“Mental Health
Evidence for
Both Phases”
www.JohnMatthewFabian.com • 216.344.3988
A Higher Standard of Utilizing Mental
Health Experts in Capital Proceedings
1) Competency to Waive Miranda
Rights
2) Competency to Stand Trial
3) Insanity
4) Mitigation at Sentencing
5) Forensic Neuropsychological
Assessment
ESTABLISH THE RECORD
EARLY
Try to establish a record during the
pretrial phase that the client is
mentally ill, and the condition (if
established) might be used later as
mitigation during the sentencing
phase to establish a nexus with the
offending behaviors.
WHO ARE WE DEALING WITH?
The Prevalence of Mental Illness in
the Criminal Justice System
State Prison
Any Mental
Health
Problem
56%
Recent
History
24%
Symptoms of
Psychiatric
Problem
49%
Fed. Prison
45%
14%
40%
Local Jail
64%
21%
60%
Competency to Waive
Miranda Rigthts
1) Voluntary
2) Knowing- depends on suspect’s
ability to know or understand
each of the 4 Miranda rights and
the way in which the rights were
presented to him
3) Intelligent-whether suspect
made a rational choice based on
some appreciation of the
consequences of the decision and
ability to weigh options
Voluntary waiver
Intimidation, Coercion,
Deception
Expert witness can assess the
susceptibility to the perceived wishes
of authority figures with those who
have mental disability.
Mentally retarded have tendency to
make a statement and respond to
leading questions containing false
and misleading information.
Knowing and Intelligent
Waiver
Suspect’s ability to understand the
rights and rationally assess the
consequences of a waiver, not the
potential range and scope of the
waiver.
Right to Remain Silent
1) Many defendants believe they have to
make a statement to police or their
invocation of the right will be used
against him in court.
2) Defendant believes he is innocent
3) Belief he can handle his own case
4) Police will get angry upset
5) Police will think I am guilty
6) To cooperate, get information and ask
questions
Who has trouble waiving
their Miranda?
1)
2)
3)
4)
5)
IQ lower than 70- *Verbal IQ
Reading comprehension below 7th grade
Poor listening comprehension
History of mental retardation
Neuropsychological impairment & head
injuries, ADHD
6) Schizophrenia, mental retardation
7) Age
8) Poor SES & Education
9) Interrogation suggestibility
10)Interrogation context, nature of police
coercion
Competency to Waive Miranda
Evaluation
1) IQ testing
2) Academic achievement, reading
3) Neuropsychological testing including
assessment of attention and short-term
verbal memory
4) Adaptive functioning skills
5) Malingering
6) Suspect’s current understanding of the
Miranda card he was given
7) Instruments for Assessing
Understanding & Appreciation of
Miranda Rights
8) Gudjonnson Suggestibility Scales
Expert Integration of
Evidence
The expert must produce of evidence
of not only mental disability and
impairment, but *evidence that
those disabilities made him incapable
of knowingly and intelligently waiving
his Miranda rights or that he did not
give a valid waiver in that particular
instance.
Attorney roles in the
Miranda evaluation
1) Mental health records
2) Criminal history/prior arrest records
3) Miranda waiver card used and specific
language of the waiver
4) Written waiver/statement, audio/visual
record of statement
5) Suspect blood/alcohol level at time of
alleged offense/statement
6) Do not inform defendant of Miranda
information before evaluation
Garner vs. Betty Mitchell
502 F.3d 394(2007)
U.S. Court of Appeals 6th Circuit
ruled that D did not knowingly and
intelligently waive his Miranda rightsreversed district court’s judgment
and ranted conditional writ of habeas
corpus.
*Defendant had IQ of 76
Court found D could not define word
“right” and did not understand right
to remain silent.
Garner vs. Betty Mitchell
502 F.3d 394(2007)
Court considered:
1) Defendant’s low IQ
2) Poor education
3) Lack of prior experience with criminal
justice system
4) Young age
5) Unrebutted expert evidence
6) Warnings were not explained for him in
simple terms
7) D had no assistance from lawyer, social
worker, or family member
State v. Caldwell
611 So.2d 1149 (1992)
Alabama criminal appeal court
affirmed trial court’s ruling that a
suspect with an IQ of 71 did not
knowingly and intelligently waiver
her Miranda rights.
