451 U.S. 454 (1981)
On December 28, 1973, Ernest Benjamin Smith was indicted in Texas for murder arising from his participation in the armed robbery of a grocery store during which a clerk was fatally shot by his accomplice.1 The State of Texas announced its intention to seek the death penalty under Art. 1257(b)(2) of the Texas Penal Code.2 A judge of the 195th Judicial District Court of Dallas County informally ordered the State’s attorney to arrange a psychiatric examination of Smith by Dr. James P. Grigson to determine Smith’s competency to stand trial.3
Dr. Grigson interviewed Smith in jail for approximately 90 minutes and concluded that he was competent to stand trial.4 In a letter to the trial judge that was filed with the court’s papers, Dr. Grigson reported that Smith was aware of the difference between right and wrong and able to aid an attorney in his defense.5 Smith was then tried by a jury and convicted of murder.6
Texas capital cases require bifurcated proceedings consisting of a guilt phase and a penalty phase before the same jury.7 At the penalty phase the jury must answer three questions on which the State bears the burden of proof beyond a reasonable doubt.8 One of those questions asks whether there is a probability that the defendant would commit criminal acts of violence constituting a continuing threat to society.9
At the commencement of Smith’s sentencing hearing the State rested subject to the right to reopen.10 Defense counsel then presented three lay witnesses.11 The State called Dr. Grigson as a witness after those presentations.12 Defense counsel objected because Dr. Grigson’s name did not appear on the State’s witness list.13 In a hearing outside the jury’s presence Dr. Grigson stated that he had not obtained permission from Smith’s attorneys to examine him, that he had discussed his conclusions with the prosecutor, and that the prosecutor had requested his testimony approximately five days earlier.14 The trial judge denied the motion to exclude the testimony and recessed for one hour.15
Dr. Grigson then testified before the jury that Smith was a very severe sociopath who would continue his previous behavior, that his condition would only get worse, that he had no regard for another human being’s life or property, that no treatment would modify his behavior, that he would commit other criminal acts if given the opportunity, and that he had no remorse.16 This testimony rested on information derived from the 90-minute competency examination.17 The jury answered the three questions affirmatively, and under Texas law the death sentence was mandatory.18
The Texas Court of Criminal Appeals affirmed Smith’s conviction and death sentence.19 After the Supreme Court denied certiorari, Smith unsuccessfully sought a writ of habeas corpus in Texas state courts and then petitioned for relief in the United States District Court for the Northern District of Texas.20 The District Court vacated the death sentence.21 The United States Court of Appeals for the Fifth Circuit affirmed, and the Supreme Court granted certiorari.22
Whether the prosecution’s use of psychiatric testimony at the sentencing phase of respondent’s capital murder trial to establish his future dangerousness violated his Fifth Amendment privilege against compelled self-incrimination?23
The Fifth Amendment privilege against compelled self-incrimination, made applicable to the states through the Fourteenth Amendment, protects a defendant from being made the instrument of his own punishment.24 The privilege applies with equal force to the penalty phase of a capital trial.25 Statements made during a court-ordered competency examination are testimonial when used to prove future dangerousness.26 The privilege requires that the defendant receive Miranda warnings before the examination if the results may later be introduced against him at sentencing.27
Yes. The privilege was violated because Smith was never advised of his right to remain silent before Dr. Grigson conducted the court-ordered competency examination in the Dallas County Jail.28 Dr. Grigson’s testimony at the penalty phase rested directly on Smith’s account of the crime and his lack of remorse during the ninety-minute interview.29 The State then used that testimony as its sole evidence to prove the statutory issue of future dangerousness beyond a reasonable doubt.30
The examination was not confined to competency.31 The State affirmatively employed the unwarned statements to obtain the death penalty after the jury had already convicted Smith of murder.32
The admission of Dr. Grigson’s testimony at the penalty phase therefore violated Smith’s Fifth Amendment rights, and the death sentence cannot stand.33
Related opinions on this issue
Justice Marshall joined the opinion of the Court in all respects except Part II-C.34 He adhered to his consistent view that the death penalty is under all circumstances cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments.35 For that reason he could not join the suggestion in Part II-C that the penalty may ever be constitutionally imposed.36
His concurrence underscores that the Fifth and Sixth Amendment violations identified by the majority provide an independent basis for vacating the sentence even while he maintains his broader categorical opposition to capital punishment.37
Whether the pretrial psychiatric examination proceeded in violation of respondent’s Sixth Amendment right to the assistance of counsel?38
The Sixth Amendment right to the assistance of counsel, made applicable to the states through the Fourteenth Amendment, attaches once adversarial judicial proceedings have been initiated by indictment or formal charge.39 A psychiatric examination that may supply evidence of future dangerousness at a capital sentencing hearing constitutes a critical stage of the prosecution.40 Counsel must be notified in advance so the defendant can receive informed advice on whether to submit.41
Yes. Smith’s Sixth Amendment right had attached because he had already been indicted for murder and counsel had been appointed to represent him when Dr. Grigson examined him at the Dallas County Jail.42 Defense counsel received no advance notice that the examination would extend beyond competency to the issue of future dangerousness.43 Nor did counsel receive notice that the findings could be used affirmatively by the State to seek the death penalty.44
Smith was therefore denied the guiding hand of counsel in making the life-or-death decision whether to submit to the examination and what use could be made of its results.45
The psychiatric examination therefore violated Smith’s Sixth Amendment right to the assistance of counsel, providing an independent ground for vacating the death sentence.46
Related opinions on this issue
Justice Stewart concurred in the judgment solely on Sixth Amendment grounds.47 He concluded that the Sixth and Fourteenth Amendments as applied in Massiah v. United States and Brewer v. Williams made impermissible the introduction of Dr. Grigson’s testimony against the respondent at any stage of his trial.48 The examination took place without previous notice to counsel after indictment and appointment of counsel.49
Because that violation alone required affirmance of the judgment vacating the death sentence, Justice Stewart saw no need to reach the Fifth Amendment issues addressed by the majority.50
Justice Rehnquist concurred in the judgment because under Massiah v. United States respondent’s counsel should have been notified prior to Dr. Grigson’s examination.51 Counsel was entitled to be made aware of the psychiatrist’s activities involving his client and to advise and prepare his client accordingly.52 He emphasized that this conclusion does not mean respondent had any right to have counsel present at the examination itself.53
Justice Rehnquist declined to join the Court’s resolution of the Fifth Amendment issues because he was not convinced that any Fifth Amendment rights were implicated once the defendant had already been convicted.54