MDLPA: “Folk Psychology,” Heuristics, “Ordinary Common Sense,” & Mental Disability Law

1.5 Hours | 1.5 CEs

This on-demand professional training program on “Folk Psychology,” Heuristics, “Ordinary Common Sense,” & Mental Disability Law is presented by Michael Perlin, JD, and Heather Ellis Cucolo, JD, in partnership with Mental Disability Law and Policy Associates (MDLPA)

This program explores the influence of "folk psychology," heuristics, and false operational causal sequences (OCS) in forensic contexts and their detrimental effects on the judicial fact-finding process. Participants gain a comprehensive understanding of how these factors corrupt the integrity of trials and appeals, leading to flawed forensic testimony.

The program delves into critical case law that highlights the harmful consequences of relying on these informal reasoning methods, demonstrating their pervasive impact on legal outcomes. The program also examines the principles of therapeutic jurisprudence, outlining its potential to mitigate the harms caused by these false reliance practices. Through this framework, participants learn to advocate for more accurate and scientifically grounded approaches in forensic assessments and courtroom proceedings.

Testimony in forensic mental disability law cases is riddled with assumptions about people with mental disabilities: what they “are like,” how they think, what they know, how they act, how they respond to stimuli. In its most recent term, the Supreme Court jumped into this conversation by ruling, in a drug case, that testimony about what a drug courier likely “knew” did not violate the Federal Rules of Evidence that prohibited the stating of opinions as to whether a defendant did or did not have mental state or condition that constituted an element of crime charged (Diaz v. United States, 2024).

Broadly, a wide range of assumptions – most negative and virtually all employed without a shred of valid/reliable evidence, but based on a false “folk psychology,” contaminates the entire criminal justice system in cases involving this population. Much of this flows from a fatal reliance on the use of “folk psychology,” a pseudo-philosophy that purports to explain and predict human behavior, that contaminates all of forensic mental health law.

This system is sanist, pretextual, and is driven by the use of cognitive-simplifying heuristics and ordinary common sense. By incorporating principles such as therapeutic jurisprudence, we can reduce the harms done by the misplaced reliance on folk psychology (and on heuristics and false OCS) by participants in the forensic setting.