Thursday, October 21, 2010
Christopher Slobogin (Vanderbilt Law School) has posted Psychological Syndromes and Criminal Responsibility on SSRN. Here is the abstract:
These two papers both focus on the intersection of the law of evidence with criminal responsibility doctrine, using as a springboard my book, Proving the Unprovable: The Role of Law, Science and Speculation in Adjudicating Culpability and Dangerousness. The first piece, Psychological Syndromes and Criminal Responsibility, appears in the Annual Review of Law and Social Science. It analyzes the admissibility of defense-proffered testimony about phenomena such as battered woman syndrome, combat stress syndrome, and XYY syndrome as well the admissibility of prosecution-proffered evidence about phenomena such as rape trauma syndrome and abused child syndrome. It emphasizes the need to assess, in each instance, materiality (the logical relationship of the evidence to the precise doctrine at issue-insanity, lack of mens rea, etc.), probative value (reliability), helpfulness (the extent to which the evidence adds to the fact-finder knowledge), and prejudice (the extent to which the evidence distracts or confuses the fact-finder). Thus, the ultimate admissibility decision involves consideration of the scope of the criminal law, the scientific methodology associated with the syndrome, the counter-intuitiveness of the evidence, and the role and capacities of juries.
The second piece, to appear in a symposium issue of Seton Hall Law Review with the title The Right to Voice Reprised, looks more closely at the probative value issue. Proving the Unprovable argued that criminal defendants ought to be able to present speculative psychiatric testimony if the expert has followed a routinized evaluation process that addresses the relevant legal criterion, an argument based in part on the position that the Constitution can be read to entitle defendants to tell their exculpatory mental state stories. In a recent essay, Professor Lillquist takes aim at this latter rationale, which I called the right to voice. He believes that the right to voice cannot be found in the Constitution or the Supreme Court’s construction of the Constitution, and that in any event recognition of such a right would be a bad idea because it would increase the chance of inaccurate outcomes. In response, this article bolsters the argument that there is a limited constitutional right to tell exculpatory mental state stories through experts and shows why fear that such a right will generate "inaccurate" verdicts is unfounded. In the course of doing so, it explains why these arguments apply only to psychiatric evidence and do not require or lead to a more generalized right to present a defense, which appears to be the real concern underlying Professor Lillquist’s essay. Nonetheless, the concluding section of the article departs from the psychiatric context to suggest some new reasons why the notion of a more generalized right to voice at least ought to be on the table.