A. The Right to Fair Rebuttal -
The Court has consistently maintained that a capital defendant must be given a fair opportunity to meet, rebut or explain any evidence which the state offers as a reason the defendant should be sentenced to death. In the lead case establishing the "fair rebuttal" principle, Gardner v. Florida, 430 U.S. 349 (1977), the Court invalidated the death sentence because the judge who imposed the death sentence relied upon a confidential pre-sentence report not disclosed to defense counsel. The Court reasoned:
Our belief that that debate between adversaries is often essential to the truth seeking function of trials requires us also to recognize the importance of giving counsel an opportunity to comment on facts which may influence the sentencing decision in capital cases.
430 U.S. at 360.
Over the years, the Court has reaffirmed this "basic due process right" in a variety of contexts.1
In a plurality opinion in Simmons v. South Carolina, 512 U.S. 154 (1994), the Court reversed the defendant's death sentence on due process grounds holding that the trial court's failure to tell the jury the truth regarding a capital defendant's parole ineligibility if sentenced to life imprisonment, transgressed Simmons' right of fair rebuttal, especially in light of fact that prosecutor stressed the defendant's future dangerousness in his sentencing phase argument.
B. Lesser Included Offenses -
The Supreme Court has made clear that, in capital cases, the Due Process Clause of the Fourteenth Amendment is violated when a refused jury instruction, amply supported by the evidence presented at trial, results in a substantially increased risk of error in the fact-finding process. Beck v. Alabama, 447 U.S. 625, 637 (1980).2 When a jury is faced with the choice of either convicting or acquitting a defendant of capital murder and when the evidence tends to show the defendant committed some violent crime, irrelevant considerations are interjected into the fact-finding process. Id. The possibility arises that the jury may convict the defendant due to its belief that the defendant committed some crime, and should not, therefore, be allowed to go unpunished. Id. at 642. The Beck Court found this possibility constitutionally unpalatable, and mandated that the jury be given a "non-capital, third option," rather than simply guilt or acquittal of a capital crime, when the evidence supported it. Id. at 637, 641.3
C. Expert Assistance -
In Ake v. Oklahoma, 470 U.S. 68 (1985), the United States Supreme Court held that "the Constitution requires that an indigent defendant have access to the psychiatric examination and assistance necessary to prepare an effective defense based on his mental condition." Id. at 70. The Court, after discussing the potential help that might be provided by a psychiatrist, stated:
We therefore hold that when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the state must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation and presentation of the defense. This is not to say, of course, that the indigent defendant has a constitutional right to choose a psychiatrist of his personal liking or to receive funds to hire his own. Our concern is that the indigent defendant have access to a competent psychiatrist for the purpose we have discussed, and as in the case of the provision of counsel we leave to the states the decision on how to implement this right.
Id. at 83.
Ake was based upon the due process requirement that the fact-finding process must be reliable in criminal proceedings. Id. at 77-83. Due process requires the state to make available mental health experts for indigent defendants, because "the potential accuracy of the jury's determination is...dramatically enhanced" by providing indigent defendants with competent psychiatric assistance. Id. at 81-83. Because Ake's constitutional entitlement obviously extended beyond mental health professionals, since Ake was decided there has been a tremendous expansion of expert funding for indigent defendants. Significantly, both state and federal courts have recognized that Ake requires that indigent defendants be provided with funds to retain psychiatric, psychological, medical, forensic, investigative, mitigation and other types of assistance.
Before moving on, however, another set of issues relating to psychiatric examinations conducted by the State should be briefly discussed. In Estelle v. Smith, 451 U.S. 454 (1981), the Court held that the Fifth Amendment right against self-incrimination and Sixth Amendment right to counsel applicable to penalty phase of capital trial. Smith was evaluated by a state retained psychiatrist--Dr. James Grigson--to determine his competency to stand trial. Grigson failed to provide Smith with Miranda warnings prior to the interview. At the sentencing phase of the proceedings, the prosecution called Dr. Grigson, who testified that Smith was a "severe sociopath," had demonstrated no remorse and who would continue to commit violent acts in the future. The Court concluded that a "criminal defendant, who neither initiates a psychiatric evaluation not 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." 451 U.S. at 468. Thus, because Smith did not receive Miranda warnings, Grigson's testimony violated Smith's Fifth Amendment rights. Id. at 469.
The Court also held that Grigson's testimony violated the Sixth Amendment, because defense counsel were only notified that Grigson was evaluating Smith for the purpose of determining his competency to stand trial. Because Smith's Sixth Amendment right to counsel had clearly attached, and because the decision to submit to a psychiatric examination is "literally a life or death matter," 451 U.S. at 471, a defendant should not be forced to resolve such an important issue without the "guiding hand of counsel." Id. The Court has reaffirmed, and in fact expanded upon, the protections afforded by Estelle on several occasions. See Satterwhite v. Texas, 486 U.S. 249 (1988) (Court held first that petitioner's Sixth Amendment right to counsel was violated by the admission of testimony of a psychiatrist on the issue of future dangerousness who examined petitioner without his counsel being given notice as to the scope of the examination; constructive notice to counsel by placement of the state's motions and the court's ex parte orders regarding the examination in the court file did not satisfy the Sixth Amendment); Powell v. Texas, 492 U.S. 680 (1989) (per curiam) (State's use of future dangerousness violated the Sixth Amendment where no notice was given to defense counsel that examination by psychiatrist would be for that purpose; defendant did not waive his Sixth Amendment right to notice of the purpose of the examination by introducing psychiatric testimony in support of insanity defense).
1 See, e.g., Presnell v. Georgia, 439 U.S. 14 (1978) (State court's affirmance of death judgment based upon evidence in the record which would support a finding of aggravation not made by the jury, violates due process). Skipper v. South Carolina, 476 U.S. 1 (1986) (due process entitles capital defendant to introduce evidence of good conduct in custody to rebut prosecutor's reliance on future dangerousness in prison as aggravation); Lankford v. Idaho, 500 U.S. 110 (1991) (A trial judge's imposition of the death penalty upon a defendant in a case in which: the prosecution formally advised the court and the defense that it would not recommend the death penalty; the sentencing hearing focused solely on the possible prison terms that might be imposed; and, the judge gave no prior indication that he was considering imposing the death penalty did not afford the defendant adequate notice that he might be sentenced to death and therefore violated due process).
2 In Beck, the defendant was tried for the capital crime of "intentional killing in the course of a robbery." Id. at 631. At trial, the defendant adduced evidence which supported a jury charge on the lesser-included offense of felony murder, a non-capital crime in Alabama. The trial judge refused to grant the requested instruction because Alabama law did not allow a judge to give a jury instruction on a lesser-included offense in capital cases.
3 In Schad v. Arizona, 501 U.S. 624 (1991), the Court reiterated its "fundamental concern in Beck ... that a jury convinced that the defendant had committed some violent crime but not convinced that he was guilty of a capital crime might nonetheless vote for a capital conviction if the only alternative was to set the defendant free with no punishment at all. Id. at 646. The Court stated: "[t]he goal of the Beck rule, in other words, is to eliminate the distortion of the factfinding process that is created when the jury is forced into an all-or-nothing choice between capital murder and innocence." Id. at 646-647 (quoting Spaziano v. Florida, 468 U.S. 447, 455 (1984)). The jury in Schad was not faced with just such a situation because it had a third, noncapital option available to it. Id. at 647.