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University of Pennsylvania Law Review

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dangerousness predictions, due process, Fifth Amendment, evidence


Health Law and Policy | Law


The defendant-first approach advocated in this Article is more difficult to implement than either the current policy admitting any proffered expert testimony or the exclusionary reform advanced by many commentators. It requires some mechanism for apprising the state when the defense intends to use clinical prediction testimony. When no such intent is registered, it demands that any other clinical testimony, whether offered by the state or the defense, be carefully monitored to insure that the dangerousness issue is not raised; it may require revamping other procedures as well.2 " But the defendant-first approach also presents the factfinder with the most reliable, most relevant, and least prejudicial information on the dangerousness issue: hard actuarial data and proof of prior bad acts. At the same time, it does not foreclose the defense from presenting clinically obtained and combined information on the dangerousness issue. Moreover, since the defense may frequently elect not to use clinical prediction testimony, it should force the state to generate alternative sources of information on dangerousness;in particular, it should improve the art of prediction by providing an incentive to develop hard actuarial data. Finally, the defendant-first approach conforms more closely than either wholesale admission or exclusion with due process notions of fairness and fifth amendment selfincrimination jurisprudence. Most significantly, the aforementioned need to have the defense's expert testify first so as to permit the judge to gauge the appropriate scope of the prosecution's rebuttal may necessitate changes in typical practice. See supra note 201.



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