The Right to Voice Reprised

This article appears in a symposium issue of Seton Hall Law Review on courtroom epistemology. In Proving the Unprovable: The Role of Law, Science and Speculation in Adjudicating Culpability and Dangerousness, I argued that criminal defendants ought to be able to present speculative psychiatric testimony if the expert has followed a routinized evaluation process that addresses the relevant legal criterion, an argument based in part on the position that the Constitution can be read to entitle defendants to tell their exculpatory mental state stories. In a recent essay, Professor Lillquist takes aim at this latter rationale, which I called the right to voice. He believes that the right to voice cannot be found in the Constitution or the Supreme Court’s construction of the Constitution, and that in any event recognition of such a right would be a bad idea because it would increase the chance of inaccurate outcomes. In response, this article bolsters the argument that there is a limited constitutional right to tell exculpatory mental state stories through experts and shows why fear that such a right will generate "inaccurate" verdicts is unfounded. In the course of doing so, it explains why these arguments apply only to psychiatric evidence and do not require or lead to a more generalized right to present a defense, which appears to be the real concern underlying Professor Lillquist’s essay. Nonetheless, the concluding section of the article departs from the psychiatric context to suggest some new reasons why the notion of a more generalized right to voice at least ought to be on the table