for murder arising from his participation in the armed
robbery of a grocery store during which a clerk was fatally shot,
not by Smith, but by his accomplice. In accordance with Art.
1257(b)(2) of the Tex.Penal Code Ann. (Vernon 1974) concerning the
punishment for murder with malice aforethought, the State of Texas
announced its intention to seek the death penalty. Thereafter, a
judge of the 195th Judicial District Court of Dallas County, Texas,
informally ordered the State's attorney to arrange a
psychiatric
Page 451 U. S. 457
examination of Smith by Dr. James P. Grigson to determine
Smith's competency to stand trial. [
Footnote 1]
See n 5,
infra.
Dr. Grigson, who interviewed Smith in jail for approximately 90
minutes, concluded that he was competent to stand trial. In a
letter to the trial judge, Dr. Grigson reported his findings:
"[I]t is my opinion that Ernest Benjamin Smith, Jr., is aware of
the difference between right and wrong and is able to aid an
attorney in his defense."
App. A-6. This letter was filed with the court's papers in the
case. Smith was then tried by a jury and convicted of murder.
In Texas, capital cases require bifurcated proceedings -- a
guilt phase and a penalty phase. [
Footnote 2] If the defendant is found guilty, a separate
proceeding before the same jury is held to fix the punishment. At
the penalty phase, if the jury affirmatively answers three
questions on which the State has the
Page 451 U. S. 458
burden of proof beyond a reasonable doubt, the judge must impose
the death sentence.
See Tex.Code Crim.Proc.Ann., Arts.
37.071(c) and (e) (Vernon Supp. 1980). One of the three critical
issues to be resolved by the jury is
"whether there is a probability that the defendant would commit
criminal acts of violence that would constitute a continuing threat
to society."
Art. 37.071(b)(2). [
Footnote
3] In other words, the jury must assess the defendant's future
dangerousness.
At the commencement of Smith's sentencing hearing, the State
rested "[s]ubject to the right to reopen." App. A-11. Defense
counsel called three lay witnesses: Smith's stepmother, his aunt,
and the man who owned the gun Smith carried during the robbery.
Smith's relatives testified as to his good reputation and
character. [
Footnote 4] The
owner of the pistol testified as to Smith's knowledge that it would
not fire because of a mechanical defect. The State then called Dr.
Grigson as a witness.
Defense counsel were aware from the trial court's file of the
case that Dr. Grigson had submitted a psychiatric report in the
form of a letter advising the court that Smith was competent to
stand trial. [
Footnote 5] This
report termed Smith "a severe
Page 451 U. S. 459
sociopath," but it contained no more specific reference to his
future dangerousness.
Id. at A-6. Before trial, defense
counsel had obtained an order requiring the State to disclose the
witnesses it planned to use both at the guilt stage and, if known,
at the penalty stage. Subsequently, the trial court had granted a
defense motion to bar the testimony during the State's case in
chief of any witness whose name did not appear on that list. Dr.
Grigson's name was not on the witness list, and defense counsel
objected when he was called to the stand at the penalty phase.
In a hearing outside the presence of the jury, Dr. Grigson
stated: (a) that he had not obtained permission from Smith's
attorneys to examine him; (b) that he had discussed his conclusions
and diagnosis with the State's attorney; and (c) that the
prosecutor had requested him to testify, and had told him,
approximately five days before the sentencing hearing began, that
his testimony probably would be needed within the week.
Id. at A-1A-16. The trial judge denied a defense motion to
exclude Dr. Grigson's testimony on the ground that his name was not
on the State's list of witnesses. Although no continuance was
requested, the court then recessed for one hour following an
acknowledgment by defense counsel that an hour was "all right."
Id. at A-17.
After detailing his professional qualifications by way of
foundation, Dr. Grigson testified before the jury on direct
examination: (a) that Smith "is a very severe sociopath"; (b) that
"he will continue his previous behavior"; (c) that his sociopathic
condition will "only get worse"; (d) that he has no "regard for
another human being's property or for their life, regardless of who
it may be"; (e) that "[t]here is
Page 451 U. S. 460
no treatment, no medicine . . . that in any way at all modifies
or changes this behavior"; (f) that he "is going to go ahead and
commit other similar or same criminal acts if given the opportunity
to do so"; and (g) that he "has no remorse or sorrow for what he
has done."
Id. at A-17 - A-26. Dr. Grigson, whose
testimony was based on information derived from his 90-minute
"mental status examination" of Smith (
i.e., the
examination ordered to determine Smith's competency to stand
trial), was the State's only witness at the sentencing hearing.
The jury answered the three requisite questions in the
affirmative, and, thus, under Texas law, the death penalty for
Smith was mandatory. The Texas Court of Criminal Appeals affirmed
Smith's conviction and death sentence,
Smith v.
