Can a psychologist testify at the punishment hearing of a non-capital case about the future dangerousness (lack thereof)? Best we can find is Miller v. State 770 sw2d 865. Law is old but appears to be valid.

With the acknowledgment that I am but an expert witness and neither prosecute, defend, nor do appellate work (in criminal matters), read on: I have a hunch that save for the fact that expert witness, mental health testimony, is rebuttal in nature, the short and practical answer is "of course" -- any testimony which is material and relevant can be presented. (And certainly I have done so for the past 25 years.) This is said with the caveat that I did not turn up a specific case on the issue of non-capital future dangerousness but many which were tangentially related. For example, the issue of what information can be presented is discussed � tangentially, and with respect to whether victim impact testimony could be presented, in Hernandez v. State, 726 S.W.2d 53, and Moreno v. State, 38 S.W.3d 774, 38 S.W.3d 774. Future dangerousness is a kind of 404 issue, i.e. character and expert testimony could be permitted. But, of course, the trial court has discretion in the matter.

In Moreno the court stated: "In non-capital felony cases, the State may present evidence "as to any matter that the court deems relevant to sentencing." See Tex. Code Crim. Proc. Ann. art. 37.07 �3(a) (Vernon Supp. 2000). Where such evidence constitutes victim impact testimony, the Court of Criminal Appeals has held that relevancy depends upon whether the testimony has "some bearing on the defendant's personal responsibility and moral guilt." Stavinoha v. State, 808 S.W.2d 76, 79 (Tex. Crim. App. 1991). Stated differently, the relevance of victim impact testimony in a non-capital felony case requires that such testimony have a "close, direct link to the circumstances of the case." Brooks v. State, 961 S.W.2d 396, 399 (Tex. App.--Houston [1st Dist.] 1997, no writ)."

In Buchanan V. Kentucky, 483 U.S. 402, (admittedly a death penalty case) the Supreme Court spoke about its decisions in Estelle and Barefoot, the thrust of which is that failure by the State�s expert to accurately represent the purpose of the examination could be construed as a 5th Amendment violation -- though the court also pointed out that when the defense has introduced evidence, justice would not be served were the State not allowed to put on rebuttal testimony. That is, when the defense puts on mental health testimony, the defendant waives any 5th Amendment rights to the State's use of mental health rebuttal testimony.