Daubert Won’t Do Why Expert Testimony Regarding Future Dangerousness Requires a New Rule of Evidence
Citation: 107 Geo L.J. (2019)
You walk into a courtroom. You see a man at the defendant’s table. His arms and legs are shackled. His nerves are visible. His fear is potent. The judge instructs him to stand. He faces the jury. Guilty. Guilty of capi-tal murder. But the jury is not done with this man. Now it must decide whether he deserves the ultimate penalty: death. Into the courtroom walks a woman waving a re´sume´ covered with every psychiatric degree that exists. She sits in the witness chair. You hear the prosecutor describe the defendant’s past actions with excruciating detail. You see the prose-cutor turn to that psychiatrist and ask her, hypothetically, if the person that the prosecutor just described would be likely to commit a violent crime in the future. The psychiatrist, in turn, looks each member of the jury in the eye and says, “I am 100% certain that such a man would com-mit another violent crime.” The jury hears this “expert testimony.” The jury sentences the man to die. Although this scene might seem like some-thing out of a tasteless Hollywood drama, in nine states across the coun-try, juries are permitted to hear this type of expert testimony when making determinations of future dangerousness. Despite the seriousness of the question the jury must confront, there are no rules of evidence to protect against unreliable proclamations by these experts. Some have argued that the evidentiary standard laid out by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc. could help protect against unreliable expert testimony about future dangerousness. But Daubert won’t do. A balancing test, modeled as a reverse 403 test of weighted considerations of the probative and prejudicial value of such testimony, will better protect capital defendants during sentencing. This Note explores why this solution is both needed and proper.