SUPREME COURT OF THE UNITED STATES
PENRY v. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, INSTITUTIONAL
DIVISION
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT
 No. 00-6677. Argued March 27, 2001­Decided June 4, 2001
 In 1989, this Court held that petitioner Penry had been sentenced to death in violation of
the Eighth Amendment. At the close of the penalty hearing during Penry's first Texas
capital murder trial, the jury was instructed to answer three statutorily mandated "special
issues": (1) whether Penry's conduct was committed deliberately and with the reasonable
expectation that death would result; (2) whether it was probable that he would be a
continuing threat to society; and (3) whether the killing was unreasonable in response to
any provocation by the deceased. Although Penry had offered extensive evidence that he
was mentally retarded and had been severely abused as a child, the jury was never told it
could consider and give mitigating effect to that evidence in imposing sentence. In
holding that the jury had not been adequately instructed with respect to the mitigating
evidence, the Court found, among other things, that none of the special issues was broad
enough to allow the jury to consider and give effect to that evidence. Penry v. Lynaugh,
492 U.S. 302  (1989) (Penry I). When Texas retried Penry in 1990, he was again found
guilty of capital murder. During the penalty phase, the defense again put on extensive
evidence regarding Penry's mental impairments and childhood abuse. On direct
examination by the defense, a clinical neuropsychologist, Dr. Price, testified that he
believed Penry suffered from organic brain impairment and mental retardation. During
cross-examination, Price cited as one of the records he had reviewed in preparing his
testimony a psychiatric evaluation prepared by Dr. Peebles in 1977 at the request of
Penry's then-counsel to determine Penry's competency to stand trial on an earlier charge
unrelated to the murder at issue. Over a defense objection, Price recited a portion of that
evaluation which stated that it was Peebles' professional opinion that if Penry were
released, he would be dangerous to others. When it came time to submit the case to the
jury, the trial court instructed the jury to determine Penry's sentence by answering the
same three special issues that were at issue in Penry I. The trial court then gave a
"supplemental instruction": "[W]hen you deliberate on the ... special issues, you are to
consider mitigating circumstances, if any, supported by the evidence ... . If you find
[such] circumstances ... , you must decide how much weight they deserve, if any, and
therefore, give effect and consideration to them in assessing the defendant's personal
culpability at the time you answer the special issue. If you determine, when giving effect
to the mitigating evidence, if any, that a life sentence, as reflected by a negative finding
to the issue under consideration, rather than a death sentence, is an appropriate response
to [Penry's] personal culpability ... , a negative finding should be given to one of the
special issues." The verdict form itself, however, contained only the text of the three
special issues, and gave the jury two choices with respect to each: "Yes" or "No."
Because the jury unanimously answered "yes" to each special issue, the court sentenced

SUPREME COURT OF THE UNITED STATES
 No. 00-6677
 JOHNNY PAUL PENRY, PETITIONER v. GARY L.
JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, INSTITUTIONAL DIVISION
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[June 4, 2001]
Justice O'Connor delivered the opinion of the Court.
In 1989, we held that Johnny Paul Penry had been sentenced to death in violation of the
Eighth Amendment  because his jury had not been adequately instructed with respect to
mitigating evidence. See Penry v. Lynaugh, 492 U.S. 302  (1989) (Penry I). The State of
Texas retried Penry in 1990, and that jury also found him guilty of capital murder and
sentenced him to death. We now consider whether the jury instructions at Penry's
resentencing complied with our mandate in Penry I. We also consider whether the
admission into evidence of statements from a psychiatric report based on an uncounseled
interview with Penry ran afoul of the Fifth Amendment.
I Johnny Paul Penry brutally raped and murdered Pamela Carpenter on October 25, 1979.
In 1980, a Texas jury found him guilty of capital murder. At the close of the penalty
hearing, the jury was instructed to answer three statutorily mandated "special issues":
" `(1) whether the conduct of the defendant that caused the death of the deceased was
committed deliberately and with the reasonable expectation that the death of the deceased
or another would result;
" `(2) whether there is a probability that the defendant would commit criminal acts of
violence that would constitute a continuing threat to society; and
" `(3) if raised by the evidence, whether the conduct of the defendant in killing the
deceased was unreasonable in response to the provocation, if any, by the deceased.' " Id.,
at 310 (quoting Tex. Code Crim. Proc. Ann., Art. 37.071(b) (Vernon 1981 and Supp.
1989)).
The jury answered "yes" to each issue and, as required by statute, the trial court
sentenced Penry to death. 492 U.S., at 310-311.
Although Penry had offered extensive evidence that he was mentally retarded and had
been severely abused as a child, the jury was never instructed that it could consider and
give mitigating effect to that evidence in imposing sentence. Id., at 320. Nor was any of
the three special issues broad enough in scope that the jury could consider and give effect
to the mitigating evidence in answering the special issue. Id., at 322-325. While Penry's
mental retardation was potentially relevant to the first special issue­whether he had acted
deliberately­we found no way to be sure that the jurors fully considered the mitigating
evidence as it bore on the broader question of Penry's moral culpability. Id., at 322-323.
As to the second issue­whether Penry would be a future danger­the evidence of his
mental retardation and history of abuse was "relevant only as an aggravating factor." Id.,
at 323 (emphasis in original). And the evidence was simply not relevant in a mitigating
way to the third issue