Competency to Stand Trial:
Some Facts
1/5 of clients referred for
competency evaluations are
found incompetent to stand
trial, most suffer from:
Schizophrenia
Mental Retardation
Psychotic Features>
Impairment In Reasoning &
Assisting
Low IQ>
Impairment In Understanding,
Reasoning & Assisting
Severity of Crime and
Incompetency
Homicide accounts for 1% of
total arrests, but 22% of
competency referrals were
charged with homicide.
Base rates for incompetence
judgments are much lower for
defendants with violent charges
(8%) and much higher for
disorderly and trespassing
charges (48%)
Warren, 1991
Attorney Ethics and
Competency:
ABA Standards for Criminal Justice 7-
Obligation to raise 4.2(c)
the issue of the
defendant's competency whenever he has
a good faith doubt whether the defendant
is competent to
stand trial, regardless of the
defendant's wishes.
Professional
Responsibility
Defense attorneys:
MC of PR asserts that a
lawyer’s responsibilities
may vary according to
the intelligence or mental condition
of the client.
MC EC7-11
Drope vs. Missouri
420 U.S. 302 (1975)
The trial court must always be alert
to circumstances suggesting a change in
competency.
A defendant’s competency
to stand trial is not a fixed state.
Attorneys must:
Document communication
problems relevant to behaviors/symptoms
they see, and defendant’s
inability to assist and inform expert of this info.
COMPETENCY IS ON A CONTINUUM
Godinez vs. Moran
“Competency is a context-based
inquiry.”
Demands of a criminal case vary
significantly
Godinez, 509 U.S. at 413
(Blackmun, J., dissenting)
Yarborough vs.
Alvarado, 2004
U.S. LEXIS 3843 (2004)
Rational understanding is generally
greater for a complex crime like
capital murder
Defendant Decisions
More DecisionsProcedural Rights
Decisions Defendants must
participate in:

Pleading guilty

Proceeding to trial

Whether or not to testify

Call specific witnesses

Plead insanity and diminished
capacity
Context and Function
1) Counsel is in the best position
to make informed, comparative
judgments about a particular client’s
understanding of the proceedings
against him.
•
Counsel is in the best position
to assess that client’s ability
to make the decisions required
of the client and to provide whatever
assistance counsel deems necessary
Uphoff (1988)*
Bishop vs. Superior Court, 150 Ariz. 404 (1986)
Educate the Expert- He’s Not the
Attorney
Discuss with the experts the legal
complexities and nuances of the case
and their specific difficulties with
their clients. Defense counsel should
monitor the stability of the client’s
mental status as contacts with him
progress in jail.
“He’s crazy doc!
”He can’t help me!”
Is he competent?
Attorneys question their clients
competence between 8-15% of the
time. They often question their
client’s competence immediately,
before significant interactions with
counsel have occurred and before
strategic decisions regarding defense
of the case have been considered.
Expert’s Ignorance
Examiners rarely inquire into
the skills that a specific defendant actually
needs to stand trial.
83% involved impairments on understanding and
assisting counsel
13% impairment on the understanding component
4% on the assist component
(Winick, 1985)
Assessing Defendant’s
Psycholegal Functioning in a
Particular Legal Context
*The expert should consider
assessing the interaction
between lawyer and client
to assess defendant’s true
functional abilities
Problems with Competency
Evaluations: Expert
Ignorance, Expert Laziness
Experts do not specifically
address a defendant’s ability
to reason or appreciate.
United States v. Duhon
Anyone can parrot information
United States v. Duhon
The FCI report provides no
scientific or other support for
the conclusion that repeating
factual information to a
mentally retarded criminal
defendant so that he learns
to retain it has any relevance
to the issue of competency.
The “Dusky Standard”
A Universal Standard
Dusky vs. United States,
362 U.S. 402 (1960)
Whether defendant
“has sufficient present ability
to consult with his lawyer with
a reasonable degree of rational
understanding- and whether he
has a rational as well as factual
understanding of the proceedings
against him.”
