"Proving the Future in Criminal Cases"

The title of this post is the title of this new essay now available via SSRN authored by Christopher Slobogin. Here is its abstract:

Expert opinion about dangerousness — the risk of reoffending — is commonly introduced at sentencing, criminal commitment proceedings, and some types of pretrial detention hearings.  This Essay argues that the rules governing the admissibility of scientific evidence should apply to this testimony and that, on that assumption, such evidence must be (1) “material” (logically relevant, empirically generalizable, and epistemologically germane), (2) “probative” (a measure of accuracy, which is more stringent when the evidence is from an expert), (3) helpful to the factfinder (through promoting “incremental validity”), and (4) presented in a non-prejudicial manner (i.e., in a way that minimizes the possibility it will be misused or misinterpreted).  Application of these rules to expert testimony about risk would have significant implications not only for its admissibility in criminal cases but also for the way that testimony is expressed, the law governing dangerousness, and the methods used to assess it.