A new issue is available for the following APA journal:
Psychology, Public Policy, and Law
Volume 16, Issue 2
The hidden consequences of racial salience in videotaped interrogations and confessions.
Page 200-218
Showing posts with label law. Show all posts
Showing posts with label law. Show all posts
Thursday, May 27, 2010
iPost: Psychology, Public Policy, and Law - Volume 16, Issue 2
Saturday, February 13, 2010
Psychology and the Law symposium @ Eastern Psychological Association, March 5-6
The associations web page can be found here.
Technorati Tags: psychology, educational psychology, school psychology, forensic psychology, court decisions, criminal psychology, criminal defense, Atkins cases, MR, ID, mental retardation, intellectual disability, death penalty, capital punishment, IQ, IQ scores, ABA, American Bar Association, ISIR, psychology and law
Thursday, January 7, 2010
Law review article: Irreconcilable Differences? The Troubled Marriage of Science and Law (Haack, 2009)
Susan Haack
University of Miami - School of Law; University of Miami - Department of Philosophy
Law and Contemporary Problems, Vol. 72, No. 1, 2009
University of Miami Legal Studies Research Paper No. 2009-22
Because its business is to resolve disputed issues, the law very often calls on those fields of science where the pressure of commercial interests is most severe. Because the legal system aspires to handle disputes promptly, the scientific questions to which it seeks answers will often be those for which all the evidence is not yet in. Because of its case-specificity, the legal system often demands answers of a kind science is not well-equipped to supply; and, for related reasons, constitutes virtually the entire market for certain fields of forensic science and for certain psychiatric specialties. Because of its adversarial character, the law tends to draw in scientists who are more willing than most to give an opinion on less-than-overwhelming evidence; and the more often such a witness testifies, the more unbudgeably confident he may become in his opinion. Legal rules can make it impossible to bring potentially useful scientific information to light, and the legal penchant for “indicia” and the like can transform scientific subtleties into legal shibboleths. And because of its concern for precedent, and the desideratum of finality, the law sometimes lags behind scientific advances.
Keywords: expert testimony, Daubert, Joiner, science, inquiry vs. advocacy, fallibilism vs. finality, innovation vs. inertia
Technorati Tags: psychology, forensic psychology, forensic psychiatry, expert witnesses, expert testimony, scientific evidence, Daubert standard, science and law, neuroscience, law review articles
Monday, January 4, 2010
Two new law review articles posted: Perlin (2009) on therapeutic jurisprudence; use of international human rights laws in correctional conditions litigation
Two new law review articles (from the New York Law School Legal Studies Research Paper Series) have been added to the Law Review Article section of the ICDP blog. Although not directly addressing Atkins-specific issues, the articles do touch on a related issues such as mental health, therapeutic jurisprudence, mental disability, insanity, and prisoners rights. The first article is authored by Michael Perlin and the second by Perlin and Dlugacz. The titles and abstracts of the articles are listed below together with links to where the articles can be viewed and/or downloaded as PDF files.
‘Too Stubborn to Ever be Governed by Enforced Insanity’: Some Therapeutic Jurisprudence Dilemmas in the Representation of Criminal Defendants in Incompetency and Insanity Cases. (click here to view)
Michael L. Perlin
New York Law School
Abstract
Little attention has been paid to the importance between therapeutic jurisprudence (TJ) and the role of criminal defense lawyers in insanity and incompetency-to-stand-trial (IST) cases. That inattention is especially noteworthy in light of the dismal track record of counsel providing services to defendants who are part of this cohort of incompetency-status-raisers and insanity-defense-pleaders . On one hand, this lack of attention is a surprise as TJ scholars have, in recent years, turned their attention to virtually every other aspect of the legal system. On the other hand, it is not a surprise , given the omnipresence of sanism, an irrational prejudice of the same quality and character of other irrational prejudices that cause (and are reflected in) prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry, that infects both our jurisprudence and our lawyering practices, that is largely invisible and largely socially acceptable, and that is based predominantly upon stereotype, myth, superstition, and deindividualization, is sustained and perpetuated by our use of alleged "ordinary common sense" (OCS) and heuristic reasoning in an unconscious response to events both in everyday life and in the legal process.
