Failed Explanations and Criminal Responsibility: Experts and the Unconscious

Abstract

They appear simply to assume that mental health expertise is reliable, valid, and relevant to legal decisionmaking; they therefore may be termed "method votaries."The method votaries admit that much of the "data" they would allow into evidence is scientifically soft or unverifiable, but they appear to justify its admission on three grounds.First, they uncritically assume the general scientific validity of theory and data. 17Second, they correctly note that the modern trend in evidence law is to expand greatly the scope of expert testimony and the competence of experts to offer conclusions on ultimate issues. 18 Third, they argue that, in view of the first two assertions, the necessity for the assessment of psychological functioning in criminal law decisionmaking requires the admission of quite imprecise mental health testimony. 19 By contrast, I claim that although the criminal law mti"St take subjectivity into account, this should not justify an "anything goes" criterion for admission of expert testimony.The law should exclude much mental health testimony from the criminal process because it is so unscientific that it cannot assist the factfinder.Indiscriminate admission of mental health testimony is inefficient, misleading, confusing, and sometimes prejudicial. 20 Under modern evidence law, the primary criterion for admission of testimony is whether it will assist the trier of fact to resolve the relevant issues. 21 In order to deem scientific evidence admissible, courts require that the validity of the science be established. 22 Expert evidence is generally admissible, however, if it is based on matters beyond the ken of laypersons.The increasingly permissive standards for the admissibility of expert testimony are justified on the grounds that the factfinder should have before it all the information that might reasonably aid its determination. 23 Weaknesses or deficiencies in the scientific basis for expert testimony or in the testimony itself are considered matters of weight rather than ad-17 Id. at 461-66.

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