ALABAMA COMPETENCY
STANDARD
Ala.
R. Crim.
P. Rule
A defendant
is mentally
incompetent
to
stand trial or to be sentenced
for (2007)
a defense
11.1
if that defendant lacks sufficient present
ability to assist in his or her defense by
consulting with counsel with a reasonable
degree of rational understanding of the
facts and the legal proceedings against
the defendant.
Components of
Competency
1) Factual Understanding
2) Rational Understanding*
(Decision Making Abilities)
3) Consulting and Assisting
Counsel*
Understanding is Easy
Expert reports focus too much on basic competence
related abilities such as concrete understanding of
the legal process or ability to disclose information to
one’s attorney
Rationality is a minimum requirement, and
factuality is not enough.
Lack of rationality should always trump mere
factual knowledge.
Brakel, 2003
Function and Legal Context
is Complex
Assessment of functional…
…abilities that are relevant for the
particular legal context in question
…abilities associated with trial
participation as a defendant
Grisso’s Model of CST Evaluations
Decisional Competence
Decision making regarding
legal defense strategy entails cognitive
capacities for rational thinking in context of
defendant’s factual situation.
Appreciation
Can defendant understand, reason,
and choose among various courses
of action?
Comprehend is not = to
appreciate
Appreciation of Legal
Defenses
•
Will you plead guilty or not guilty at your trial and
why?
•
What are your chances to be found not guilty
•
How can you defend yourself against these charges?
•
What are your legal defenses?
•
You have been in jail for
10 months, and do not know
how you plan on defending
your case?
•
What happens if you are found incompetent or NGRI
How can you explain your way out of
these charges?
What should your lawyer concentrate
on in order to
best defend you?
What has he done so far?
Rationed and Reasoned
Choice
Ability to rationally
manipulate information
Weigh information
to reach decision
Compare benefits and
disadvantages of
decisional options
Plea Bargain
PLEA BARGAIN
-What is a plea bargain-What ranges of penalties do
these charges hold
-What are the advantages and disadvantages of a
plea bargain
-Given the nature of the evidence in this case,
would you consider a plea bargain
-Provide a hypothetical plea bargain case and ask
for advantages and disadvantages
-Compare hypothetical to defendant’s case
-Given the facts in this case, what would be the
minimum amount of years you would take
Rational Understanding and
Reasoning
Consult with lawyer with
Rational Understandingrequires complex cognitive abilities,
i.e., judgments, perceptions, decision
making, appreciating,
that are grounded in reality.
The Competency of Defendants to
Delusionally Refuse a Counsel
Recommended NGRI Defense
1) Defendant refuses NGRI plea
against counsel advice
2) Defendant insists on delusional
defense
3) D’s defense has no realistic
chance
Litwack, 2003
Delusional Defendants
and NGRI
4) Overwhelming evidence defendant
committed crime
5) Defendant is charged with
serious crime
6) Defendant has a viable
insanity defense
(Litwack, 2003)
Incapable vs. Unwilling
Capacity=Ability
Incapacity=mental illness
Unwillingness=personality
disorder
Riggins vs. Nevada
504 U.S. 127 (1992)
Forced medication during trial
violates 6th & 14th Amendment
rights absent certain findings.
Consider defendant’s affective
responses and presentation in court
room that could affect juror
perceptions of defendant.
Critical Federal Case
Law on Rationality
United States vs. Nagy,
U.S. Dist. LEXIS 9478 (1998)
United States vs. Blohm,
579 F. Supp. 495 (1983)
Competency And Amnesia
Wilson vs. United States
391 F. 2d 460 (1968)
Amnesia per se does not constitute
incompetency
INSANITY
Code of Ala. § 13A-31 commission
(2007) of the acts
At the time of the
constituting the offense, the defendant, as
a result of severe mental disease or defect,
was unable to appreciate the nature and
quality or wrongfulness of his acts.
Mental disease or defect does not
otherwise constitute a defense.
*If not other motive than psychosis, than
you have a good case. Focus on
irrationality of behavior.