In Part I of this paper, I will examine the literature that seeks to apply TJ principles to the criminal law process in general, drawing mostly on the work of Professor David Wexler. In Part II, I will consider why the lack of attention that I have referred to already is surprising (given TJ’s mandate and the fact that many TJ issues are inevitably raised in any insanity or IST case). In Part III, I will then consider why this lack of attention is not surprising, given the omnipresence of sanism. In Part IV, I will consider some of the actual counseling issues that might arise in these contexts, and offer some suggestions to lawyers representing clients in cases in which mental status issues may be raised.
I conclude the paper by concluding that we must rigorously apply therapeutic jurisprudence principles to each aspect of the insanity defense, so as to strip away sanist behavior, pretextual reasoning and teleological decision making from the insanity defense process, so as to enable us to confront the pretextual use of social science data in an open and meaningful way. This gambit would also allow us to address – in a more successful way than has ever yet been done – the problems raised by the omnipresence of ineffective counsel in cases involving defendants with mental disabilities.
'It's Doom Alone that Counts:' Can International Human Rights Law Be an Effective Source of Rights in Correctional Conditions Litigation? (click here to view)
Michael L. Perlin
New York Law School
Henry A. Dlugacz
New York Medical College - Graduate School of Health Sciences; New York Law School
Abstract
Over the past three decades, the US judiciary has grown increasingly less receptive to claims by convicted felons about the conditions of their confinement while in prison. Although courts have not articulated a return to the 'hands off' policy of the 1950s, it is clear that it has become significantly more difficult for prisoners to prevail in constitutional correctional litigation. The passage and aggressive implementation of the Prison Litigation Reform Act has been a powerful disincentive to such litigation in many areas of prisoners' rights law.
From the perspective of the prisoner, the legal landscape is more hopeful in matters that relate to mental health care and treatment. Here, in spite of a general trend toward more stringent applications of standards of proof and a reluctance to order sweeping, intrusive remedies, some courts have aggressively protected prisoners’ rights to be free from 'deliberate indifference' to serious medical needs, and to be free from excessive force on the part of prison officials.
A mostly hidden undercurrent in some prisoners' rights litigation has been the effort on the part of some plaintiffs' lawyers to look to international human rights doctrines as a potential source of rights, an effort that has met with some modest success. It gets support by the inclination of other courts to turn to international human rights conventions, even in nations where such conventions have not been ratified, as a kind of 'best practices' in the area.
The recent publication and subsequent ratification (though not, as of yet, by the United States) of the UN Convention on the Rights of Persons with Disabilities (CRPD) may add new support to those using international human rights documents as a basis for litigating prisoners' rights claims. To the best of our knowledge, there has, as of yet, been no scholarly literature on the question of the implications of the CRPD on the state of prisoners' rights law in a US domestic context. In this paper, we raise that question, and offer some tentative conclusions.
Technorati Tags: psychology, forensic psychology criminal justice, criminal psychology, therapeutic jurisprudence, international human rights, corretional conditions, mental health, mental disability, law review articles, ICDP blog
Saturday, January 2, 2010
Refusing to Present Evidence of Mental Retardation in an Effort to Preserve a Claim to a Jury Trial - Dangerous Gamble or a Strategic Masterpiece? Kevin Foley guest post
The following is a guest blog post by Kevin Foley, a regular contributor to the ICDP blog. The court decision discussed in this post, Bracey v. Pennsylvania (2009), has been posted to the Court Decisions section of the blog and is thus available for viewing and downloading. Please note that some of the original formatting provided by Kevin Foley in the original Word file sent to the blog (italic fonts, etc.) has been lost during copying and pasting from the file to the blog editor.
A reminder and invitation. All guest posts are published "as is" and do not necessarily reflect the opinion of the blog master. Also, I encourage others to submit guest blog post for possible publication .
Refusing to Present Evidence of Mental Retardation in an Effort to Preserve a Claim to a Jury Trial - Dangerous Gamble or a Strategic Masterpiece? Guest Post: Kevin Foley.