State, 540
S.W.2d 693 (1976), and we denied certiorari, 430 U.S. 922
(1977).
B
After unsuccessfully seeking a writ of habeas corpus in the
Texas state courts, Smith petitioned for such relief in the United
States District Court for the Northern District of Texas pursuant
to 28 U.S.C. § 2254. The District Court vacated Smith's death
sentence because it found constitutional error in the admission of
Dr. Grigson's testimony at the penalty phase.
445 F.
Supp. 647 (1977). The court based its holding on the failure to
advise Smith of his right to remain silent at the pretrial
psychiatric examination and the failure to notify defense counsel
in advance of the penalty phase that Dr. Grigson would testify. The
court concluded that the death penalty had been imposed on Smith in
violation of his Fifth and Fourteenth Amendment rights to due
process and freedom from compelled self-incrimination, his Sixth
Amendment right to the effective assistance of counsel, and his
Eighth Amendment right to present complete evidence of mitigating
circumstances.
Id. at 664.
Page 451 U. S. 461
The United States Court of Appeals for the Fifth Circuit
affirmed. 602 F.2d 694 (1979). The court held that Smith's death
sentence could not stand, because the State's "surprise" use of Dr.
Grigson as a witness, the consequences of which the court described
as "devastating," denied Smith due process in that his attorneys
were prevented from effectively challenging the psychiatric
testimony.
Id. at 699. The court went on to hold that,
under the Fifth and Sixth Amendments,
"Texas may not use evidence based on a psychiatric examination
of the defendant unless the defendant was warned, before the
examination, that he had a right to remain silent; was allowed to
terminate the examination when he wished; and was assisted by
counsel in deciding whether to submit to the examination."
Id. at 709. Because Smith was not accorded these
rights, his death sentence was set aside. While
"leav[ing] to state authorities any questions that arise about
the appropriate way to proceed when the state cannot legally
execute a defendant whom it has sentenced to death,"
the court indicated that "the same testimony from Dr. Grigson,
based on the same examination of Smith" could not be used against
Smith at any future resentencing proceeding.
Id. at 703,
n. 13, 709, n. 20.
II
A
Of the several constitutional issues addressed by the District
Court and the Court of Appeals, we turn first to whether the
admission of Dr. Grigson's testimony at the penalty phase violated
respondent's Fifth Amendment privilege against compelled
self-incrimination because respondent was not advised before the
pretrial psychiatric examination that he had a right to remain
silent and that any statement he made could be used against him at
a sentencing proceeding. Our initial inquiry must be whether the
Fifth Amendment privilege is applicable in the circumstances of
this case.
Page 451 U. S. 462
(1)
The State argues that respondent was not entitled to the
protection of the Fifth Amendment because Dr. Grigson's testimony
was used only to determine punishment after conviction, not to
establish guilt. In the State's view, "incrimination is complete
once guilt has been adjudicated," and therefore the Fifth Amendment
privilege has no relevance to the penalty phase of a capital murder
trial. Brief for Petitioner 33-34. We disagree.
The Fifth Amendment, made applicable to the states through the
Fourteenth Amendment, commands that "[n]o person . . . shall be
compelled in any criminal case to be a witness against himself."
The essence of this basic constitutional principle is
"the requirement that the State which proposes to convict
and punish an individual produce the evidence against him
by the independent labor of its officers, not by the simple, cruel
expedient of forcing it from his own lips."
Culombe v. Connecticut, 367 U.
S. 568,
367 U. S.
581-582 (1961) (opinion announcing the judgment)
(emphasis added).
See also Murphy v. Waterfront Comm'n,
378 U. S. 52,
378 U. S. 55
(1964); E. Griswold, The Fifth Amendment Today 7 (1955).
The Court has held that
"the availability of the [Fifth Amendment] privilege does not
turn upon the type of proceeding in which its protection is
invoked, but upon the nature of the statement or admission and the
exposure which it invites."
In re Gault, 387 U. S. 1,
387 U. S. 49
(1967). In this case, the ultimate penalty of death was a potential
consequence of what respondent told the examining psychiatrist.
Just as the Fifth Amendment prevents a criminal defendant from
being made "
the deluded instrument of his own conviction,'"
Culombe v. Connecticut, supra, at 367 U. S. 581,
quoting 2 Hawkins, Pleas of the Crown 595 (8th ed. 1824), it
protects him as well from being made the "deluded instrument" of
his own execution.
We can discern no basis to distinguish between the guilt
Page 451 U. S. 463
and penalty phases of respondent's capital murder trial so far
as the protection of the Fifth Amendment privilege is concerned.
