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41 Justice Blackmun dissented (for himself, and Justices Brennan and Marshall),42 rejecting the Court’s views on the psychiatric issue: The Court holds that psychiatric testimony about a defendant’s future dangerousness is admissible, despite the fact that such testimony is wrong two times out of three. The Court reaches this result—even in a capital case—because, it is said, the testimony is subject to cross-examination and impeachment. In the present state of psychiatric knowledge, this is too much for me.
117 On Therapeutic Jurisprudence There has been little written about the relationship between therapeutic jurisprudence (TJ) and the error rate/predictions of dangerousness dilemma. ”120 And, in the civil commitment context, colleagues and I have written about the TJ implications of a “more formal” system of dangerousness assessments: For the first time, psychiatrists were subjected to rigorous cross-examination and were required to substantiate their medical opinions rather than merely make medical conclusions.
16 Although Jurek was subsequently partially overruled by Abdul-Kabir v. Quarterman17—in light of intervening cases that had emphasized that “the Constitution guarantees a defendant facing a possible death sentence not only the right to introduce evidence mitigating against the death penalty but also the right to consideration of that evidence by the sentencing authority”18— nothing in the latter decision appears to have had any impact on the questions under consideration in this chapter. indb 20 12/20/12 9:07 AM Future Dangerousness and the Death Penalty 21 ing recently about Jurek, Professors Carissa Byrne Hessick and F.