Edward Bracey was convicted in 1992 of murdering a Philadelphia police officer and sentenced to death. As is typically seen in death penalty litigation, after the conviction and sentence were affirmed on direct appeal, a claim was filed in the trial court alleging that the conviction should be overturned on the grounds of ineffective assistance of counsel. This type of collateral attack is often referred to as a claim for Post-Conviction Relief (PCR). Bracey’s PCR claim was denied, and the PCR claim was affirmed on appeal in 2001, prior to Atkins being decided. At the original PCR hearing, Bracey “presented the testimony of Drs. Carol Armstrong, Neil Blumberg and Barry Krop, who examined [him] five and six years after the shooting, and essentially concluded that [he] has suffered from long-standing organic brain damage.”[1] However, also testifying at the PCR hearing was a psychiatrist hired by the defense for the original murder trial, who “testified that he had not seen any evidence of organicity or any indication that [Bracey] had organic brain damage or a major mental illness during his evaluation of [him].”[2] Moreover, two mental health evaluations conducted seven and nine years before the murder “did not give rise to the conclusion that [Bracey] was brain damaged or mentally ill.” In a later proceeding, the state argued “that all three of appellant’s experts agreed at [this] PCRA hearing that appellant was not mentally retarded”.[3]
In August, 2002, Bracey filed a second PCR claim, this time asserting that he was mentally retarded. He also maintained that he was entitled to have a jury decide his Atkins claim. The court scheduled a 3-day non-jury hearing for the Atkins claim, which did not sit well with Bracey’s attorneys. They wrote to the judge and “declared that ‘in order not to prejudice Mr. Bracey’s jury trial argument, we will not be presenting further evidence for the court itself. Instead, we will rely on the evidence of record” . . . The letter also asked that the court certify the jury trial issue immediately for appeal.”[4]
At the hearing, Bracey continued to demand recognition of a constitutional right to a jury determination on the Atkins question, and his attorneys “alleged a ‘fear’ that ‘if we proceed to a court hearing in a case such as this, it would be either held against us in terms of the assertion of the 6th Amendment jury trial right, or it would be something that would be detrimental to the jury trial right.’”5 Consequently, Bracey’s attorneys refused to present any evidence, beyond what had already been presented during the first PCR hearing, bearing on the issue of whether he was mentally retarded.
In response to this ploy, the PCR “court concluded that appellant’s refusal to present any new and relevant evidence in support of his Atkins claim rendered it meritless and that fact, in turn, rendered the request for a jury trial moot.”[6]
Bracey’s attorneys took what appears at first glance to have been an inappropriate gamble. First, Bracey did not have to refuse to present any evidence in order to preserve his right to appeal the jury issue. Simply making the jury demand, and after the request was denied, then stating that they were proceeding under a preservation of the right to appeal the jury issue would seem to be more than adequate to protect the issue for a later appeal. Second, Bracey relied on an appellate case which dealt with a trial court refusing to allow an expert to testify;[7] however, the Pennsylvania Supreme Court pointed out that the PCR court’s ruling did not prevent Bracey from presenting mental retardation evidence. Bracey “was not barred by the PCRA court from presenting evidence; rather, he strategically declined to produce evidence.” Third, betting on the right to a jury trial, turned out to be misplaced. The U.S Supreme Court in Schriro v. Smith, 546 U.S. 6 (2005) held that it was up to the states to determine if they wanted to allow a jury right on Atkins claims – implying that there is no federal constitutional right to a jury determination on such claims.