APPRECIATE .”[1]
Some legal/mental health scholars differentiate the
terms “knowledge” and “appreciate” when
considering statutory language as applied to mental
health law. [2] The term “knowledge” often
denotes an intellectual or cognitive awareness. The
term “appreciate” may signify a broader definition of
becoming fully aware of one’s conduct. The term
“appreciate” may include consideration of other
factors in addition to the awareness of legal
prohibitions and consequences of one’s behavior. For
example, it may include moral and affective
dimensions (in addition to an intellectual/cognitive
dimension) that take into account the distortions of
insight and judgment that weaken a person’s
understanding to the significance of their actions.
[1] Webster’s II New Riverside Dictionary Revised Ed. Defines
“appreciate” as “To recognize the value or quality of. To value
highly. To be aware of: realize.”
[2] See Ralph Slovenko, Psychiatry and Criminal Culpability.
APPRECIATE AND
DELUSIONS
I believe that Mr. Halder was able to
“appreciate” and become fully aware
(cognitively and intellectually) of the legal
consequences (criminality) of his conduct.
However, when considering a broader
definition of “appreciate,” I believe that Mr.
Halder’s psychiatric state at the time of the
offense (delusional disorder) likely impaired
his ability to morally appreciate his actions.
NATURE
D’s ability to know what act he was doing
or its consequences. D’s understanding and
comprehension of the characteristics of his
physical attack.
He knew that a gun could injure, wound,
and kill others. He was aware that if he
aimed a loaded gun at someone and pulled
the trigger, he could kill someone.
Although he believed his actions could
address his goal of making a statement
and protecting humanity from cybercrime, he also was aware that he could kill
or be killed in a shoot out.
NATURE EXAMPLE
Derek assaulted and murdered his aunt, he on one hand believed
that she was in fact his aunt, but yet also perceived her to be a
terminator type tracking device who was aligned with Jeff and
Osama Bin Laden. His statement reflects his beliefs, “I felt like I
had to destroy her and I did not think I was killing anyone;
rather, I was shutting down a machine. I had to destroy it to
save my life. I thought she was faking hurt and I had to kill this
machine. She wouldn’t die, it was like a terminator machine that
wouldn’t stop fighting me. So I went to the kitchen and got a
knife and she was almost face down and I cut her neck and I felt
blood on my hands and I realized that it was real blood and not
fake. I did not expect to see real blood to come out and I realized
that this was real.” Derek reported that when he saw the blood,
he was confused in that he believed he had assaulted his aunt
but also believed she was still a tracking device, “I realized my
aunt was my aunt when I felt her blood and it surprised me, it
scared me to death. I realized this but did not think she was my
aunt when I started hurting her. When I punched and knifed her I
thought she was helping Jeff kill me. I realized when I saw her
blood that she was my aunt but I still believed she was helping
Jeff track me and she was acting as a device. It was so
confusing.”
QUALITY
Broader meaning than knowing the
physical actions, rather, whether
defendant was able to recognize the
likely outcome of his conduct.
Requires more than vague
awareness, rather real insight.
MORAL WRONGFULNESS
*SUBJECTIVE MORAL WRONGFULNESS
Moral vs. Legal wrongfulness is a legal
question, to be answered by the trier of
fact.
As a result of a psychiatric disorder, the D
personally believed they were morally
justified in their behavior even though they
may have known their acts were illegal and
or contrary to public standards of morality.
*Subjective moral wrongfulness based on
delusional beliefs.
JURORS AND INSANITY
1) Lack of planning, bizarreness.
