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2 Dev. Mental Health L. 1 (1982)

handle is hein.journals/dvmnhlt2 and id is 1 raw text is: A Quarterly Publication of the Institute of Law, Psychiatry & Public Policy at the University of Virginia
Developments In
Mental Health Law
Box 100, Blue Ridge Hospital, Charlottesville, VA 22901 (604) 924-5435  Vol. 2 No. 1 Jan.-March 1982
The Implications Of Estelle For
The Mental Health Professional

by Christopher Slobogin*
The Supreme Court's recent deci-
sion in Estelle v. Smith1 considered the
impact of the Fifth Amendment's
privilege against self-incrimination and
the Sixth Amendment's right to coun-
sel on the conduct of pretrial mental
evaluations of capital defendants who
neither initiate the evaluation nor plan
to introduce clinical2 evidence at
sentencing. The Court held that expert
testimony about such a defendant's
dangerousness at the capital sentenc-
ing  proceeding is constitutionally
inadmissible if the defendant has not
been warned, before being evaluated,
of his right to remain silent. It also held
that the defendant's attorney must be
notified about the evaluation before it
takes place. The Court in Estelle did
not consider the application of these
constitutional principles to forensic
evaluations that address only the
offender's mental state at the time of
the offense and his competency to
stand trial. This article will attempt to
explain how Estelle affects the conduct
of these more typical pretrial forensic
evaluations as well as examine its
impact on the type of assessment at
issue in Estelle itself.
The Opinion
The facts of Estelle are crucial to
understanding the decision. Under
Texas law, the death penalty must be
*Mr. Slobogin, J.D.,LL..L, is a professor at the
University of Virginia School of Law.

imposed if the jury affirmatively
answers three questions, one of which
focuses on whether there is a proba-
bility that the defendant would commit
criminal acts of violence that would
constitute a continuing threat to
society.3 At the sentencing phase of
Ernest Smith's trial for capital murder,
the prosecution's only witness was Dr.
Grigson. He testified, inter alia, that
Smith was a severe sociopath who is
going to go ahead and commit other
similar or same criminal acts if given
the opportunity to do so and who has
no regard for another human being's
property or for their life, regardless of
who it may be.4 The jury answered the
dangerousness question and the two
other questions in the affirmative, and
the judge imposed the death penalty.
Dr. Grigson had been ordered
informally to perform an evaluation of
Smith by the trial judge prior to the trial.
The judge requested only that Grigson
assess Smith's competency to stand
trial, yet Grigson's letter to the judge
went far beyond the limited range of the
court order. In the letter, Grigson
observed that: It is my opinion that
Ernest Benjamin Smith, Jr. is aware of
the difference between right and wrong
... ; he also referred to Smith as a
severe sociopath, although he did
not make any explicit reference to
Smith's dangerousness.5 On appeal, it
was stipulated that neither the prosecu-
tor nor Dr. Grigson had obtained
permission from the defense to exam-
ine Smith. Nor did Smith's attorneys
know that Dr. Grigson would evaluate

Smith's mental state at the time of the
offense and his dangerousness, as well
as his competency. Apparently, Smith
himself was told nothing about the
purpose of the evaluation or the risks
that it entailed.6
It was not until the sentencing
proceeding that Smith's attomeys
discovered that Dr. Grigson would be a
witness for the prosecution and that he
would testify about Smith's dangerous-
ness.7 At no point during the sentenc-
ing proceeding did the defense offer
clinical testimony of its own on the
issue of dangerousness or on any other
The first part of the Supreme Court's
opinion held that, given the gravity of
the decision to be made at the [death]
penalty phase,9 Fifth Amendment
protection must be accorded a defend-
ant at the sentencing as well as the guilt
phase of a capital murder trial. Chief
Justice Burger, writing for a unani-
mous court, stated:
When Dr. Grigson went beyond
simply reporting to the court on the
issue of competency and testified for
the prosecution at the penalty phase
on the crucial issue of respondent's
Also In This Issue
3/ Proposal To Abolish
Insanity Defense
5/ In     The    United
States Supreme CourtI


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