Thus, at this point, one could easily argue that the PCR court was correct; that Bracey did not have a right to a jury trial; and that he waived any claim to present evidence on mental retardation beyond what had been presented in the first PCR hearing, which apparently included testimony by his own experts that he was not mentally retarded[.[8] In other words, he had his chance and lost. If he wanted any further review, he would have to file for habeas corpus review in the federal court system, which is supposed to involve a narrow and deferential standard of review. But this may have been exactly what Bracey’s attorneys wanted. According to the Pennsylvania Supreme Court,
Interestingly, the Pennsylvania high court seemed to agree with the Commonwealth. “We note that the Commonwealth’s concerns are not entirely implausible, as the Third Circuit has frequently declined to respect the procedural defaults this Court has employed in capital PCRA cases.”[10] In the end, the Pennsylvania Supreme Court did not fall for the bait; it called Bracey’s attorneys’ efforts “a game of capital ‘chicken’” and described the attorneys’ position as one which “was obviously risky and tenuous”. The court remanded the case to the trial court for a non-jury hearing on the Atkins claim.
In this circumstance, despite the Pennsylvania Supreme Court’s dissatisfaction with the “obduracy” of the defense counsel and the failure of the PCR court to take the “bull by the horns”, the potentially risky strategy did not backfire. Bracey almost ended up with a his apparently sought after de novo review in the federal court, and he still gets a full hearing on the Atkins claim in state court. And if he loses in state court and on subsequent appeal, the federal habeas route is still open to him, although whether he gets an evidenciary hearing on the Atkins claim will have to wait to be seen. In a different state, in a different federal circuit, however, Bracey’s strategy could have easily backfired.
Footnotes
1 Commonwealth v. Bracey, 568 Pa. 264, 277, 795 A.2d 935 (Pa. 2001).
2 Id.
3 Commonwealth v. Bracey, ___ Pa. __, slip op. No. 565-CAP (Dec. 28, 2009), at pg. 3.
4 Id. at pg. 4.
5 Id. at pg. 5.
6 Id. at pg. 7.
7 Commonwealth v. Banks, 943 A. 2d 230 (Pa. 2007).
8 In what might have been an effort to deal with this negative evidence, Bracey requested that the Pennsylvania Supreme Court remand the matter to allow an assessment using “the new Wechsler Adult Intelligence Scale, Fourth Edition (“WAIS-IV”) test. . . Appellant produces written declarations from the three experts who testified at the 1998 PCRA hearing, stating that the WAIS-IV is an improved and updated test, which would greatly aid the Court in making a mental retardation determination.” Commonwealth v. Bracey, ___ Pa. __, slip op. No. 565-CAP (Dec. 28, 2009), at pg. 11, n. 6.
9 Id. at pg. 13-14 (record citation omitted).
10 Id. at n.7
Technorati Tags: psychology, forensic psychology, criminal psychology, criminal justice, Atkins cases, MR, ID, mental retardation, intellectual disability, criminal justice, ABA, American Bar Association, capital punishment, death peantly
A reminder and invitation. All guest posts are published "as is" and do not necessarily reflect the opinion of the blog master. Also, I encourage others to submit guest blog post for possible publication .
Refusing to Present Evidence of Mental Retardation in an Effort to Preserve a Claim to a Jury Trial - Dangerous Gamble or a Strategic Masterpiece? Guest Post: Kevin Foley.
Edward Bracey was convicted in 1992 of murdering a Philadelphia police officer and sentenced to death. As is typically seen in death penalty litigation, after the conviction and sentence were affirmed on direct appeal, a claim was filed in the trial court alleging that the conviction should be overturned on the grounds of ineffective assistance of counsel. This type of collateral attack is often referred to as a claim for Post-Conviction Relief (PCR). Bracey’s PCR claim was denied, and the PCR claim was affirmed on appeal in 2001, prior to Atkins being decided. At the original PCR hearing, Bracey “presented the testimony of Drs. Carol Armstrong, Neil Blumberg and Barry Krop, who examined [him] five and six years after the shooting, and essentially concluded that [he] has suffered from long-standing organic brain damage.”[1] However, also testifying at the PCR hearing was a psychiatrist hired by the defense for the original murder trial, who “testified that he had not seen any evidence of organicity or any indication that [Bracey] had organic brain damage or a major mental illness during his evaluation of [him].”[2] Moreover, two mental health evaluations conducted seven and nine years before the murder “did not give rise to the conclusion that [Bracey] was brain damaged or mentally ill.” In a later proceeding, the state argued “that all three of appellant’s experts agreed at [this] PCRA hearing that appellant was not mentally retarded”.[3]
In August, 2002, Bracey filed a second PCR claim, this time asserting that he was mentally retarded. He also maintained that he was entitled to have a jury decide his Atkins claim. The court scheduled a 3-day non-jury hearing for the Atkins claim, which did not sit well with Bracey’s attorneys. They wrote to the judge and “declared that ‘in order not to prejudice Mr. Bracey’s jury trial argument, we will not be presenting further evidence for the court itself. Instead, we will rely on the evidence of record” . . . The letter also asked that the court certify the jury trial issue immediately for appeal.”[4]
At the hearing, Bracey continued to demand recognition of a constitutional right to a jury determination on the Atkins question, and his attorneys “alleged a ‘fear’ that ‘if we proceed to a court hearing in a case such as this, it would be either held against us in terms of the assertion of the 6th Amendment jury trial right, or it would be something that would be detrimental to the jury trial right.’”5 Consequently, Bracey’s attorneys refused to present any evidence, beyond what had already been presented during the first PCR hearing, bearing on the issue of whether he was mentally retarded.
