'I've Got My Mind Made Up': How Judicial Teleology in Cases Involving Biologically Based Evidence Violates Therapeutic Jurisprudence

Abstract

involving, inter alia, the death penalty, 2 the insanity defense, 3 civil competency, 4 incompetency to stand trial, 5 questions related to malingering, 6 juvenile criminal procedure, 7 and criminal sentencing. 8 And I am not the only one to have pointed this out. 9 Courts are also teleological on the question of admission of evidence in accordance with the rulings in cases such as Daubert and Frye.o There is no reason to doubt Professor Susan Rozelle's glum conclusion that "the game of scientific evidence looks fixed."" 1 If scientific knowledge is, as Professors David Faigman, John Monahan and Christopher Slobogin have stated, "a product of research that applies generally to all similarly situated cases," 1 2 then judicial teleology flies directly in the face of that knowledge. 13

Trauma-informed forensic mental health assessment: Practical implications, ethical tensions, and alignment with therapeutic jurisprudence principles.

“…4 This bias can affect the way FMHEs and legal professionals attend to and the degree to which they believe the experiences of those with whom they interact. There is fairly extensive TJ literature on cognitive biases, their effects on judicial decision making (King et al, 2011), and suggested ways of remediating such biases (Perlin, 2017).…”

“…This is consistent with the “just-world fallacy” (Lerner, 1980)—a cognitive bias reflecting a belief in morality and fairness and that “bad things only happen to bad people.” 4 This bias can affect the way FMHEs and legal professionals attend to and the degree to which they believe the experiences of those with whom they interact. There is fairly extensive TJ literature on cognitive biases, their effects on judicial decision making (King et al, 2011), and suggested ways of remediating such biases (Perlin, 2017).…”

“…TJ seeks to ferret out biases, and to deal with the vulnerabilities of so much of the population in question. For example, the TJ literature provides insight on how to combat heuristic errors such as hindsight bias (Perlin, 2017; Wexler & Schopp, 1989), attribution bias (Chipiuk, 2005), group bias (Fink, 2008), essentialist bias (Berryessa, 2019), the legal system’s sanist bias (Perlin, 2003) and jury bias (Cucolo & Perlin, 2019). Although little has been written about TJ in connection to FMHA, Katz and Haldar (2016) laid out the following salient issues related to trauma-informed lawyering.…”

“But I Ain’t a Judge:” The Therapeutic Jurisprudence Implications of the Use of Nonjudicial Officers in Criminal Justice Cases

“…As I have written elsewhere, "An inquiry into therapeutic outcomes does not mean that therapeutic concerns 'trump' civil rights and civil liberties" (Perlin, 2000, p. 412). Therapeutic jurisprudence "look[s] at law as it actually impacts people's lives" (Winick, 2009, p. 535) and TJ supports "an ethic of care" (Perlin, 2008, p. 94, quoting, in part, Winick & Wexler, 2006. It attempts to bring about healing and wellness and to value psychological health (Perlin, 2008, p. 94, citing Winick, 2003.…”

“…Therapeutic jurisprudence "look[s] at law as it actually impacts people's lives" (Winick, 2009, p. 535) and TJ supports "an ethic of care" (Perlin, 2008, p. 94, quoting, in part, Winick & Wexler, 2006. It attempts to bring about healing and wellness and to value psychological health (Perlin, 2008, p. 94, citing Winick, 2003.…”