US SUPREME COURT DECISIONS

Under Texas law, an individual may not be sentenced to death unless the State proves that there is a probability that he would commit future acts of violence that would constitute a continuing threat to society. Following petitioner Powell's arrest for capital murder, a state trial court ordered that a psychiatric examination be conducted to determine his competency to stand trial and sanity at the time of the offenses. Neither he nor his counsel was notified that he would be examined on the issue of future dangerousness, and he was not informed of his right to remain silent. He was convicted. At his sentencing hearing, the doctors who had examined him testified on the issue of future dangerousness, and he was sentenced to death. The Court of Appeals declined to vacate the sentence, holding that, by introducing psychiatric testimony in support of an insanity defense, Powell had waived his Fifth and Sixth Amendment right to object to the State's use of the testimony, inter alia, to satisfy its burden of proving future dangerousness.

Held: The evidence of future dangerousness was taken in deprivation of Powell's Sixth Amendment right to the assistance of counsel. Under Estelle v. Smith, 451 U. S. 454, and Satterwhite v. Texas, 486 U. S. 249, once a defendant is formally charged, the right to counsel precludes a psychiatric examination concerning future dangerousness without notice to counsel. The lower court's holding that Powell waived his Fifth Amendment privilege against self-incrimination provides no basis for concluding that he waived this separate Sixth Amendment right, and the court erred in conflating the two Amendments' analyses.

Certiorari granted; 767 S.W.2d 75, reversed.