September 20, 2006
Special Admissibility Rules
Occasionally states will establish special admissibility criteria different from, and generally more liberal than, those that would be imposed by the courts. In Commonwealth v. Conklin, 897 A.2d 1168 (Pa. 2006) the defendant was a convicted sex offender classified as a "sexually violent predator" (SVP). Under Pennsylvania law, such a person suffers from a "mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses." The defendant objected to the qualifications of the state’s expert, a clinical social worker, who testified that based on his "diagnostic impressions" that the defendant fit this clinical diagnosis. However, the Supreme Court held that the state was not required to provide the testimony of a licensed psychiatrist or psychologist because the statute in question stated that the opinion of a qualifying "criminal justice expert" suffices. As to a Frye challenge that the statute's admissibility criteria for expert testimony on SVP status "does not square with prevailing standards and methodology in the psychological and psychiatric diagnostic communities," the court quotes an earlier opinion that held the statute simply does not require the state to meet the diagnostic standards that are commonly accepted in the mental health field. Absent this statutory provision, it is not clear whether the court would have found the expert to be qualified to make this diagnosis.
Setting aside the question of whether there is research supporting the proposition that anyone can make a SVP diagnosis with any accuracy, the case raises the interesting question of how often states pass specific statutes or rules of evidence designed to sidestep ordinary admissibility criteria. See, for example, West's Ann.Cal.Evid.Code § 1107, admitting testimony on the effects of "intimate partner battering."
It would be useful to have a census of such statutes to better understand the circumstances in which the legislature feels compelled to take this step. I would be very interested in hearing about such statutes.
September 18, 2006
Paying for Pollution
One of the basic reasons why we pollute the planet at the rate we do is quite simple. We seemingly don't have to pay any of the costs. If I throw my garbage over my fence onto my neighbor's property, I don't bear the costs associated with cleaning it up -- at least until my neighbor comes over to punch me in the nose. Similarly, if I dump my garbage in the public domain, I am not forced to internalize any costs for the damage I cause. The principle operates similarly when a State produces air pollution that causes acid rain in another state. Effectively, the state is simply dumping its garbage over its fence. If we actually had to pay for the costs (as we inevitably do in effects such as global warming), we might pollute less and make better choices. This very basic idea has caught on in Europe, where companies are increasingly paying for the damage they do to the environment in the form of offsets. If a company's employees are responsible for X amount of carbon dioxide emissions, due to their air travel, the company pays an equivalent amount in nonpolluting energy investments. It's not perfect, but it's better than the status quo. See Article Here. It's also better than a punch in the nose, which appears to be what "mother nature" is going to give us if we continue to pollute at current rates.