[
Footnote 6] Given the gravity
of the decision to be made at the penalty phase, the State is not
relieved of the obligation to observe fundamental constitutional
guarantees.
See Green v. Georgia, 442 U. S.
95,
442 U. S. 97
(1979);
Presnell v. Georgia, 439 U. S.
14,
439 U. S. 16
(1978);
Gardner v. Florida, 430 U.
S. 349,
430 U. S.
357-358 (1977) (plurality opinion). Any effort by the
State to compel respondent to testify against his will at the
sentencing hearing clearly would contravene the Fifth Amendment.
[
Footnote 7] Yet the State's
attempt to establish respondent's future dangerousness by relying
on the unwarned statements he made to Dr. Grigson similarly
infringes Fifth Amendment values.
(2)
The State also urges that the Fifth Amendment privilege is
inapposite here because respondent's communications to Dr. Grigson
were nontestimonial in nature. The State seeks support from our
cases holding that the Fifth Amendment is not violated where the
evidence given by a defendant is neither related to some
communicative act nor used for the testimonial content of what was
said.
See, e.g., United States v. Dionisio, 410 U. S.
1 (1973) (voice exemplar);
Gilbert v.
California, 388 U. S. 263
(1967) (handwriting exemplar);
United States v. Wade,
388 U. S. 218
(1967) (lineup);
Schmerber v. California, 384 U.
S. 757 (1966) (blood sample).
Page 451 U. S. 464
However, Dr. Grigson's diagnosis, as detailed in his testimony,
was not based simply on his observation of respondent. Rather, Dr.
Grigson drew his conclusions largely from respondent's account of
the crime during their interview, and he placed particular emphasis
on what he considered to be respondent's lack of remorse.
See App. A-27 - A-29, A-33 - 34. [
Footnote 8] Dr. Grigson's prognosis as to future
dangerousness rested on statements respondent made, and remarks he
omitted, in reciting the details of the crime. [
Footnote 9] The Fifth
Page 451 U. S. 465
Amendment privilege, therefore, is directly involved here,
because the State used as evidence against respondent the substance
of his disclosures during the pretrial psychiatric examination.
The fact that respondent's statements were uttered in the
context of a psychiatric examination does not automatically remove
them from the reach of the Fifth Amendment.
See n 6,
supra. The state trial
judge,
sua sponte, ordered a psychiatric evaluation of
respondent for the limited, neutral purpose of determining his
competency to stand trial, but the results of that inquiry were
used by the State for a much broader objective that was plainly
adverse to respondent. Consequently, the interview with Dr. Grigson
cannot be characterized as a routine competency examination
restricted to ensuring that respondent understood the charges
against him and was capable of assisting in his defense. Indeed, if
the application of Dr. Grigson's findings had been confined to
serving that function, no Fifth Amendment issue would have
arisen.
Nor was the interview analogous to a sanity examination
occasioned by a defendant's plea of not guilty by reason of
insanity at the time of his offense. When a defendant asserts the
insanity defense and introduces supporting psychiatric testimony,
his silence may deprive the State of the only effective means it
has of controverting his proof on an issue that he interjected into
the case. Accordingly, several Courts of Appeals have held that,
under such circumstances, a defendant can be required to submit to
a sanity examination conducted by the prosecution's psychiatrist.
See, e.g., United States v. Cohen, 530 F.2d 43 478 (CA5),
cert. denied, 429 U.S. 855 (1976);
Karstetter v.
Cardwell, 526 F.2d 1144, 1145 (CA9 1975);
United States v.
Bohle, 445 F.2d 54, 66-67 (CA7 1971);
United States v
Weiser, 428 F.2d 932 936 (CA2 1969),
cert. denied 402
U.S. 949 (1971);
United States v. Albright, 388 F.2d 719,
724-725 (CA4 1968);
Pope v.
Page 451 U. S. 466
United States, 372 F.2d 710, 720-721 (CA8 1967) (en
banc),
vacated and remanded on other grounds, 392 U.
S. 651 (1968). [
Footnote 10]
Respondent, however, introduced no psychiatric evidence, nor had
he indicated that he might do so. Instead, the State offered
information obtained from the court-ordered competency examination
as affirmative evidence to persuade the jury to return a sentence
of death. Respondent's future dangerousness was a critical issue at
the sentencing hearing, and one on which the State had the burden
of proof beyond a reasonable doubt.
See Tex.Code
Crim.Proc.Ann., Arts. 37.071(b) and(c) (Vernon Supp. 1980). To meet
its burden, the State used respondent's own statements, unwittingly
made without an awareness that he was assisting the State's efforts
to obtain the death penalty. In these distinct circumstances, the
Court of Appeals correctly concluded that the Fifth Amendment
privilege was implicated.