In response to this ploy, the PCR “court concluded that appellant’s refusal to present any new and relevant evidence in support of his Atkins claim rendered it meritless and that fact, in turn, rendered the request for a jury trial moot.”[6]
Bracey’s attorneys took what appears at first glance to have been an inappropriate gamble. First, Bracey did not have to refuse to present any evidence in order to preserve his right to appeal the jury issue. Simply making the jury demand, and after the request was denied, then stating that they were proceeding under a preservation of the right to appeal the jury issue would seem to be more than adequate to protect the issue for a later appeal. Second, Bracey relied on an appellate case which dealt with a trial court refusing to allow an expert to testify;[7] however, the Pennsylvania Supreme Court pointed out that the PCR court’s ruling did not prevent Bracey from presenting mental retardation evidence. Bracey “was not barred by the PCRA court from presenting evidence; rather, he strategically declined to produce evidence.” Third, betting on the right to a jury trial, turned out to be misplaced. The U.S Supreme Court in Schriro v. Smith, 546 U.S. 6 (2005) held that it was up to the states to determine if they wanted to allow a jury right on Atkins claims – implying that there is no federal constitutional right to a jury determination on such claims.
Thus, at this point, one could easily argue that the PCR court was correct; that Bracey did not have a right to a jury trial; and that he waived any claim to present evidence on mental retardation beyond what had been presented in the first PCR hearing, which apparently included testimony by his own experts that he was not mentally retarded[.[8] In other words, he had his chance and lost. If he wanted any further review, he would have to file for habeas corpus review in the federal court system, which is supposed to involve a narrow and deferential standard of review. But this may have been exactly what Bracey’s attorneys wanted. According to the Pennsylvania Supreme Court,
“The Commonwealth hypothesizes that such a facially risky position suggests that appellant and his counsel have their strategic sights set on de novo habeas corpus review in the local federal courts, which appellant’s federal lawyers view as a more sympathetic forum in capital matters. Luring this Court into finding the Atkins claim waived, the Commonwealth argues, ‘would offer them their best long-term prospect for relief,’ since ‘if no Atkins hearing is held in state court, defense counsel will argue on habeas review that defendant is entitled to such a hearing in federal court. And, since it has been decades since the federal courts have upheld a sentence of death with respect to any Philadelphia prisoner who did not consent to be executed, they will find themselves in a remarkably favorable forum for that argument.’ The Commonwealth argues that this Court should reject this illegitimate strategy, and order a bench hearing on the mental retardation claim.”[9]
Interestingly, the Pennsylvania high court seemed to agree with the Commonwealth. “We note that the Commonwealth’s concerns are not entirely implausible, as the Third Circuit has frequently declined to respect the procedural defaults this Court has employed in capital PCRA cases.”[10] In the end, the Pennsylvania Supreme Court did not fall for the bait; it called Bracey’s attorneys’ efforts “a game of capital ‘chicken’” and described the attorneys’ position as one which “was obviously risky and tenuous”. The court remanded the case to the trial court for a non-jury hearing on the Atkins claim.
