CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Friday, March 17, 2017

Perlin on Biologically Based Evidence and Therapeutic Jurisprudence

PerlinMichael L. Perlin (New York Law School) has posted 'I've Got My Mind Made Up': How Judicial Teleology in Cases Involving Biologically Based Evidence Violates Therapeutic Jurisprudence on SSRN. Here is the abstract:

Courts are, and have always been, teleological in cases involving litigants with mental disabilities. By “teleological,” I refer to outcome-determinative reasoning; social science that enables judges to satisfy predetermined positions is privileged, while data that would require judges to question such ends are rejected. In this context, judges treat biologically-based evidence in criminal cases involving questions of mental disability law so as to conform to their pre-existing positions. This applies to cases involving questions of the death penalty, the insanity defense, civil competency, incompetency to stand trial, questions related to malingering, and criminal sentencing, and more.

In this paper, I will consider what the implications of this behavior are for future criminal procedure developments, and will show how this behavior violates the basic precepts of therapeutic jurisprudence.

First, I will consider a range of teleological judicial behaviors. Then, I will consider how biologically-based evidence (including, but not limited to neuroscience evidence, is especially susceptible to these sorts of misjudgments, with a specific focus on how this damages the application of constitutional criminal procedure doctrines. Finally, I will consider how this behavior flies in the face of the basic tenets of therapeutic jurisprudence.

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