Redefining Probative Value

This chapter proposes that, when the testimony is about past mental state, probative value should be measured in terms of “generally accepted content validity,” which equates Daubert’s reliability test not with accuracy (which is impossible to gauge), but with the extent to which clinical opinion addresses the factors the law considers material. As a possible method of implementing this means of measuring probative value, the chapter discusses the recent suggestion of pragmatic psychologists that forensic specialists maintain a database of reports that the courts have considered useful. This database could be used to identify those clinical factors that courts deem important to assessing culpability and should accelerate the production of structured interview formats designed to address that issue. The chapter also examines the expert’s obligation to assure the reliability of information that forms the basis for clinical opinions, a topic that the courts have neglected despite the amendments to Rules 702 and 703, yet one which is just as important as the limits on inference-drawing that have been the focus of the critics.