In this circumstance, despite the Pennsylvania Supreme Court’s dissatisfaction with the “obduracy” of the defense counsel and the failure of the PCR court to take the “bull by the horns”, the potentially risky strategy did not backfire. Bracey almost ended up with a his apparently sought after de novo review in the federal court, and he still gets a full hearing on the Atkins claim in state court. And if he loses in state court and on subsequent appeal, the federal habeas route is still open to him, although whether he gets an evidenciary hearing on the Atkins claim will have to wait to be seen. In a different state, in a different federal circuit, however, Bracey’s strategy could have easily backfired.
Footnotes
1 Commonwealth v. Bracey, 568 Pa. 264, 277, 795 A.2d 935 (Pa. 2001).
2 Id.
3 Commonwealth v. Bracey, ___ Pa. __, slip op. No. 565-CAP (Dec. 28, 2009), at pg. 3.
4 Id. at pg. 4.
5 Id. at pg. 5.
6 Id. at pg. 7.
7 Commonwealth v. Banks, 943 A. 2d 230 (Pa. 2007).
8 In what might have been an effort to deal with this negative evidence, Bracey requested that the Pennsylvania Supreme Court remand the matter to allow an assessment using “the new Wechsler Adult Intelligence Scale, Fourth Edition (“WAIS-IV”) test. . . Appellant produces written declarations from the three experts who testified at the 1998 PCRA hearing, stating that the WAIS-IV is an improved and updated test, which would greatly aid the Court in making a mental retardation determination.” Commonwealth v. Bracey, ___ Pa. __, slip op. No. 565-CAP (Dec. 28, 2009), at pg. 11, n. 6.
9 Id. at pg. 13-14 (record citation omitted).
10 Id. at n.7
Technorati Tags: psychology, forensic psychology, criminal psychology, criminal justice, Atkins cases, MR, ID, mental retardation, intellectual disability, criminal justice, ABA, American Bar Association, capital punishment, death peantly
Thursday, November 5, 2009
Books: ABA mental health and disablity law reference books
The ABA web store has three books (one in e-pdf format) related to mental health and disability law, evidence, testimony, etc. Click here to view
Technorati Tags: mental health, psychology, mental disability, intellectual disability, mental retardation, ABA, American Bar Association, Atkins cases, intellectual disability, mental retardation, law reference books
Wednesday, November 4, 2009
SCOTUS Wood v Allen oral argument update 11-4-09: Adequacy of MR defense in capital case
Technorati Tags: psychology, forensic psychology, criminal psychology, criminal justice, SCOTUS, Supreme Court, Wood v Allen, MR, Atkins case, mental retardation, intellectual disability, Alabama, ACLU, amicus brief, neuropsychology, educational psychology, school psychology, ACSblog
Monday, October 26, 2009
Bit off-task FYI: ABA National Mentor Program for Lawyers and Law Students with Disabilities
The Disability Discussion Docket (3D) listserv, a service of the ABA Commission on Mental and Physical Disability Law, just released its National Mentor Program for Lawyers and Law Students with Disabilities handbook.
As mentioned in the list post, "The Handbook is an easy to use document that has tips, definitions, and concepts to make your existing mentor-mentee relationship even better! The Handbook is meant for mentees and mentors, novices and experts."
Technorati Tags: disabilities, mental and physical disabilities, ABA, American Bar Association, Commission on Mental and Physical Disability Law, National Mentor Program for Lawyers and Law Students with Disabilities
Monday, October 19, 2009
Atkins MR death penalty related law review articles from Washington University Law Review
Thanks to Sentencing Law and Policy for FYI re: the forthcoming article in the Washington University Law Review--Does the Eighth Amendment Punishments Clause Prohibit Only Punishments That Are Both Cruel and Unusual? by Professor Meghan J. Ryan. The SLP blog provides a link to the abstract of the article.
Below is the abstract. Click here for copy of current draft.