2) Capacity to make responsible
choices
3) Responsibility for mental condition
i.e., use of substances refusing
treatment, noncompliance
4) Severity of crime
Rogers & Shuman
MITIGATION AT CAPITAL
SENTENCING
Heinousness is related to death sentences & jurors
often consider punishment during guilt phase
Mitigation Makes a
Difference
Mock Jurors are less likely to sentence a
defendant to death when:
-Defendant has history of schizophrenia,
not medicated
-Drug addicted and high at time of offense
-Diagnosed as borderline mentally retarded
-History of severe physical and verbal
abuse during childhood
Barnett et al., 2004
Interaction of Various Homicide Risk
Factors
Determinism
Prosecution Theory
Freewill Approach to Violence and
Homicide
Moral Culpability,
Blameworthiness, &
Deathworthiness
Prosecution―Freewill & Choice
Defense―Determinism
(biopsychosocial interaction)
Psychology, psychiatry, &
neuropsychology integrates the two
It’s the Law
The United States Supreme Court has held in
Strickland v. Washington that a capital defendant is
guaranteed effective assistance of counsel in capital
proceedings.[1]
The Court ruled in Wiggins v. Smith that ineffective
assistance of counsel in death penalty litigation
must meet two requirements including: defense
counsel’s performance was deficient and this
deficiency unfairly prejudiced the defendant.[2]
Failure to investigate information relevant to
mitigation usually stems from neglect, insufficient
funding, or trial strategy (the latter usually occurs
when an investigation will lead to prior acts of
violence and criminal activity that the trier of fact is
unaware of as in Strickland).
Strickland v. Washington, 466 U.S. 668 (1984).
[2] Wiggins v. Smith, 539 U.S. 510 (2003).
DEFENSE OBLIGATION
Defense counsel has an obligation to
conduct a thorough investigation of
the defendant’s background. A
decision not to investigate must be
directly evaluated for reasonableness
in all the circumstances.[1]
[1] Williams v. Taylor, 529 U.S. 362
(2000).
ABA GUIDELINES
The ABA Guidelines for Death Penalty Defense[1]
require that “counsel at every stage have an
obligation to conduct thorough and independent
investigations relating to the issues of both guilt and
penalty.”[2] A capital defense team consist of at
least two attorneys, an investigator, and mitigation
specialist.[3] One of the members of the team
should be qualified to examine the defendant for the
presences of mental or psychological disorders.
The American Bar Association Guidelines for the
Appointment and Performance of Defense
Counsel in
Death Penalty Cases (rev. ed. 2003).
[2] Id. Guideline 10.7- Investigation.
[3] Id. Guideline 10.4-The Defense Team.
OBJECTIVES OF
MITIGATION
Mitigation at capital sentencing can
serve the following objectives:
-Reveals the defendant as a human being,
humanizes the defendant and separates his
character and background from his crime.
-Explains mental illness and neurological
deficits that were a nexus with the
homicide but may have not been enough to
constitute a defense at trial, i.e., insanity.
MITIGATION
-Explains substance
abuse/dependence that was a nexus
with the homicide. A defendant’s
substance abuse/dependence
diagnosis may represent a biopsycho-social addiction process.
Further, his substance intoxication
diagnosis at the time of the homicide
may represent a volitional
impairment of his behavior at the
time of the homicide.
MITIGATION
-Portrays any positive/redeeming
qualities the defendant possesses.
-Provides evidence of extenuating
circumstances surrounding the
offense.
MITIGATION
Shows that the defendant’s life in
prison would be productive and not
threatening or violent to others.
Reveals that he has made a good
adjustment to incarceration pursuant
to Skipper v. South Carolina.
Rebuts prosecutor’s evidence of
aggravating circumstances.
MITIGATION
-Negates the juror’s perception that
the defendant presents as a future
danger to society.
-Provides information to the jury
about the impact of the defendant’s
execution on his family and friends.
Our Objective
Explains the defendant’s homicidal
acts and prior violent/criminal
behavior in a humanly
understandable light given his past
history, unique characteristics
affecting his development, and
exposure to heightened risk factors
and deficits in protective/mediating
factors.
Who are we evaluating and
representing?
1) IQ’s around 80 indicating borderline range of
Research
Profiles of Death
intelligence;
2) low commitment to school and poor academic
Row
success;
3) neurological injury and organic brain impairment;
4) psychiatric disorders, primarily schizophrenia and
affective disorders;
5) history of familial family abuse/neglect;
6) parental substance abuse;
7) family separation;
8) history of substance dependence;
9) and poor ability to represent oneself in appeal
process.[1]
Mark D. Cunningham & M.P. Vigen. Death row inmate characteristics, adjustment, and confinement: A
critical review of the literature. behave. sci. & l. 20(1-2) 2002.
