'Deceived Me into Thinking/I Had Something to Protect': A Therapeutic Jurisprudence Analysis of When Multiple Experts Are Necessary in Cases in which Fact-Finders Rely on Heuristic Reasoning and 'Ordinary Common Sense'

Abstract

There is a stunning disconnect between the false “ordinary common sense” of fact-finders (both jurors and judges) and the valid and reliable scientific evidence that should inform decisions on the full range of questions that are raised in cases involving the forensic mental health systems – predictions of future dangerousness, competency and insanity determinations, sentencing mitigation in death penalty cases, and sexually violent predator commitments. Abetted by the misuse of heuristic reasoning (the vividness effect, confirmatory bias, and more), decisionmakers in such case frequently “get it wrong” in ways that poison the criminal justice system. If we were to adopt this proposal – to provide two experts in cases in which such inaccuracy is likely, one to explain to the fact-finders why their “common sense” is fatally flawed, and one to provide an evaluation of the defendant in the context of the specific question before the court – then, and only then, would therapeutic jurisprudence principles be vindicated.

Keywords: Therapeutic jurisprudence; criminal procedure; expert testimony; heuristics; “ordinary common sense”; sanism; jurors; judicial decision-making