Abstract (Ryan)
- There is a great struggle in the United States between proponents of the death penalty and death penalty abolitionists who believe that the practice is cruel and even unconstitutional. Although the punishment of death is enshrined in the Fifth and Fourteenth Amendments of the Constitution, the Supreme Court seems to have followed its moral compass in chipping away at the death penalty because of the cruelty of the practice. The Court’s struggle between the text of the Constitution and its moral inclinations in the death penalty context has resulted in an inconsistent and confusing Eighth Amendment Punishments Clause jurisprudence. While attempting to maintain neutrality on the topic and thus relying almost exclusively on assessing the unusualness of a practice through a purportedly objective assessment of state legislative action, the Court seems to have covertly injected into the equation its subjective views as to what punishments are unconstitutionally cruel. This tension between an objective measure of unusualness and a subjective assessment of cruelty has led the Court to make inconsistent statements about whether the Punishments Clause prohibits only punishments that are both cruel and unusual, or rather prohibits both cruel punishments and unusual punishments. This Article goes where no other has, identifying and exploring this important question. After tracing the history of the Eighth Amendment, analyzing the Court’s early interpretations of the prohibition on “cruel and unusual punishments,” and parsing the text of the Punishments Clause, the Article concludes that the Clause prohibits only punishments that are both cruel and unusual and that each of these components of the Clause should thus be independently assessed. While this interpretation may narrow the scope of the Amendment, it allows for further innovations in humane methods of punishment and revives the federalist foundation of this nation that the Court’s current jurisprudence has stifled.
Will poking around the Washington University Law Review I located another recent relevant manuscript of interest--Cruel and unequal punishments by Nita Frahany (click to view). The article discussesimplications of the original Atkins v Virginia decision re: potential interactions/conflicts between the Eight and Fourteen Amendments of the U. S. constitution.
Abstract
This Article argues that Atkins v. Virginia and its progeny of categorical exemptions to the death penalty create a new and as of yet undiscovered interaction between the Eighth and the Fourteenth Amendments of the U.S. Constitution. When the United States Supreme Court adapted its proportionality analysis from categories of crime to categories of people, it abandoned intrajurisdictional analysis, a de facto equality consideration under the Cruel and Unusual Punishments Clause. The Court, the legal academy, and commentators have failed to consider the remarkable equal protection implications of this doctrinal shift. To see the point in practice, one need only consider two criminal defendants: the first was mentally retarded from birth; the second suffered a traumatic brain injury at the age of twenty-two; and both have identical cognitive, behavioral, and adaptive impairments. Under state statutes cited approvingly in Atkins and others enacted since, the first defendant cannot be executed, but the second one can. This seems wrong on its face, but to understand why, it is necessary to explore the interaction of the Eighth and Fourteenth Amendments. The doctrinal shift in Atkins has profoundly altered that interaction, putting the Cruel and Unusual Punishments Clause in tension with the Equal Protection Clause. This Article illustrates that conflict, and how legislative classifications adopted pursuant to categorical exemptions under the Eighth Amendment may now be subject to Fourteenth Amendment scrutiny.
Disclaimer: I'm not a lawyer [although I did stay at a Holiday Inn Express last night---just kidding..my attempt at a little TV commercial related humor :) ]. This information is posted as FYI "as is."
Technorati Tags: psychology, forensice psychology, criminal psychology, criminal justice, educational psychology, school psychology, forensic psychology, MR, mental retardation, intellectual disability, developmentl disability, Atkins case, law review, Washing University Law Review, death penalty, capital punish, Eight Ammedndment, Fourteenth Ammendment
Friday, October 2, 2009
Science vs law in evaluating expert scientific testimony: From Vidal (2007) Atkins decision
Science vs law in the court room.
I've been skimming the CA Supreme Court Vidal (2007) Atkins-related decision and found a fascinating discussion of the distinction between science and law (thanks to In the News Blog for directing my focus to this section). For those who don't want to read the entire PDF document previously posted, below is the relevant text. Professionals who testify (or who are considering testifying) in Atkins cases, should be aware of the courts role in mediating/deciding expert-testimony based scientific debates. Scientific debates in the court room are not the same as debates between scholars at conferences, in journal articles, etc.