(3)
In
Miranda v. Arizona, 384 U.
S. 436,
384 U. S. 467
(1966), the Court acknowledged that
"the Fifth Amendment privilege is available outside of criminal
court proceedings, and serves to protect persons in all settings in
which their freedom of action is curtailed in any significant way
from being compelled to incriminate themselves."
Miranda held that
"the prosecution may not use statements, whether exculpatory or
inculpatory, stemming from custodial interrogation of the defendant
unless it demonstrates the use of procedural safeguards effective
to secure the privilege against self-incrimination."
Id. at
384 U. S. 444.
Thus, absent other fully effective procedures,
Page 451 U. S. 467
a person in custody must receive certain warnings before any
official interrogation ,including that he has a "right to remain
silent" and that "anything said can and will be used against the
individual in court."
Id. at
384 U. S.
467-469. The purpose of these admonitions is to combat
what the Court saw as "inherently compelling pressures" at work on
the person, and to provide him with an awareness of the Fifth
Amendment privilege and the consequences of forgoing it, which is
the prerequisite for "an intelligent decision as to its exercise."
Ibid.
The considerations calling for the accused to be warned prior to
custodial interrogation apply with no less force to the pretrial
psychiatric examination at issue here. Respondent was in custody at
the Dallas County Jail when the examination was ordered and when it
was conducted. That respondent was questioned by a psychiatrist
designated by the trial court to conduct a neutral competency
examination, rather than by a police officer, government informant,
or prosecuting attorney, is immaterial. When Dr. Grigson went
beyond simply reporting to the court on the issue of competence and
testified for the prosecution at the penalty phase on the crucial
issue of respondent's future dangerousness, his role changed, and
became essentially like that of an agent of the State recounting
unwarned statements made in a post-arrest custodial setting. During
the psychiatric evaluation, respondent assuredly was "faced with a
phase of the adversary system," and was "not in the presence of [a]
perso[n] acting solely in his interest."
Id. at
384 U. S. 469.
Yet he was given no indication that the compulsory examination
would be used to gather evidence necessary to decide whether, if
convicted, he should be sentenced to death. He was not informed
that, accordingly, he had a constitutional right not to answer the
questions put to him.
The Fifth Amendment privilege is "as broad as the mischief
against which it seeks to guard,"
Counselman v.
Hitchcock,
Page 451 U. S. 468
142 U. S. 547,
142 U. S. 562
(1892), and the privilege is fulfilled only when a criminal
defendant is guaranteed the right "to remain silent unless he
chooses to speak in the unfettered exercise of his own will, and to
suffer no penalty . . . for such silence." [
Footnote 11]
Malloy v. Hogan,
378 U. S. 1,
378 U. S. 8
(1964). We agree with the Court of Appeals that respondent's Fifth
Amendment rights were violated by the admission of Dr. Grigson's
testimony at the penalty phase. [
Footnote 12]
A criminal defendant who neither initiates a psychiatric
evaluation nor attempts to introduce any psychiatric evidence may
not be compelled to respond to a psychiatrist if his statements can
be used against him at a capital sentencing proceeding. Because
respondent did not voluntarily consent to the pretrial psychiatric
examination after being informed of his right to remain silent and
the possible use of his statements, the State could not rely on
what he said to Dr. Grigson to establish his future dangerousness.
If, upon being adequately warned, respondent had indicated that he
would not answer Dr. Grigson's questions, the validly ordered
competency examination nevertheless could have proceeded upon the
condition that the results would be applied solely for that
purpose. In such circumstances, the proper conduct and use of
competency and sanity examinations are not frustrated,
Page 451 U. S. 469
but the State must make its case on future dangerousness in some
other way.
"Volunteered statements . . . are not barred by the Fifth
Amendment," but, under
Miranda v. Arizona, supra, we must
conclude that, when faced while in custody with a court-ordered
psychiatric inquiry, respondent's statements to Dr. Grigson were
not "given freely and voluntarily without any compelling
influences" and, as such, could be used as the State did at the
penalty phase only if respondent had been apprised of his rights
and had knowingly decided to waive them.
Id. at
384 U. S. 478.
These safeguards of the Fifth Amendment privilege were not afforded
respondent and, thus, his death sentence cannot stand. [
Footnote 13]
B
When respondent was examined by Dr. Grigson, he already had been
indicted, and an attorney had been appointed to represent him. The
Court of Appeals concluded that he had a Sixth Amendment right to
the assistance of counsel before submitting to the pretrial
psychiatric interview. 602 F.2d at 708-709. We agree.
