Proving the Unprovable: The Role of Law, Science, and Speculation in Adjudicating Culpabilty and Dangerousness

PROVING THE UNPROVABLE: THE ROLE OF LAW, SCIENCE, AND SPECULATION IN ADJUDICATING CULPABILITY AND DANGEROUSNESS, Chpt. 1, pp. 15-18, Oxford University Press, 2006

4 Pages Posted: 28 Mar 2007

Abstract

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.

The second half of the first chapter to the book can be found at the link below. Comments on the book include the following:

Should experts stop trying to answer unanswerable questions? In Proving the Unprovable, Professor Slobogin takes on this profoundly important question, and offers an insightful, readable, and persuasive argument for a liberal approach to clinical mental health testimony... Proving the Unprovable is a major contribution to our understanding of the law of expert testimony. Richard Bonnie, University of Virginia Law School

In Proving the Unprovable, Professor Slobogin has done the undoable: he has produced a probing critique of the legal rules for admitting expert mental health testimony that had me turning the pages as if it were a suspense novel. After trenchantly analyzing current standards for admissibility, he suggests innovative approaches to protect the reasonable contributions that mental health experts can make. I doubt that any expert, no matter how experienced, who reads this book will view his or her task on the witness stand in quite the same way again. Paul S. Appelbaum, MD, Columbia University College of Physicians and Surgeons

Christopher Slobogin's new book on two of the most challenging questions the law poses for itself - the questions of culpability and dangerousness - and the role of mental health experts in trying to answer those questions, is classic Slobogin: Thoroughly informed, candid, complex and subtle, and yet exceptionally clear and cogent. Michael J. Saks, Professor of Law and Psychology, Arizona State University.

Keywords: expert testimony, Daubert, Frye, culpability, dangerousness, insanity, sexual predators, prediction, risk assessment, syndrome testimony, utlimate issue testimony

Suggested Citation

Slobogin, Christopher, Proving the Unprovable: The Role of Law, Science, and Speculation in Adjudicating Culpabilty and Dangerousness. PROVING THE UNPROVABLE: THE ROLE OF LAW, SCIENCE, AND SPECULATION IN ADJUDICATING CULPABILITY AND DANGEROUSNESS, Chpt. 1, pp. 15-18, Oxford University Press, 2006, Available at SSRN: https://ssrn.com/abstract=971802

Christopher Slobogin (Contact Author)

Vanderbilt University - Law School ( email )

131 21st Avenue South
Nashville, TN 37203-1181
United States

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