RISK FACTOR
Characteristics, variables, traits, or
hazards, that if present for an
individual, make it more likely that
he/she rather than someone from
the general population, will develop a
disorder Mrazek & Haggerty, 1994.
Anything that increases the
probability that a person will suffer
harm.
(U.S. Attorney General, 2001)
PROTECTIVE FACTOR
Influences that provide a buffer between
the presence of risk factors and the
onset of delinquency. Protective factors
may mitigate risk and may be
integrated in treatment or intervention
planning.
They offset risk by:
1)
2)
3)
4)
Reducing risk
Reducing negative chain reactions
Establish self-esteem and self-efficacy
Create opportunities (Rutter, 1987)
RISK FACTORS OF
VIOLENCE
Medical prevention of heart disease





Evaluate patient’s medical history
Family history
Diet
Weight
Exercise level
*CUMULATIVE EFFECT―More Risk
Factors
Greater Risk for Heart Attack/Disease
VIOLENCE RISK FACTORS
INDIVIDUAL
FAMILY
SCHOOL
PEERS
COMMUNITY
*NIMH Grant (MH51685) Meta-analytic study
INDIVIDUAL RISK FACTORS
1)
2)
3)
4)
5)
6)
Psychopathology, medical/physical
Substance abuse
Low IQ, learning disability
Neuropsychological, ADHD
Male gender & minority race
Aggression, antisocial
attitudes/beliefs
7) Violent victimization, PTSD
8) TV violence
Individual Risk Factors
9) Negative Attitudes- hostility,
inability to generate non-aggressive
solutions to interpersonal conflicts,
tendency to perceive hostile or
aggressive intent by others
10) Risk Taking/Impulsivity
11)Anger Management Problems
12) Poor Compliance with treatment
and supervision
13) Low Interest/Commitment to
School
Family Risk Factors
1) low socioeconomic status/poverty
2) antisocial parents
3) poor parent-child relationship
4) harsh, lax, or inconsistent discipline,
lack of supervision, lack of attachment,
affection, bonding, and love-oriented
discipline
5) Child abuse, neglect
6) Domestic violence
7) Parental separation, foster home
placement
8) weapons in family
9) parental substance abuse
Parenting Risk Factors
Deviant Parenting Characteristics:
• Parental criminality
• Parental attitudes favorable to substance use and
violence
• Parental Mental Illness
Family Disruption:
•
•
•
•
Parental separation
Divorce
Instability
Conflict/Domestic Violence
•
•
•
•
•
•
•
Corporal Punishment
Authoritarian Attitudes
Strict/Harsh Discipline
Laxness
Inconsistency
Lack of Love, bonding, attachment
Neglect/Low levels of involvement
Punitive-Child-Rearing Practices/Attitudes
Risk Factors
SCHOOL―Poor attitude and
performance, low commitment to
school, poor parental commitment to
school, poor academic resources in
community
PEER GROUP―weak social ties,
antisocial peers, gang membership
COMMUNITY―neighborhood crime,
drugs, neighborhood disorganization
VIOLENT VICTIMIZATION
AT HOME AND IN
COMMUNITY
Violent Victimization
Impacts:
1. Physical, medical, behavioral,
cognitive/neuropsychological,
emotional
2. PTSD
3. Depression
4. Substance Abuse
5. Increase possession and use of
weapons
Risk Factors for Adolescent
Violent Victimization









Family vulnerability to victimization
Family sociodemographic characteristics
Parental involvement in violent behavior
Parental substance abuse
Poor parental discipline and supervision
Adolescent social isolating from the family
Poor attachments to parents
Male gender
Prior adolescent victimization
 Esbensen et al., (1999)
TRAUMA AND VIOLENCE
FOCUS ON: INTENSITY, SEVERITY, FREQUENCY,
RECENCY of Trauma
97% of inner city youth are witnesses of violence,
70% have been victims of violence
INCREASES LIKELIHOOD OF:
1) Affects normal development in children
2) Distorts thought patterns
3) Creates anxiety/PTSD
4) Affects trust/intimacy
5) Affects ability to perceive emotional
reactions of others
(Fitzpatrick & Boldizar, 1993)
CUMULATIVE EFFECT OF RISK
FACTORS: VIOLENCE & HOMICIDE
The more risk factors, the greater likelihood (probability)
the offender will commit future acts of violence
Potential risk factors for violence at age 18 were measured
at ages 10,14, 16. (Individual, family, school, peer,
community)
Additive (cumulative effects) of risk factors revealed youths
exposed to multiple risks were notably more likely than
others to engage in later violence. Those exposed to more
than 5 risk factors compared to the odds for violence of
youths exposed to fewer than two risk factors at each age
were 7x greater at age 10, 10x greater at age 14, and 11x
greater at age 16.