The Sixth Amendment, made applicable to the states through the
Fourteenth Amendment, provides that, "[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have the
assistance of counsel for his defence." The "vital" need for a
lawyer's advice and aid during the pretrial phase was recognized by
the Court nearly 50 years ago in
Powell v. Alabama,
287 U. S. 45,
287 U. S. 57,
287 U. S. 71
(1932). Since then, we have held that the right to counsel granted
by the Sixth Amendment means that a person is entitled to the help
of a lawyer "at or after the time that adversary judicial
proceedings have been initiated against him . . . whether by way of
formal
Page 451 U. S. 470
charge, preliminary hearing, indictment, information, or
arraignment."
Kirby v. Illinois, 406 U.
S. 682,
406 U. S.
688-689 (1972) (plurality opinion);
Moore v.
Illinois, 434 U. S. 220,
434 U. S.
226-229 (1977). And in
United States v. Wade,
388 U.S. at
388 U. S.
226-227, the Court explained:
"It is central to [the Sixth Amendment] principle that, in
addition to counsel's presence at trial, the accused is guaranteed
that he need not stand alone against the State at any stage of the
prosecution, formal or informal, in court or out, where counsel's
absence might derogate from the accused's right to a fair
trial."
(Footnote omitted.)
See United States v. Henry,
447 U. S. 264
(1980);
Massiah v. United States, 377 U.
S. 201 (1964).
See also White v. Maryland,
373 U. S. 59
(1963);
Hamilton v. Alabama, 368 U. S.
52 (1961).
Here, respondent's Sixth Amendment right to counsel clearly had
attached when Dr. Grigson examined him at the Dallas County Jail,
[
Footnote 14] and their
interview proved to be a "critical stage" of the aggregate
proceedings against respondent.
See Coleman v. Alabama,
399 U. S. 1,
399 U. S. 7-10
(1970) (plurality opinion);
Powell v. Alabama, supra, at
287 U. S. 57.
Defense
Page 451 U. S. 471
counsel, however, were not notified in advance that the
psychiatric examination would encompass the issue of their client's
future dangerousness, [
Footnote
15] and respondent was denied the assistance of his attorneys
in making the significant decision of whether to submit to the
examination and to what end the psychiatrist's findings could be
employed.
Because " [a] layman may not be aware of the precise scope, the
nuances, and the boundaries of his Fifth Amendment privilege," the
assertion of that right "often depends upon legal advice from
someone who is trained and skilled in the subject matter."
Maness v. Meyers, 419 U. S. 449,
419 U. S. 466
(1975). As the Court of Appeals observed, the decision to be made
regarding the proposed psychiatric evaluation is "literally a life
or death matter," and is "difficult . . . even for an attorney,"
because it requires
"a knowledge of what other evidence is available, of the
particular psychiatrist's biases and predilections, [and] of
possible alternative strategies at the sentencing hearing."
602 F.2d at 708. It follows logically from our precedents that a
defendant should not be forced to resolve such an important issue
without "the guiding hand of counsel."
Powell v. Alabama,
supra, at
287 U. S.
69.
Therefore, in addition to Fifth Amendment considerations, the
death penalty was improperly imposed on respondent because the
psychiatric examination on which Dr. Grigson testified at the
penalty phase proceeded in violation of respondent's Sixth
Amendment right to the assistance of counsel. [
Footnote 16]
Page 451 U. S. 472
C
Our holding based on the Fifth and Sixth Amendments will not
prevent the State in capital cases from proving the defendant's
future dangerousness, as required by statute. A defendant may
request or consent to a psychiatric examination concerning future
dangerousness in the hope of escaping the death penalty. In
addition, a different situation arises where a defendant intends to
introduce psychiatric evidence at the penalty phase.
See
n 10,
supra.
Moreover, under the Texas capital sentencing procedure, the
inquiry necessary for the jury's resolution of the future
dangerousness issue is in no sense confined to the province of
psychiatric experts. Indeed, some in the psychiatric community are
of the view that clinical predictions as to whether a person would
or would not commit violent acts in the future are "fundamentally
of very low reliability," and that psychiatrists possess no special
qualifications for making such forecasts.
See Report of
the American Psychiatric Association Task Force on Clinical Aspects
of the Violent Individual 23-30, 33 (1974); A Stone, Mental Health
and Law: A System in Transition 27-36 (1975); Brief for American
Psychiatric Association as
Amicus Curiae 11-17.
In
Jurek v. Texas, 428 U. S. 262
(1976), we held that the Texas capital sentencing statute is not
unconstitutional on its face. As to the jury question on future
dangerousness, the joint opinion announcing the judgment emphasized
that a defendant is free to present whatever mitigating factors he
may be able to show,
e.g., the range and severity of his
past criminal conduct, his age, and the circumstances surrounding
the crime for which he is being sentenced.
