The Daily Digest – 2/9/11

Those following the intersection of cognitive neuroscience and law know that, to date, it has been used most frequently as mitigating evidence in capital sentencing. Like socioeconomic background or abusive childhood evidence, criminal defendants are now using cognitive neuroscience to say: don’t blame me, blame my brain. Despite the initial enthusiasm in the defense bar for this evidence, some trial counsel now intentionally forego its use because of its double-edged potential. Convincing a jury that the criminal defendant couldn’t control his impulses because his brain made him do it can easily backfire as a mitigation strategy.

On the civil side, the opposite may be true. What was one impossible–proving the impact of a head injury in an car wreck, or linking a specific toxin (like lead) to brain damage–no longer is, thanks to new neuroimaging techniques and evidence about genetic susceptibilities (made all the more ubiquitous by the likes of 23andMe). Equipped with brightly colored brain scans and fMRI data, civil plaintiffs are getting closer to being able to provide tangible proof that they really do suffer constant headaches and pain, or that their cognitive defects really were caused by lead poisoning. Of course, what goes around, comes around. Jurors may increasingly expect plaintiffs to prove their injuries with these techniques. This is otherwise known as the CSI effect.

Just last month, I completed an empirical study on the relevant criminal cases (published between 2004-2009). Contrary to popular belief that these cases are few and far between, there is a much broader and increasingly more varied use of cognitive neuroscience & behavioral genetics evidence in law. The cases reported here today demonstrate both the novel and the protoypical uses of cognitive neuroscience and genetic evidence in law.

Brain Dysfunction, Memory and the Blackout Defense
State v. Allsup, 2011 WL 332734 (Ohio App. 3 Dist. 2011)
This is a terrific case to foreshadow the impeding onslaught of neuroscience-based memory claims. The defendant brought this appeal from the judgment of the Court of Common Pleas finding him guilty of (among other things) failure to comply with an order or signal of a police officer and felonious assault on a peace officer with a deadly weapon. On appeal, the Defendant claims that the trial court erred in excluding relevant expert testimony regarding his head injuries and subsequent blackouts. At trial, the defendant entered a plea of not guilty by reason of insanity, (“NGRI”), to all the charges listed in the indictment. In a pre-trial motion, the Defendant entered a motion for neuropsychological testing. He argued that his NGRI defense was based upon a mental defect or injury resulting from a head injury he suffered when a tree limb fell on him weeks prior to the incident. As a result, he suffered severe lapses in memory such that he had no recollection of the police chase and surrounding events. The trial court ruled to exclude the evidence of the Defendant’s head injury on the basis that it improperly attempted to establish a diminished capacity defense, and simply served to mislead the jury. A mere failure to remember an event does not, the court explained, excuse its occurrence unless the failure to remember signifies involuntary or unconscious conduct. The proffered defense testimony failed to establish that the Defendant was unconscious or acted involuntarily when he was involved in the police chase. That the Defendant could not remember the incident, standing alone, was insufficient to demonstrate that he lacked the ability to form a specific intent to adequately establish a “blackout defense.” The court found no error in the trial court’s decision to exclude the proffered evidence on the basis that the testimony was both irrelevant and could potentially be misleading to the jury.

Brain Dysfunction and Cruel and Unusual Punishment
People v. Pela, 2011 WL 340536 (Cal.App. 3 Dist. 2011)
In this case the Defendant unsuccessfully used his cognitive disorder, in conjunction with his claim of inadequate medial treatment available to prisoners in California prisons, to argue it would be cruel and unusual punishment to incarcerate him for the 46 years and 8 months sentence he received for his convicted of 11 counts of robbery. At trial the defendant argued that his “mood disorder” leads to “cycles of depression and manic behavior” and that his organic bipolar disorder made him a robber out of an “honest, upstanding churchgoer.” His grandmother’s death “triggered a ‘kindling’ event in the brain” that made him susceptible to “a debilitating mood disorder” and that “[w]ithout help or insight into his mood disorder, he became engulfed in cycles of depression and manic behavior that led to withdrawal and hopelessness on the one hand, and impulsive and reckless behavior on the other.” With respect to the sentence length, the trial court found that “any mental health problem defendant had was relatively minor” and therefore the sentence length was not excessive. As to the 8th Amendment claim, the Defendant has a remedy – to insist that the prison authorities provide him with adequate medical care as needed, including adequate mental health care.

Brain Dysfunction and Capital Mitigation
Ray v. State, 2011 WL 339587 (Ala. Crim. App. 2011)
Another failed attempt at claiming IAC for failing to introduce mitigating evidence during capital sentencing. The defendant was convicted of murder during the course of a rape and a robbery. The jury (by a vote of 11-1) recommended he be sentenced to death, which the circuit court followed. The conviction and sentence were affirmed on direct appeal. Here, the Defendant unsuccessfully appeals the denial of a post-conviction petition he filed attacking his capital-murder conviction and death sentence. Among other arguments, he claims to have received ineffective assistance of counsel during the penalty phase of his capital-murder trial because his trial counsel failed to introduce expert mental health testimony. At the post-conviction evidentiary hearing, the Defendant introduced expert testimony that the Defendant had an “anomalous brain development that causes [him] to suffer severe problems with interpersonal relationships and self control,” and that his IQ is 80, which places him in the level of low mental functioning. To rebut the mental health evidence, the State introduced expert testimony to the contrary, in which the expert opined that there was no need for neuropsychological testing, because the defendant had no history of “head trauma, head injury, [or] neurological disease.” This appellate court found the mitigating evidence weak, at best, and that there was no prejudice to the Defendant in not having had the mental health evidence introduced at trial.

About Nita A. Farahany

Professor of Law and Philosophy, Professor of Genome Sciences and Policy
This entry was posted in Civil, Criminal, Neuroscience and tagged , , , , , . Bookmark the permalink.

One Response to The Daily Digest – 2/9/11

  1. Steve Erickson says:

    Great blog Nita; looking forward to more posts!

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