ABA Journal



Brain Trials: Neuroscience Is Taking a Stand in the Courtroom

Nov 1, 2012, 10:20 am CDT


Thank you for this very interesting and informative article.  I’ve nursed from Wash. DC to Hawaii, in many fields of nursing, including psych. (at UCLA).  And, as a Legal Nurse Consultant now, I have
not been involved in any such cases, using brain abnormalities as a legal defense for criminal behavior. It’s a very interesting field.

Lisa Morgan, RN, BA
Legal Nurse Consultant
Santa Barbara, CA

By Lisa Morgan, RN, Legal Nurse Consultant on 2012 10 29, 10:30 pm CDT

TO: Kevin Davis: You are an incredible writer.  This material has always intrigued me and you cited so many cases that could either prove or disprove ‘the point’—the jury’s diction—depending on what side you were on.  Now that I know who you are I’m definitely going to get a copy of Defending The Damned to see what else you can teach us!

Posted by:
ASK: Adrienne Sioux Koopersmith
Screenwriter - Author - Eventologist - Promoter
Studio 1437
Chicago - IL USA

By ASK: Adrienne Sioux Koopersmith on 2012 11 01, 6:06 pm CDT

Hi to Kevin.  Most of your very interesting article is way over my head, but I think I followed it pretty good. I believe this issue is going to be huge for this generation of veterans returning home from Iraq/Afghanistan. These will be the hidden costs of these wars-is this country up to these challenges-I wonder. Take care, - riz

By John Risdon on 2012 11 01, 6:10 pm CDT

TO: Kevin Davis:  Your highly detailed informative story spotlights extreme cases that reach the courts, no doubt a judicial nightmare for all concerned who have to react to scientific evidence never before considered.  A job well done.

More importantly, besides the Vets, who deserve every resource available to their well-being, your story sheds light on mental illness in general suffered by millions of people trying to live “normal” lives.  So many innocent, kind acting people walk around every day of their lives hiding from society the fact that they are suffering.  They too should have the comfort to know, through no fault of their own, that their illness is just that…a misfiring in the brain.  They should be able to talk freely about their condition to a compassionate society.  It would release a lot of stress that often creates an episode they cannot control, the victim often being themselves.  Forgive me for using your story for my advocacy for freedom for mental illness.

Your writing is superb.  People should read your book Defending the Damned as someone mentioned above.

By BETTY FOX on 2012 11 01, 6:53 pm CDT

My mother was murdered the day before Thanksgiving in 2003, while preparing for the festivities.
The person responsible for the murder was someone I casually dated for a year. He became obsessed with me. After about 6 months of seeing each other approximately two times a month I decided that the relationship was not going to go anywhere other than friendship. I thought that by pulling away from him he would get it through his head that I was not interested. However, it did not. I finally sat down with him and with sensitivity and told him we could continue as friends. Previously before I had that conversation with him, I found out he was coming to my home without my knowledge and was trying to befriend my mother to gain her approval and possibly influence the relationship since he knew my mother was my best friend, in addition, in the spring before the murder, we had a conversation about CSI or something like that and I said I do not understand why people commit murder when there are so many tools to catch murder’s. His response was that he believed he could get away with murder.
Following breaking the news to him, we still were friends, I even brought him a care package when he called me (the Monday prior to my mothers death,) and sounded very sick.
Tuesday, he came by my office and brought me cookies and coke, either of which I do not eat or drink. Never the less, he seemed much better and thanked me for the care package.
The next day my mother was stabbed to death.
Needless to say, he was never heard from again.
It took almost 10 years for the detectives to match his DNA found under my mothers index finger as she fought off the monster who stabbed her 13 times.
I am now a psychology major and have been inspired by nuero psychology and research and am intrigued by the thought that abnormal brain construction can prove that a person can commit murder. I do not believe this should be used as a defense but as a tool for prosecutors to prove a man who looks normal is capable of murder. The fact that this science can lead to the possibility of reducing the sentence of a monster who does not belong on the streets has made me not want to pursue this type of research.

I hope for anyone’s sake that believes that this science should be used to help murderer’s, never has to walk in my shoes and read people talking about that poor monster who can not control themselves and that it’s not their fault that they killed mothers, fathers, children and even grandparents.

By HAS on 2012 11 02, 9:38 am CDT

Asking “whether Weinstein’s brain made him do it or not” seems like a strange question when it is pretty clear that your brain makes you do everything that you do. Of course, everyone’s brain is different to the extent that everyone’s genes are different. Combine that with the different environments into which people are born and which mold their brains accordingly, and you get the great diversity of behavior that you see across humanity.

