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"Slobogin, Christopher, 1951-"
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Proving the unprovable : the role of law, science, and speculation in adjudicating culpability and dangerousness
Culpability and dangerousness are the two central issues raised by any sensible societal attempt to deal with antisocial behavior. For the past century, mental health professionals have been heavily involved in helping the law address these issues. But critics deride clinical testimony about culpability as disguised storytelling and tar expert predictions by comparing them unfavorably to coin flipping. They have been aided in these efforts by a series of decisions from the U.S. Supreme Court that appear to impose a relatively high threshold for expert testimony, one that requires that the testimony’s underlying assumptions be verified as reliable through scientific or other testing. Although many courts have yet to consider the implications of those decisions for behavioral science testimony, an increasing number of lower court decisions suggest that a more restrictive evidentiary regime is in the offing. This book is an effort to sort out whether that development would be a good thing. How we should go about proving culpability and dangerousness depends on a number of variables, including the governing substantive law, our ability to answer the questions that this law generates, the extent to which judges and juries can arrive at sensible conclusions without the help of experts, and whether the testimony proffered is from the government or from the person whose liberty is at stake. The book concludes that culpability and dangerousness are socially constructed concepts that probably cannot, and in any event should not, be determined solely through the scientific method.
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