Id. at
428 U. S.
272-273. The State, of course, can use the same type of
evidence in seeking
Page 451 U. S. 473
to establish a defendant's propensity to commit other violent
acts.
In responding to the argument that foretelling future behavior
is impossible the joint opinion stated:
"[P]rediction of future criminal conduct is an essential element
in many of the decisions rendered throughout our criminal justice
system. The decision whether to admit a defendant to bail, for
instance, must often turn on a judge's prediction of the
defendant's future conduct. And any sentencing authority must
predict a convicted person's probable future conduct when it
engages in the process of determining what punishment to impose.
For those sentenced to prison, these same predictions must be made
by parole authorities. The task that a Texas jury must perform in
answering the statutory question in issue is thus basically no
different from the task performed countless times each day
throughout the American system of criminal justice."
Id. at
428 U. S.
275-276 (footnotes omitted). While in no sense
disapproving the use of psychiatric testimony bearing on the issue
of future dangerousness, the holding in
Jurek was guided
by recognition that the inquiry mandated by Texas law does not
require resort to medical experts.
III
Respondent's Fifth and Sixth Amendment rights were abridged by
the State's introduction of Dr. Grigson's testimony at the penalty
phase, and, as the Court of Appeals concluded, his death sentence
must be vacated. [
Footnote
17] Because respondent's underlying conviction has not been
challenged and remains undisturbed, the State is free to conduct
further proceedings
Page 451 U. S. 474
not inconsistent with this opinion. Accordingly, the judgment of
the Court of Appeals is
Affirmed.
[
Footnote 1]
This psychiatric evaluation was ordered even though defense
counsel had not put into issue Smith's competency to stand trial or
his sanity at the time of the offense. The trial judge later
explained:
"In all cases where the State has sought the death penalty, I
have ordered a mental evaluation of the defendant to determine his
competency to stand trial. I have done this for my benefit, because
I do not intend to be a participant in a case where the defendant
receives the death penalty and his mental competency remains in
doubt."
App. A-117.
See Tex.Code Crim.Proc.Ann., Art. 46.02
(Vernon 1979). No question as to the appropriateness of the trial
judge's order for the examination has been raised by Smith.
[
Footnote 2]
Article 37.071(a) of the Tex. Code of Crim.Proc.Ann. (Vernon
Supp. 1980) provides:
"Upon a finding that the defendant is guilty of a capital
offense, the court shall conduct a separate sentencing proceeding
to determine whether the defendant shall be sentenced to death or
life imprisonment. The proceeding shall be conducted in the trial
court before the trial jury as soon as practicable. In the
proceeding, evidence may be presented as to any matter that the
court deems relevant to sentence. This subsection shall not be
construed to authorize the introduction of any evidence secured in
violation of the Constitution of the United States or of the State
of Texas. The state and the defendant or his counsel shall be
permitted to present argument for or against sentence of
death."
[
Footnote 3]
The other two issues are
"whether the conduct of the defendant that caused the death of
the deceased was committed deliberately and with the reasonable
expectation that the death of the deceased or another would
result,"
and,
"if raised by the evidence, whether the conduct of the defendant
in killing the deceased was unreasonable in response to the
provocation, if any, by the deceased."
Tex.Code Crim.Proc.Ann., Arts. 37.071(b)(1) and (3) (Vernon
Supp. 1980).
[
Footnote 4]
It appears from the record that Smith's only prior criminal
conviction was for the possession of marihuana.
See App.
A-64.
[
Footnote 5]
Defense counsel discovered the letter at some time after jury
selection began in the case on March 11, 1974. The trial judge
later explained that Dr. Grigson was "appointed by oral
communication," that "[a] letter of appointment was not prepared,"
and that "the court records do not reflect [the entry of] a written
order."
Id. at A-118. The judge also stated:
"As best I recall, I informed John Simmons, the attorney for the
defendant, that I had appointed Dr. Grigson to examine the
defendant and that a written report was to be mailed to me."
Ibid. However, defense counsel assert that the
discovery of Dr. Grigson's letter served as their first notice that
he had examined Smith.
Id. at A-113, A-116.
On March 25, 1974, the day the trial began, defense counsel
requested the issuance of a subpoena for the Dallas County
Sheriff's records of Dr. Grigson's "visitation to . . . Smith."
Id. at A-8.
[
Footnote 6]
Texas law does provide that
"[n]o statement made by the defendant during the examination or
hearing on his competency to stand trial may be admitted in
evidence against the defendant
on the issue of guilt in
any criminal proceeding."
Tex.Code Crim.Proc.Ann., Art. 46.023(g) (Vernon 1979) (emphasis
added).
See also 18 U.S.C. § 4244; Fed.Rule Crim.Proc.