If we can assume that all criminal behavior is the result of some malfunctioning of the brain, then one issue that this article raises is whether the law should treat differently those whose brain defects are sudden versus those whose brain defects develop over time. On the one hand, you have “normal” people whose brains suddenly are injured from car accidents, tumors, war etc. On the other hand, you have people who happen to be born with a certain set of genes leading to a brain that might make them more prone criminal behavior, and at the same time, they might also have had the misfortune of growing up in an environment that exacerbates their natural condition. Randomness and luck plays a part in both of these situations. If people in both groups commit crimes, should we punish the latter group more harshly than the former?

By bignurse on 2012 11 02, 4:12 pm CDT

J. Stewart Nov. 5, 2012

Talk about opening a can of worms and Pandora’s box!  As an addendum to “bignurse’s” Nov. 2nd comment, why not immediately begin devising a chart of sorts comprised of multitudes of brain scans (in full color, of course) designating in exquisite detail damaged and/or abnormal brains.  A concerted nationwide or even worldwide search effort would ensure inclusion of sufficient quantities and varieties to guarantee a broad enough base to preclude bias in the courts.

They could be coded by age, sex and percent of area of damage, and perhaps an additional range of identifying categories.  All data could be assimilated into a sophisticated computer program to then be made available to “our lawmakers” via easily viewed CD’s to assign appropriate punitive or non-punitive, as the case may be, action.  Choice of actions would be color-coded and ID’d to be automatically selected for application to certain mis-deeds performed by a “perp” with a certain brain scan.  This will require the implementation of mandatory brain scans upon arrest of all “perps” for ease of determining proper case disposition.
Before trial or other resolution, for example, Murder Defendant A, male, age 50 with 80% brain damage or abnormality matching a similar image found on the newly devised system would automatically be assigned a get-out-of-jail-free designation and go directly into some ward-of-the-state facility.  There said Defendant would remain for some indeterminate time, subject to periodic brain scans, in case such would show sufficient improvement approaching normalcy to compel release back into the community.  Whereas, Murder Defendant B, female, age 20 with 5% damage/abnormality would match the system’s designation for life imprisonment with possibility for parole after 30 years.

This system would streamline our courts and could of course be reviewed periodically, perhaps every 4 years in November.

By J. Stewart on 2012 11 06, 4:00 am CST

Comment removed by moderator.

By Noelia on 2012 11 07, 1:02 pm CST

The argument that a brain damaged person “chooses” a behavior is fallacious. In non damages brains the formative years are used to learn how to “operate” the brain we were born whit. We are taught values. etc. and in general “get the hang of it.” If there is sudden and catastrophic TBI—even assuming we can say that a person with THAT brain CAN make a rational and morally correct choice (which we admittedly do NOT yet know)—they have not had time to learn to “drive” their new brain.

To hold them to the same standard of “ability to choose” is a far cry from common sense, or justice. But then, those drawn to prosecution work are pretty moralistic and don’t like ANY defense.

By ECS on 2012 11 09, 11:44 pm CST

Our first consideration must always be the health, safety and well-being of the public, not the offender.  All the current political debate about “free will” should not exploit the issue of what to do about those who are criminally insane.  All kinds of things can cause criminal insanity besides traumatic brain injury (tumors, hormones, genetics, alcohol, drugs, etc. etc, etc,).  There is no material difference between causes when the effect ends up the same, so the underlying cause does not merit any differentiation in our treatment of the offender.

All we need is a simple decision: was the offender sane or not?  Claiming that one underlying cause of criminal insanity as deserving of more protection than others grants privileges based on subjective emotional appeal and ideology, which does not serve justice.  There is no sliding scale of free will - you either have it in your possession or you do not.

By sunforester on 2012 11 10, 6:07 pm CST

Simple my ass.

By ECS on 2012 11 10, 7:21 pm CST

Right, capital (money or orpaeting funds) has nothing to do with capitalism.  Making a movie (which is a private enterprise between partners) and you paying to see the movie has nothing to do with capitalism, right?  And then suing for what you think you are owed from this private enterprise has nothing to do with capitalism, right?  You must be a graduate of an American school with a 4.9 GPA all extra credit, right?  What is your area of expertise, liberal arts?  Are you a teacher too?  Boy, are we in trouble if you are.Capitalism is an economic system in which the means of production are privately owned and operated for a private profit; decisions regarding supply, demand, price, distribution, and investments are made by private persons in the free market; profit is sent to owners who invest in businesses, and wages are paid to workers employed by businesses and companies.There is no controversy that private ownership of the means of production, creation of goods or services for profit in a market, and prices and wages are elements of capitalism. Some define capitalism as where all the means of production are privately owned, and some define it more loosely where merely most are in private hands.And don’t tell me Wikipedia is not a good info source because Wikipedia got all of it’s definitions from Webster’s Dictionary.  Do you believe in the Webster conspiracy too?

By Craig on 2012 11 15, 1:13 am CST

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