Barefoot in Quicksand: The Future of "Future Dangerousness" Predictions in Death Penalty Sentencing in the World of Daubert and Kumho

To understand the Barefoot decision, it is necessary to examine Jurek v. Texas, an earlier case in which the Supreme Court upheld the constitutionality of using predictions of future dangerousness as an element in capital sentencing. I will begin by analyzing the background to Barefoot, and then the Barefoot case itself. I will consider how admissibility of future dangerousness testimony in capital cases may or may not have changed after the Supreme Court’s decisions in Daubert v. Merrell Dow Pharmaceuticals and Kumho Tire Co. v. Carmichael. I will argue that future dangerousness predictions in capital cases are an unconstitutional due process violation, and that they violate evidentiary principles requiring reliability and excluding evidence that is substantially misleading or prejudicial.

Finally, I will argue that we must re-think the Daubert/Kumho test for admissibility of expert testimony so as to preserve the insights of the Frye v. United States test and ensure that reliability becomes the keynote in both scientific and technical testimony.