Herrenkohl, 2000
Freewill & Choice vs.
Vulnerability & Resiliency
Resiliency is based upon exposure to
protective factors and less exposure
to risk factors.
Resiliency- the ability to adapt and
cope successfully despite threatening
or challenging situations.
METHAMPHETAMINE MOTIVATED
MURDER
-Understand the chronicity of the offender’s use,
i.e., the frequency, severity, intensity, and
duration of his use. Did the offender relapse
after multiple treatment attempts;
-Whether the defendant had a rational motive for
the offense or if it was based on a loss of
contact from reality, i.e., psychosis or substance
induced psychosis;
-If he/she had preexisting psychiatric symptoms
before his methamphetamine intoxicated state.
Was he/she involved in psychiatric psychotropic
medication treatment and/or relapse prevention
treatment at the time of the homicide;
-If he/she had a pattern of violent offending prior to
the homicide, and was this pattern drug related;
METHAMPHETAMINE &
MURDER
-If he/she could consider alternative courses of
actions instead of the offending behaviors, or if the
addictive qualities of the drug impaired such a
course;
-The expert should also consider whether the
defendant attempted to conceal the offense, avoid
detection, and was perceived by others as being
intoxicated
-Characteristics of the offense including its
premeditated and planned nature versus a
spontaneous and impulsive irrational and unplanned
sequence of events should be considered. The drug
intoxication’s effect on impulse control, planning and
sequencing abilities, and motor coordination may
also be relevant.
-Violent acts by the chronic methamphetamine user
may be more affective rather than instrumental in
nature
FORENSIC NEUROPSYCHOLOGY, ORGANICITY
AND THE “UNDERDEVELOPED BRAIN”
Association of brain to behaviorAbnormal brain functioning based on
ograncity impairs the inhibition of
violent impulses and behavioral
dyscontrol
Developmental
Neuropsychological/Cognitive
Impairments
Many capital
defendants have a
childhood/adolescent history of:
-Organicity (brain pathology & dysfunction)
-Low IQ & learning disability
-ADHD
-Cognitive impairment
- borderline range of intellectual
functioning
-Substance abuse
-Head Injury especially with loss of
consciousness
-Seizures- especially to temporal lobes
1)
2)
3)
4)
5)
6)
7)
8)
Mitigating Environmental
Factors Breed
Increased likelihood of pregnancy and birth
Neuropsychological
complications
Increase in maternal alcohol, nicotine, and drug use
Impairment
during pregnancyFAS
Domestic violence during pregnancy
Poor maternal & offspring nutrition & medical care
Large family size
Physical abuse and head trauma
Increase in deplorable home conditions
Increase in exposure to toxins, lead, parasites,
infection
9) Low socioeconomic conditions/low material education
10) Exposure to head injury in community
11) Parental abuse and neglect towards offspring
12) Brain dysfunction more common amongst substance
users – Users are more likely to have preexisting
neurological conditions and deal with conditions by
use of substances
ANATOMY OF THE BRAIN
FRONTAL LOBES & VIOLENCE
Bias an individual towards doing the harder
and less impulsive than the easier thing
*Impairment related more to impulsive
than premeditated aggression
Frontal Lobe
FRONTAL LOBES &
VIOLENCE
“Some of the most compelling
evidence regarding the association
between frontal lobe functioning and
aggression may emerge from studies
of individuals with no known history of
brain injury.” Hawkins & Trobst, 2000
Juveniles with biopsychosocial risk
factor demands of late adolescence
overload the late developing prefrontal
cortex.