12.2(c);
United States v. Alvarez, 519 F.2d 1036,
1042-1044 (CA3 1975); Note, Requiring a Criminal Defendant to
Submit to a Government Psychiatric Examination: An Invasion of the
Privilege Against Self-Incrimination, 83 Harv.L.Rev. 648, 649, and
cases cited at nn. 8-9 (1969).
[
Footnote 7]
The State conceded this at oral argument. Tr. of Oral Arg. 47,
49.
[
Footnote 8]
Although the Court of Appeals doubted the applicability of the
Fifth Amendment if Dr. Grigson's diagnosis had been founded only on
respondent's mannerisms, facial expressions, attention span, or
speech patterns, 602 F.2d 694, 704 (CA5 1979), the record in this
case sheds no light on whether such factors alone would enable a
psychiatrist to predict future dangerousness. The American
Psychiatric Association suggests, however, that,
"absent a defendant's willingness to cooperate as to the verbal
content of his communications, . . . a psychiatric
examination in these circumstances would be meaningless."
Brief for American Psychiatric Association as
Amicus
Curiae 26 (emphasis in original).
[
Footnote 9]
On cross-examination, Dr. Grigson acknowledged that his findings
were based on his "discussion" with respondent, App. A-32, and he
replied to the question "[w]hat . . . was the most important thing
that . . . caused you to think that [respondent] is a severe
sociopath" as follows:
"He told me that this man named Moon looked as though he was
going to reach for a gun, and he pointed his gun toward Mr. Moon's
head, pulled the trigger, and it clicked -- misfired, at which time
he hollered at Howie, apparently his other partner there who had a
gun, 'Watch out, Howie. He's got a gun.' Or something of that sort.
At which point, he told me -- now, I don't know who shot this man,
but he told me that Howie shot him, but then he walked around over
this man who had been shot -- didn't . . . check to see if he had a
gun, nor did he check to see if the man was alive or dead. Didn't
call an ambulance, but simply found the gun further up underneath
the counter and took the gun and the money. This is a very -- sort
of cold-blooded disregard for another human being's life. I think
that his telling me this story and not saying, you know, 'Man, I
would do anything to have that man back alive. I wish I hadn't just
stepped over the body.' Or you know, 'I wish I had checked to see
if he was all right,' would indicate a concern, guilt, or remorse.
But I didn't get any of this."
Id. at A-27 - A-28.
[
Footnote 10]
On the same theory, the Court of Appeals here carefully left
open
"the possibility that a defendant who wishes to use psychiatric
evidence in his own behalf [on the issue of future dangerousness]
can be precluded from using it unless he is [also] willing to be
examined by a psychiatrist nominated by the state."
602 F.2d at 705.
[
Footnote 11]
While recognizing that attempts to coerce a defendant to submit
to psychiatric inquiry on his future dangerousness might include
the penalty of prosecutorial comment on his refusal to be examined,
the Court of Appeals noted that making such a remark and allowing
the jury to draw its own conclusions "might clash with [this
Court's] insistence that capital sentencing procedures be unusually
reliable." 602 F.2d at 707.
See also Griffin v.
California, 380 U. S. 609
(1965).
[
Footnote 12]
For the reasons stated by the Court of Appeals, we reject the
State's argument that respondent waived his Fifth Amendment claim
by failing to make a timely, specific objection to Dr. Grigson's
testimony at trial.
See 602 F.2d at 708, n.19. In
addition, we note that the State did not present the waiver
argument in its petition for certiorari.
See this Court's
Rule 40(1)(d)(2) (1970).
[
Footnote 13]
Of course, we do not hold that the same Fifth Amendment concerns
are necessarily presented by all types of interviews and
examinations that might be ordered or relied upon to inform a
sentencing determination.
[
Footnote 14]
Because psychiatric examinations of the type at issue here are
conducted after adversary proceedings have been instituted, we are
not concerned in this case with the limited right to the
appointment and presence of counsel recognized as a Fifth Amendment
safeguard in
Miranda v. Arizona, 384 U.
S. 436,
384 U. S.
471-473 (1966).
See Edwards v. Arizona, post,
p.
451 U. S. 477.
Rather, the issue before us is whether a defendant's Sixth
Amendment right to the assistance of counsel is abridged when the
defendant is not given prior opportunity to consult with counsel
about his participation in the psychiatric examination.
But
cf. n 15,
infra.
Respondent does not assert, and the Court of Appeals did not
find, any constitutional right to have counsel actually present
during the examination. In fact, the Court of Appeals recognized
that "an attorney present during the psychiatric interview could
contribute little, and might seriously disrupt the examination."
602 F.2d at 708.
Cf. Thornton v. Corcoran, 132
U.S.App.D.C. 232, 242, 248, 407 F.2d 695, 705, 711 (1969) (opinion
concurring in part and dissenting in part).
