463 U.S. 880 (1983), 82-6080, Barefoot v. Estelle

Docket Nº:No. 82-6080.
Citation:463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090
Party Name:Thomas A. BAREFOOT, Petitioner, v. W.J. ESTELLE, Jr., Director, Texas Department of Corrections.
Case Date:July 06, 1983
Court:United States Supreme Court

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463 U.S. 880 (1983)

103 S.Ct. 3383, 77 L.Ed.2d 1090

Thomas A. BAREFOOT, Petitioner,


W.J. ESTELLE, Jr., Director, Texas Department of Corrections.

No. 82-6080.

United States Supreme Court.

July 6, 1983

Argued April 26, 1983.

Relief in habeas corpus was denied a state prisoner in the United States District Court for the Western District of Texas, which granted motion to proceed in forma [103 S.Ct. 3384] pauperis and issued certificate of probable cause. While denial of habeas was on appeal, petitioner moved to stay execution of death sentence pending appeal. The Court of Appeals, 697 F.2d 593, denied the motion, holding that there was no patent substantial merit, or semblance thereof, to petitioner's constitutional objections. Certiorari was granted, and the Supreme Court, Justice White, held that: (1) failure of Court of Appeals to expressly affirm judgment did not conflict with case precedent and Court of Appeals could not be faulted for same where resolution of primary issue on appeal reflected careful consideration; (2) proper procedures are necessary for handling of applications for stays of executions, including procedures that allow decision on merits of appeal accompanying denial of stay; (3) general guidelines for development of such procedures would be set forth; (4) jury should not be barred from hearing views of state's psychiatrists along with opposing views of the defendant's doctors as to defendant's dangerousness; (5) expert opinions, whether in form of opinion based on hypothetical questions or otherwise, ought in general to be deduced from facts that are not disputed, or from facts given in evidence, but may be founded upon statement of facts proved in case rather than upon personal knowledge, and even in cases involving death penalty there is no constitutional barrier to applying ordinary rules of evidence governing use of expert testimony including use of hypothetical questions; and (6) no error was shown in use of hypothetical questions of psychiatric witnesses, in the capital case at bar, despite contentions that doctors should not have been permitted to give opinion on ultimate issue before jury, particularly when hypothetical questions were phrased in terms of defendant's own conduct, that hypothetical questions referred to controverted facts and that answers to questions were so positive as to be assertions of fact and not opinions.

Judgment of District Court affirmed.

Justice Stevens filed opinion concurring in the judgment.

Justice Marshall dissented and filed opinion in which Justice Brennan joined.

Justice Blackmun dissented and filed opinion in which Justice Brennan and Justice Marshall joined in part.

[103 S.Ct. 3387] Syllabus[*]


Petitioner was convicted of capital murder in a Texas state court after a jury trial. A separate sentencing hearing was then held before the same jury to determine [103 S.Ct. 3388] whether the death penalty should be imposed. One of the questions submitted to the jury, as required by a Texas statute, was whether there was a probability that the petitioner would commit further criminal acts of violence and would constitute a continuing threat to society. In addition to introducing other evidence, the State called two psychiatrists, who, in response to hypothetical questions, testified that there was such a probability. The jury answered the question, as well as another question as to whether the killing had been deliberate, in the affirmative, thus requiring imposition of the death penalty. On appeal, the Texas Court of Criminal Appeals rejected petitioner's contention that such use of psychiatric testimony at the sentencing hearing was unconstitutional, and affirmed the conviction and sentence. Ultimately, after this Court had denied certiorari and the Texas Court of Criminal Appeals had denied a habeas corpus application, petitioner filed a petition for habeas corpus in Federal District Court raising the same claims with respect to the use of psychiatric testimony. The District Court rejected these claims and denied the writ, but issued a certificate of probable cause pursuant to 28 U.S.C. § 2253, which provides that an appeal may not be taken to a court of appeals from the final order in a habeas corpus proceeding where the detention complained of arises out of process issued by a state court "unless the Justice or Judge who rendered the order or a Circuit Justice or Judge issues a certificate of probable cause." The Texas Court of Criminal Appeals again denied a habeas corpus application, as well as denying a stay of execution. Shortly thereafter, the Court of Appeals also denied a stay of execution pending appeal of the District Court's judgment. This Court, treating an application for stay of execution as a petition for a writ of certiorari before judgment, granted certiorari.


