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Full-Text Articles in Law

Tainted Provenance: When, If Ever, Should Torture Evidence Be Admissible?, Michael P. Scharf Jan 2008

Tainted Provenance: When, If Ever, Should Torture Evidence Be Admissible?, Michael P. Scharf

Washington and Lee Law Review

This Article examines whether there should be exceptions to the international exclusionary rule for evidence obtained by torture, and if so, how those exceptions should be crafted to avoid abuse. Rather than explore the question in the hotly debated milieu of terrorist prosecutions, this Article analyzes and critiques three possible exceptions to the torture evidence exclusionary rule in the context of whether the newly established U.N. Cambodia Genocide Tribunal should admit evidence of the Khmer Rouge command structure that came from interrogation sessions at the infamous Tuol Sleng torture facility: (1) that the exclusionary rule should not apply to evidence …


Experts, Mental States, And Acts, Christopher Slobogin Jan 2008

Experts, Mental States, And Acts, Christopher Slobogin

Vanderbilt Law School Faculty Publications

This article, written for a symposium on "Guilt v. Guiltiness: Are the Right Rules for Trying Factual Innocence Inevitably the Wrong Rules for Trying Culpability?," argues that the definition of expertise in the criminal justice system, derived in the federal courts and in most states from Daubert v. Merrell Dow Pharmaceuticals Co., should vary depending on whether the issue involved is past mental state or past conduct. While expert psychological testimony about past acts ought to be based on scientifically verifiable assertions, expert psychological testimony about subjective mental states relevant to criminal responsibility need not meet the same threshold. This …