Raine, 2002
CRIMINAL DIAGNOSES &
NEUROPSYCHOLOGY
Diagnoses of criminality including Conduct
Disorder and Antisocial Personality
Disorder- some symptoms may be
explained in some part by
neuropsychological/neurological
impairments.
(recklessness, impulsivity, appreciating
consequences, aggression, fear
conditioning to punishment, regulation of
arousal)
*Those delinquents with both conduct
disorder & ADHD have severest
executive functional deficits
FRONTAL LOBE
Last region of brain to fully
Frontal Lobedevelop
- Front part of the
brain; involved in planning,
organizing, problem solving,
selective attention, personality and a
variety of "higher cognitive
functions" including behavior and
emotions.
The anterior (front) portion of the
frontal lobe is called the prefrontal
cortex. It is very important for the
"higher cognitive functions" and the
determination of the personality.
Frontal Lobes
Impairment of recent memory,
inattentiveness, inability to concentrate,
behavior disorders, difficulty in learning
new information. Lack of inhibition
(inappropriate social and/or sexual
behavior). Emotional lability. Prefrontal
area: The ability to concentrate and attend,
elaboration of thought and interpretation of
external stimuli and events. The
"Gatekeeper"; (judgment, inhibition).
Personality and emotional traits.
FRONTAL LOBES &
BEHAVIOR
CHOICE vs........
•
Understanding, processing info.
•
Information processing and communicating
•
Understanding others’ reactions
•
Abstracting and reasoning
•
Controlling impulses/stopping
behavior/emotional regulation
•
Inability to use knowledge to regulate behavior
•
Distracted from persisting with appropriate
behavior
•
Lack appreciation of impact of behaviors onto
others
•
Manipulation of learned and stored information
when making decisions
Frontal-subcortical circuits
Acting on environment
1) Dorsolateral- organization of
information to facilitate a response
2) Anterior cingulate- motivated
behavior
3) Orbitofrontal- allows for
integration of limbic and emotional
information into behavioral
responses
Aggression, ADHD, schizophrenia,
mood disorders implicated
Frontal-subcortical
circuits
Circuitry sends large inhibitory
projections into the limbic system,
particularly the AMGYDALA.
*Use of alcohol and drugs disrupts
this circuitry, impairs reasoning and
impulse control in a system that is
already impaired.
Stressful environment also disrupts
circuitry
TEMPORAL LOBES
Temporal Lobe
TEMPORAL LOBES &
LIMBIC SYSTEM
STRUCTURES
1) Unprovoked
or exaggerated anger,
memory and intellectual
impairment
2) Behavioral dyscontrol
3) Receptive language impairment
GLOBAL COGNITIVE
IMPAIRMENT
*Most capital defendants referred for
neuropsychological assessment may
not have history of head injuries, but
rather have evidence of global
cognitive impairment.
Forensic Neuropsychological
Assessment
Functional
Cognitive
1) Executive
Functioning
Abilities
2) **Intelligence
3) Memory
4) Visuospatial Construction
5) Attention
6) Language
7) **Academic Achievementreceptive & expressive
language skills
8) Malingering*
Core Forensic
Neuropsychological Assessment
1) WAIS-III IQ testing
2) Academic achievement tests
3) WMS-III Memory Scales
4) Connors Continuous Performance
5) Rey Complex Figure Test
6) Wisconsin Card Sort Test
7) Booklet Category Test
8) Stroop Test
9) Verbal Fluency Tests
10)Trail Making Tests
11)Test of Memory Malingering
12)Word Memory Test
Neuropsychology &
Culpability
-Are there neuropsychological impairments
-Would these impairments influence his
ability to control his conduct, influence his
ability to perceive and appreciate the risk
in his conduct
-Explain how organicity and executive
functioning affect ability to regulate and
direct self-behavior, weigh risks, plan
behavior. Consider leadership role in crime
and whether crime was impulsive or
premeditated.
Thank You
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