Warnings by expert witnesses unscientific, critics say, while civil courts have tough standard on reliability. That stark question is increasingly being raised by lawyers, legal scholars and, most recently, a highly regarded conservative federal judge. It is at the heart of appeals in two pending death penalty cases, including that of a man, Miguel Angel Flores, who is scheduled to be executed this week. And it could reopen a significant front in the legal wars over capital punishment. At issue is how much leeway scientists, doctors and other expert witnesses should have to present opinions to juries.
Prosecutors frequently use psychiatric experts to offer their opinions on that question.
Testimony of that sort has been used in cases of more than 100 people on death row in Texas alone, according to a recent study. The gap between what is allowed in the two types of cases is at the heart of appeals being filed by lawyers for Flores and another Texas inmate, Joe Lee Guy. He testified against Flores and Guy. There are at least 122 death row inmates in Texas whose trials included testimony from a psychiatrist about future dangerousness, according to a search of court records by the Texas Defender Service, a nonprofit organization that specializes in capital appeals. In the Flores and Guy cases, Griffith said, there was an overwhelming likelihood that the defendants would commit violent acts in the future.