Underlined/italics in the text below reflect the blogmasters emphasis.
Technorati Tags: psychology, forensic psychology, criminal psychology, criminal justice, neuropsychology, school psychology, educational psychology, clinical psychology, Vidal Atkins case, Atkins cases, intelligence, IQ tests, MR, mental retardation, developmental disabilities, science vs law, capital punishment, death penalty
I've been skimming the CA Supreme Court Vidal (2007) Atkins-related decision and found a fascinating discussion of the distinction between science and law (thanks to In the News Blog for directing my focus to this section). For those who don't want to read the entire PDF document previously posted, below is the relevant text. Professionals who testify (or who are considering testifying) in Atkins cases, should be aware of the courts role in mediating/deciding expert-testimony based scientific debates. Scientific debates in the court room are not the same as debates between scholars at conferences, in journal articles, etc.
Underlined/italics in the text below reflect the blogmasters emphasis.
In assessing the role the Full Scale IQ score (or any other single test score) plays in determining mental retardation, we must distinguish between rules of law and diagnostic criteria of psychology. The expert testimony below included a vigorous scientific debate as to whether Vidal’s Full Scale IQ scores should rule out a diagnosis of mental retardation. While one psychologist, McKinzey, gave his opinion that Full Scale IQ scores are, in all circumstances, the “best measure of general intelligence,” two other psychologists, Couture and Widaman, testified that where testing showed an extraordinarily wide divergence between Performance and Verbal IQ scores, the Full Scale measure was not a fully reliable measure. In support of their views, both sides gave scientific, not legal, reasons and cited scientific, not legal, authority
The Court of Appeal sided squarely with McKinzey in this debate over psychological standards, stating flatly that “general intellectual functioning is primarily determined by the defendant’s FSIQ score.” Like the psychologists who testified at the hearing, the lower court majority cited scientific sources (references published by the American Psychiatric Association and the American Association on Mental Retardation) rather than legal authority in support of its view. The Court of Appeal majority erred in thus purporting to resolve a factual question--the best scientific measure of intellectual functioning--as a matter of law. In finding the facts of a particular case, courts and juries untrained in science are sometimes called upon to resolve contested scientific issues, but such factual findings do not establish generally applicable rules of law. The superior court here, for example, found on the basis of Couture’s and Widaman’s testimony that in Vidal’s case his Full Scale IQ scores in the low average to average range did not preclude a finding of mental retardation. In a given case an appellate court might, within its proper role, hold that such a finding was not supported by substantial evidence in the hearing record. But an appellate court cannot convert a disputed factual assertion into a rule of law simply by labeling it a “legal standard,” as the Court of Appeal purported to do here.
Courts also must sometimes evaluate disputed scientific assertions in the course of determining the admissibility of expert scientific testimony. In determining the evidentiary reliability of a new scientific technique, California courts look primarily to the technique’s general acceptance in the relevant scientific community, an approach designed to ensure “ ‘that those most qualified to assess the general validity of a scientific method will have the determinative voice.’ ”(People v. Kelly (1976) 17 Cal.3d 24, 31, italics omitted.) Even under the arguably more searching federal court inquiry described in Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579, “the focus, of course, must be solely on principles and methodology, not on the conclusions that they generate.” (Id. at p. 595.) The courts’ evidentiary gatekeeping function is thus not a warrant for judicial intervention in genuine scientific debates over substantive principles. In any event, we are not faced here with a question of admissibility of disputed evidence but with the question whether, when both sides of a scientific dispute have been presented by expert testimony, an appellate court may declare the debate’s winner as a matter of law.
The Legislature has mandated that trial courts, in determining mental retardation for Atkins purposes (Atkins, supra, 536 U.S. 304), find whether the individual’s “general intellectual functioning” is significantly impaired (§ 1376, subd. (a)), but has not defined that phrase or mandated primacy for any particular measure of intellectual functioning. The question of how best to measure intellectual functioning in a given case is thus one of fact to be resolved in each case on the evidence, not by appellate promulgation of a new legal rule.
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