1. The Court of Appeals did not err in refusing to stay petitioner's death sentence. Pp. 3391-3395.

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(a) Although it did not formally affirm the District Court's judgment, there is no question that the Court of Appeals ruled on the merits of the appeal in the course of denying a stay and that petitioner had ample opportunity to address the merits, and such practice was within the bounds of this Court's prior decisions, such as Garrison v. Patterson, 391 U.S. 464, 88 S.Ct. 1687, 20 L.Ed.2d 744. The parties, as directed, filed briefs and presented oral arguments, thus making it clear that whether a stay would be granted depended on the probability of success on the merits. While it would have been advisable for the Court of Appeals to affirm expressly the District Court's judgment, as well as to deny the stay, the court's failure to do so does not conflict with Garrison and related cases. Although the Court of Appeals moved swiftly to deny the stay, this does not mean that its treatment of the merits was cursory or inadequate. On the contrary, the court's resolution of the primary issue on appeal, the admission of psychiatric testimony on dangerousness, reflects careful consideration. To remand to the Court of Appeals for verification that the District Court's judgment was affirmed, as petitioner urges, would be an unwarranted exaltation of form over substance. Pp. 3391-3393.

(b) The following procedural guidelines for handling applications for stays of execution on habeas corpus appeals pursuant to a certificate of probable cause are suggested: (1) A certificate of probable cause requires more than a showing of the absence of frivolity of the appeal. The petitioner must make a substantial showing of the denial of a federal right, the severity of the penalty in itself not sufficing to warrant automatic issuance of a certificate. (2) When a certificate of probable cause is issued, the petitioner must be afforded an opportunity to address the merits, and the court of appeals must decide the merits. (3) A court of appeals may adopt expedited procedures in resolving the merits of habeas corpus appeals, notwithstanding the issuance of a certificate of probable cause, but local rules should be promulgated stating [103 S.Ct. 3389] the manner in which such cases will be handled and informing counsel that the merits of the appeal may be decided on the motion for a stay. (4) Where there are second or successive federal habeas corpus petitions, it is proper for the district court to expedite consideration of the petition, even where it cannot be concluded that the petition should be dismissed under 28 U.S.C. § 2254 Rule 9(b) because it fails to allege new or different grounds for relief. (5) Stays of execution are not automatic pending the filing and consideration of a petition for certiorari from this Court to a court of appeals which has denied a writ of habeas corpus. Applications for stays must contain the information and materials necessary to make a careful assessment of the merits and so reliably determine

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whether a plenary review and a stay are warranted. A stay of execution should first be sought from the court of appeals. Pp. 3393-3395.

2. The District Court did not err on the merits in denying petitioner's habeas corpus petition. Pp. 3395-3399.

(a) There is no merit to petitioner's argument that psychiatrists, individually and as a group, are incompetent to predict with an acceptable degree of reliability that a particular criminal will commit other crimes in the future and so represent a danger to the community. To accept such argument would call into question other contexts in which prediction of future behavior are constantly made. Moreover, under the generally applicable rules of evidence covering the admission and weight of unprivileged evidence, psychiatric testimony predicting dangerousness may be countered not only as erroneous in a particular case but as generally so unreliable that it should be ignored. Nor, despite the view of the American Psychiatric Association supporting petitioner's view, is there any convincing evidence that such testimony is almost entirely unreliable and that the factfinder and the adversary system will not be competent to uncover, recognize, and take due account of its shortcomings. Pp. 3395-3398.

(b) Psychiatric testimony need not be based on personal examination of the defendant but may properly be given in response to hypothetical questions. Expert testimony, whether in the form of an opinion based on hypothetical questions or otherwise, is commonly admitted as evidence where it might help the factfinder do its job. Although this case involves the death penalty, there is no constitutional barrier to applying the ordinary rules of evidence governing the use of expert testimony. Pp. 3398-3399.

(c) The Texas courts, the District Court, and the Court of Appeals properly rejected petitioner's argument that even if the use of hypothetical questions in predicting dangerousness is acceptable as a general rule, the use made of them...

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