Document Type

Article

Publication Title

Marquette Law Review

Publication Date

2019

Abstract

Neurobiological and epidemiological research suggests that abuse and adverse events experienced as a child can increase an adult’s risk of brain dysfunction associated with disorders related to criminality and violence. Much of this research is predictive, based on psychological evaluations of children; few studies have focused on whether or how criminal proceedings against adult defendants consider indicators of childhood trauma. This Article analyzes a subset of criminal cases pulled from an 800-case database created as part of an original, large-scale, empirical research project known as the Neuroscience Study. The 266 relevant cases are assessed to determine the extent to which, and the methods whereby, criminal courts weigh and respond to childhood trauma evidence. This Article first creates a systematic and detailed definition of what constitutes childhood trauma evidence based on 20 factors, including physical and verbal abuse, dysfunctional upbringing, brain damage or injury, and neglect and abandonment. These factors are then examined in the context of the often life-long conditions caused by or related to such trauma, ranging from mental illness and neurological disorders to poor intellectual functioning and behavioral problems. A review of courts’ responses indicates that childhood trauma evidence is primarily used for mitigation and can play a significant and persuasive role in claims of ineffective assistance of counsel, especially in death penalty cases. At the same time, findings suggest that courts may offer attorneys a troubling degree of deference by accepting their claims of “strategic” yet empirically unfounded decisions to omit childhood trauma evidence in certain circumstances. This Article provides real-world guidance for attorneys seeking to incorporate childhood trauma evidence into their arguments, emphasizing the value of drawing a distinct nexus between defendants’ childhood traumas and their adult criminal behavior. Attorneys who understand the long-term effects of childhood trauma will be better equipped to make such connections and effectively present this evidence in court.

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