Comments on Swift and Slobogin: Mental State Evidence

16 Pages Posted: 11 Dec 2008

Date Written: December 8, 2008


Excellent, thought-provoking articles have the capacity to inspire readers to take up their own pens or computers. The Articles published in the Guilt vs. Guiltiness Symposium of the Seton Hall Law Review are definitely of that quality. They have prompted in me a number of reflections, a few of which I have set forth below, concerning two of the Articles - Christopher Slobogin's and Eleanor Swift's.

These two Articles have much in common. Each concentrates its fire on a particular evidentiary exclusionary rule when applied to bar pieces of a criminal defendant's evidence of his state of mind. Professor Slobogin argues that the full Daubert scientific reliability rule should not apply to a criminal defendant's expert psychological evidence of his past mental state because such states are not susceptible of strict scientific proof. Professor Swift deplores what she believes is a defense-evidence-restricting misinterpretation of the hearsay exception for defendant's state of mind. Both base their arguments on the narrative or story-telling view of trials. Because juries are in the business of choosing among alternative, plausible stories of guilt and innocence, a criminal defendant should be able to tell, with some degree of richness, his story of what unfolded and the kind of person he is. The authors allege these rules or rulings prevent a defendant from doing so.

Both Articles are finely nuanced contributions to the field and provide useful perspectives on some vexing problems. But I think they both have implications that go well beyond the particular evidentiary rules they address and well beyond evidence offered by a criminal defendant. Further, they make some assumptions about what present evidentiary law provides, thereby underplaying possible alternative readings of that law.

Keywords: evidence, daubert, scientific evidence

Suggested Citation

Rothstein, Paul F., Comments on Swift and Slobogin: Mental State Evidence (December 8, 2008). Seton Hall Law Review, Vol. 38, 2008, Georgetown Public Law Research Paper No. 1313267, Available at SSRN:

Paul F. Rothstein (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

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