[
Footnote 15]
It is not clear that defense counsel were even informed prior to
the examination that Dr. Grigson had been appointed by the trial
judge to determine respondent's competency to stand trial.
See n 5,
supra.
[
Footnote 16]
We do not hold that respondent was precluded from waiving this
constitutional right. Waivers of the assistance of counsel,
however,
"must not only be voluntary, but must also constitute a knowing
and intelligent relinquishment or abandonment of a known right or
privilege, a matter which depends . . . 'upon the particular facts
and circumstances surrounding [each] case. . . .'"
Edwards v. Arizona, post at
451 U. S. 482,
quoting
Johnson v. Zerbst, 304 U.
S. 458,
304 U. S. 464
(1938). No such waiver has been shown, or even alleged, here.
[
Footnote 17]
Because of our disposition of respondent's Fifth and Sixth
Amendment claims, we need not reach the question of whether the
failure to give advance notice of Dr. Grigson's appearance as a
witness for the State deprived respondent of due process.
JUSTICE BRENNAN.
I join the Court's opinion. I also adhere to my position that
the death penalty is in all circumstances unconstitutional.
JUSTICE MARSHALL, concurring in part.
I join in all but
451 U. S. I
adhere to my consistent view that the death penalty is, under all
circumstances, cruel and unusual punishment forbidden by the Eighth
and Fourteenth Amendments. I therefore am unable to join the
suggestion in Part II-C that the penalty may ever be
constitutionally imposed.
JUSTICE STEWART, with whom JUSTICE POWELL joins, concurring in
the judgment.
The respondent had been indicted for murder and a lawyer had
been appointed to represent him before he was examined by Dr.
Grigson at the behest of the State. Yet that examination took place
without previous notice to the respondent's counsel. The Sixth and
Fourteenth Amendments, as applied in such cases as
Massiah v.
United States, 377 U. S. 201, and
Brewer v. Williams, 430 U. S. 387,
made impermissible the introduction of Dr. Grigson's testimony
against the respondent at any stage of his trial.
I would for this reason affirm the judgment before us without
reaching the other issues discussed by the Court.
JUSTICE REHNQUIST, concurring in the judgment.
I concur in the judgment because, under
Massiah v. United
States, 377 U. S. 201
(1964), respondent's counsel should have been notified prior to Dr.
Grigson's examination of respondent. As the Court notes,
ante at
451 U. S. 469,
respondent had been indicted and an attorney had been appointed to
represent
Page 451 U. S. 475
him. Counsel was entitled to be made aware of Dr. Grigson's
activities involving his client, and to advise and prepare his
client accordingly. This is by no means to say that respondent had
any right to have his counsel present at any examination. In this
regard, I join the Court's careful delimiting of the Sixth
Amendment issue,
ante at
451 U. S. 470,
n. 14.
Since this is enough to decide the case, I would not go on to
consider the Fifth Amendment issues, and cannot subscribe to the
Court's resolution of them. I am not convinced that any Fifth
Amendment rights were implicated by Dr. Grigson's examination of
respondent. Although the psychiatrist examined respondent prior to
trial, he only testified concerning the examination after
respondent stood convicted. As the court in
Hollis v.
Smith, 571 F.2d 685, 690-691 (CA2 1978), analyzed the
issue:
"The psychiatrist's interrogation of [defendant] on subjects
presenting no threat of disclosure of prosecutable crimes, in the
belief that the substance of [defendant's] responses or the way in
which he gave them might cast light on what manner of man he was,
involved no 'compelled testimonial self-incrimination' even though
the consequence might be more severe punishment."
Even if there are Fifth Amendment rights involved in this case,
respondent never invoked these rights when confronted with Dr.
Grigson's questions. The Fifth Amendment privilege against
compulsory self-incrimination is not self-executing.
"Although
Miranda's requirement of specific warnings
creates a limited exception to the rule that the privilege must be
claimed, the exception does not apply outside the context of the
inherently coercive custodial interrogations for which it was
designed."
Roberts v. United States, 445 U.
S. 552,
445 U. S. 560
(1980). The
Miranda requirements were certainly not
designed by this Court with psychiatric examinations in mind.
Respondent was simply not in the inherently coercive situation
considered in
Miranda. He had already been indicted, and
counsel had been appointed to represent him. No claim is raised
that respondent's answers to Dr. Grigson's questions
Page 451 U. S. 476
were "involuntary" in the normal sense of the word. Unlike the
police officers in
Miranda, Dr. Grigson was not
questioning respondent in order to ascertain his guilt or
innocence. Particularly since it is not necessary to decide this
case, I would not extend the
Miranda requirements to cover
psychiatric examinations such as the one involved here.