The adversary process and social science in the courts: Barefoot v. Estelle

Abstract

In Barefoot v. Estelle, the Supreme Court admitted psychiatric testimony of dangerousness in the death penalty phase of a trial for a capital offense, despite substantial empirical evidence such predictions were more often wrong than right, and despite opposition from the American Psychiatric Association stating that such predictions were scientifically unacceptable and possibly unethical. The Court's opinion relied on adversary process to protect against the unreliability of expert testimony. Evidence showing the sources of unreliability in clinical examination, and that adversarial process increases the unreliability of professional judgments is reviewed, and implications for the developing relationship between law and social science are explored.