The prediction of future behavior: The empty promises of expert clinical and actuarial testimony

Teoria Jurídica Contemporânea 1 (1):75-101 (2016)
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Abstract
Testimony about the future dangerousness of a person has become a central staple of many judicial processes. In settings such as bail, sentencing, and parole decisions, in rulings about the civil confinement of the mentally ill, and in custody decisions in a context of domestic violence, the assessment of a person’s propensity towards physical or sexual violence is regarded as a deciding factor. These assessments can be based on two forms of expert testimony: actuarial or clinical. The purpose of this paper is to examine the scientific and epistemological basis of both methods of prediction or risk assessment. My analysis will reveal that this kind of expert testimony is scientifically baseless. The problems I will discuss will generate a dilemma for factfinders: on the one hand, given the weak predictive abilities of the branches of science involved, they should not admit expert clinical or actuarial testimony as evidence; on the other hand, there is a very strong tradition and a vast jurisprudence that supports the continued use of this kind of expert testimony. It is a clear case of the not so uncommon conflict between science and legal tradition.
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