Reducing the Dangers of Future Dangerousness Testimony: Applying the Federal Rules of Evidence to Capital Sentencing

27 Pages Posted: 3 Jun 2020

See all articles by Jaymes V. Fairfax-Columbo

Jaymes V. Fairfax-Columbo

affiliation not provided to SSRN

David DeMatteo

Drexel University Thomas R. Kline School of Law

Date Written: March 2017

Abstract

The United States Supreme Court has long held that the death penalty cannot be imposed arbitrarily, and that during sentencing in capital cases, jurors must be provided with guidelines to assist them in narrowing down the class of individuals for whom the death penalty is appropriate. Typically, this is accomplished through the presentation of aggravating and mitigating evidence. One aggravating factor is a capital offender's future dangerousness, or the likelihood that the individual will engage in violent institutional misconduct while in prison. Future dangerousness may be assessed using a variety of measures; Hare's Psychopathy Checklist-Revised (PCL-R), a measure of personality traits associated with psychopathy, is one such measure that informs future dangerousness testimony. However, research suggests that the predictive validity of the PCL-R regarding violent institutional misconduct is weak-to-moderate, and that presentation of such evidence can prejudice jurors such that they will be more likely to assign the death penalty than they would in the absence of such evidence. These findings are concerning, particularly considering the severe social costs and individual rights deprivations associated with the death penalty. This Article will trace the history of Supreme Court capital sentencing decisions, examine the scientific literature regarding the predictive validity and bias potential for PCL-R evidence in capital sentencing, and argue that, in light of this weak literature base and the deleterious impact that misguided capital sentencing can have, applying the Federal Rules of Evidence to capital sentencing contexts may present an effective solution for keeping specious future dangerousness evidence out of the courtroom.

Keywords: Evidence, Federal Rules of Evidence, Sentencing, Testimony, Psychiatrists and Psychologists

Suggested Citation

Fairfax-Columbo, Jaymes V. and DeMatteo, David, Reducing the Dangers of Future Dangerousness Testimony: Applying the Federal Rules of Evidence to Capital Sentencing (March 2017). William & Mary Bill of Rights Journal, Vol. 25, No. 3, 2017, Available at SSRN: https://ssrn.com/abstract=3593819

Jaymes V. Fairfax-Columbo

affiliation not provided to SSRN

David DeMatteo (Contact Author)

Drexel University Thomas R. Kline School of Law ( email )

3320 Market Street
Philadelphia, PA 19104
United States

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