The Case for Informed Speculation

Abstract

Abstract This chapter takes issue with those who argue that clinical culpability testimony should be prohibited or severely circumscribed. It argues that even though this testimony often is, at best, informed speculation, much of it should nonetheless be considered sufficiently reliable, given the lack of viable alternatives and the criminal accused’s right to voice. However, it also makes a distinction between opinions about past mental state (e.g. insanity, diminished capacity, and diminished responsibility) and opinions about the conduct (e.g. character used to prove innocence) because the latter is more amenable to the type of scientific study that Daubert mandates.