“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

Any MentalHealth Problem

State Prison

56%

Fed. Prison 45%

Local Jail

64%

Recent History

24% 14% 21%

Symptoms of PsychiatricProblem

49% 40%

60%

Competency to Waive Miranda Rigthts

1) Voluntary2) 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 waiverIntimidation, 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 innocent3) Belief he can handle his own case4) Police will get angry upset5) Police will think I am guilty6) To cooperate, get information and ask

questions

Who has trouble waiving their Miranda?

1) IQ lower than 70- *Verbal IQ2) Reading comprehension below 7th grade3) Poor listening comprehension4) History of mental retardation5) Neuropsychological impairment & head

injuries, ADHD6) Schizophrenia, mental retardation7) Age8) Poor SES & Education9) Interrogation suggestibility10)Interrogation context, nature of police

coercion

Competency to Waive Miranda Evaluation

1) IQ testing2) Academic achievement, reading3) Neuropsychological testing including

assessment of attention and short-term verbal memory

4) Adaptive functioning skills 5) Malingering6) Suspect’s current understanding of the

Miranda card he was given7) 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 records2) Criminal history/prior arrest records3) Miranda waiver card used and specific

language of the waiver4) Written waiver/statement, audio/visual

record of statement5) Suspect blood/alcohol level at time of

alleged offense/statement6) Do not inform defendant of Miranda

information before evaluation

Garner vs. Betty Mitchell502 F.3d 394(2007)

U.S. Court of Appeals 6th Circuitruled that D did not knowingly and intelligently waive his Miranda rights- reversed district court’s judgment and ranted conditional writ of habeas corpus.

*Defendant had IQ of 76Court found D could not define word “right” and did not understand right to remain silent.

Garner vs. Betty Mitchell502 F.3d 394(2007)

Court considered:1) Defendant’s low IQ2) Poor education3) Lack of prior experience with criminal

justice system4) Young age5) Unrebutted expert evidence6) Warnings were not explained for him in

simple terms7) D had no assistance from lawyer, social

worker, or family member

State v. Caldwell611 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:

SchizophreniaMental 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 7-4.2(c) Obligation to raise 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 Decisions-Procedural 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 11.1  (2007) A defendant is mentally incompetent to

stand trial or to be sentenced for a defense 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 Understanding- requires 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. Nevada504 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 AmnesiaWilson vs. United States

391 F. 2d 460 (1968)

Amnesia per se does not constitute

incompetency

INSANITYCode of Ala. § 13A-3-1  (2007)

At the time of the commission of the acts 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 cyber-crime, 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

choices3) Responsibility for mental condition i.e., use of substances refusing

treatment, noncompliance4) 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 childhoodBarnett et al., 2004

Interaction of Various Homicide Risk Factors

Determinism

Prosecution TheoryFreewill Approach to Violence and

Homicide

Moral Culpability, Blameworthiness, &

DeathworthinessProsecution―Freewill & ChoiceDefense―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). Strickland v. Washington, 466 U.S. 668 (1984). [2] Wiggins v. Smith, 539 U.S. 510 (2003).[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 theThe American Bar Association Guidelines for the Appointment and Performance of Defense Appointment and Performance of Defense Counsel inCounsel in Death Penalty Cases (rev. ed. 2003).Death Penalty Cases (rev. ed. 2003).[2] Id. Guideline 10.7- Investigation. [2] Id. Guideline 10.7- Investigation. [3] Id. Guideline 10.4-The Defense Team.[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 bio-psycho-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?

Research Profiles of Death Row 1) IQ’s around 80 indicating borderline range of intelligence;

2) low commitment to school and poor academic 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) Reducing risk 2) Reducing negative chain reactions3) Establish self-esteem and self-efficacy4) 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 FactorsGreater Risk for Heart Attack/Disease

VIOLENCE RISK FACTORS

INDIVIDUALFAMILYSCHOOLPEERSCOMMUNITY

**NIMH Grant (MH51685) Meta-analytic studyNIMH Grant (MH51685) Meta-analytic study

INDIVIDUAL RISK FACTORS

1) Psychopathology, medical/physical

2) Substance abuse3) Low IQ, learning disability4) Neuropsychological, ADHD5) Male gender & minority race 6) Aggression, antisocial

attitudes/beliefs 7) Violent victimization, PTSD8) 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/Impulsivity11)Anger Management Problems12) Poor Compliance with treatment and supervision13) Low Interest/Commitment to School

Family Risk Factors

1) low socioeconomic status/poverty2) antisocial parents3) poor parent-child relationship4) harsh, lax, or inconsistent discipline,

lack of supervision, lack of attachment, affection, bonding, and love-oriented discipline

5) Child abuse, neglect6) Domestic violence7) Parental separation, foster home

placement8) weapons in family9) 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

Punitive-Child-Rearing Practices/Attitudes• Corporal Punishment• Authoritarian Attitudes• Strict/Harsh Discipline• Laxness• Inconsistency• Lack of Love, bonding, attachment• Neglect/Low levels of involvement

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 membershipCOMMUNITY―neighborhood crime, drugs, neighborhood disorganization

VIOLENT VICTIMIZATIONAT HOME AND IN COMMUNITY

Violent Victimization Impacts:1. Physical, medical, behavioral,

cognitive/neuropsychological, emotional

2. PTSD3. Depression4. Substance Abuse5. Increase possession and use of

weapons

Risk Factors for Adolescent Violent Victimization

Family vulnerability to victimizationFamily vulnerability to victimization Family sociodemographic characteristicsFamily sociodemographic characteristics Parental involvement in violent behaviorParental involvement in violent behavior Parental substance abuseParental substance abuse Poor parental discipline and supervisionPoor parental discipline and supervision Adolescent social isolating from the familyAdolescent social isolating from the family Poor attachments to parentsPoor attachments to parents Male genderMale gender Prior adolescent victimizationPrior 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 children2) Distorts thought patterns3) Creates anxiety/PTSD4) Affects trust/intimacy5) 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 violencePotential 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 behavior- Abnormal brain functioning based on ograncity impairs the inhibition of violent impulses and behavioral dyscontrol

Developmental Neuropsychological/Cognitive

ImpairmentsMany 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

Mitigating Environmental Factors Breed

Neuropsychological Impairment1) Increased likelihood of pregnancy and birth complications

2) Increase in maternal alcohol, nicotine, and drug use during pregnancy- FAS

3) Domestic violence during pregnancy4) Poor maternal & offspring nutrition & medical care5) Large family size6) Physical abuse and head trauma7) Increase in deplorable home conditions8) Increase in exposure to toxins, lead, parasites,

infection9) Low socioeconomic conditions/low material education10) Exposure to head injury in community11) Parental abuse and neglect towards offspring12) 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 LOBELast region of brain to fully

developFrontal Lobe - 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 circuitsActing on environment

1) Dorsolateral- organization of information to facilitate a response2) Anterior cingulate- motivated behavior3) 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 dyscontrol3) 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 Abilities 1) Executive Functioning2) **Intelligence3) Memory4) Visuospatial Construction5) Attention6) Language7) **Academic Achievement-

receptive & expressive language skills

8) Malingering*

Core Forensic Neuropsychological Assessment

1) WAIS-III IQ testing2) Academic achievement tests3) WMS-III Memory Scales4) Connors Continuous Performance5) Rey Complex Figure Test6) Wisconsin Card Sort Test7) Booklet Category Test8) Stroop Test9) Verbal Fluency Tests10)Trail Making Tests11)Test of Memory Malingering12)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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