Forensic Applications of Neuropsychology in Capital Cases Elizabeth L. Leonard, Ph. D Neurocognitive Associates Scottsdale, AZ Program in Psychiatry and the Law Beth Israel Deaconess Medical Center Harvard Medical School Boston, MA
Clinical Neuropsychology is an applied science examining normal and abnormal brain function on a broad range of cognitive, emotional and behavioral functions that includes • Objective neuropsychological and psychological tests • Behavioral observations • Clinical interview • Collateral medical information – i. e. neuroimaging and neurodiagnostic studies The Clinical Neuropsychologist, 21, 209 -241, 2007
Neuropsychologist A clinical neuropsychologist is a licensed psychologist with advanced training in the normal and abnormal relationships between brain functioning and behavior. Neuropsychologists evaluate cognitive function through objective measures and determine patterns of strength and weakness for diagnosing and treating nervous system disorders.
Forensic Neuropsychology Application of clinical neuropsychology to issues of civil and criminal law, particularly relating to claims of brain injury or impairment that includes: • • Assessment Diagnosis Treatment Advocacy Expert testimony Research Policy analysis
Areas Evaluated in Neuropsychological Testing Intelligence Memory Attention Concentration Learning Memory Language Visual-spatial skills and perception Motor and sensory skills Mood and personality
Expert Witness An individual qualified to testify regarding scientific, technical, or professional matters and provide an opinion concerning the evidence or facts presented in a court of law. Based on special skills or knowledge judged by the court. Standards consistent with Fed. Rules of Evidence 702 (Daubert v. Merrell Dow 1993) APA Dictionary of Psychology 2007
Daubert Hearing and Criteria Pretrial hearing in federal courts to determine if expert opinions meet scientific criteria regarding relevancy, reliability, testability, evidence of peer review and general acceptability with the scientific community
Forensic Testimony: Civil Guardianship Testamentary capacity Abuse and neglect • Child and elder abuse Custody Termination of parental rights Disability – Workers’ Compensation Educational issues Employment issues Physical and emotional injury
Forensic Testimony: Criminal Competence to stand trial • State jurisdictions – Dusky v. United States Understanding of charges Understanding of court proceedings Ability to assist in his/her own defense Evaluation of criminal responsibility Mental status at the time of the offense • Not guilty by reason of insanity (NGRI) • Guilty except insane (GEI) Evaluation to proceed Transfer of minors to adult court
Informed Consent Voluntary agreement to participate in a therapeutic procedure on the basis of the patient’s understanding of its nature, potential benefits, risks and available alternatives. APA Dictionary of Psychology 2007
Confidentiality Ethical principle requiring mental health providers to limit the disclosure of a patient’s identify, condition, or treatment and any data entrusted to professionals during assessment, diagnosis and treatment against unauthorized disclosure. Also applies to research subjects and survey respondents APA Dictionary of Psychology 2007
Privilege Legal right of an individual to confidentiality of personal information obtained in the course of their relationship during the course of treatment. APA Dictionary of Psychology 2007
Mental Status Examination (MSE) Comprehensive assessment that includes data based on clinical interview, tests, record review, assessment of personality, medical, educational and vocational history and mental status.
Mental Status Global assessment of cognitive, affective, and behavioral state by mental examination that includes: • • • General health Appearance Mood and affect Speech and language Form and content of thought Orientation and memory Gross and fine motor skills General intellect Insight, judgment, and reasoning
Insanity Legal definition that specifies a condition of mind that renders a person incapable of being responsible for his/her criminal behavior and lack criminal responsibility for their conduct. Definition based on legal standards Determined by judges and juries not psychologists or psychiatrists APA Dictionary of Psychology 2007
Psychosis An abnormal mental state marked by serious impairments in most fundamental higher brain functions including: • • • Perception – hallucinations and delusions Cognition Cognitive processing Emotions Affect
Hallucination A false sensory perception that has a compelling sense of reality despite the absence of an external stimulus that can affect any sensory modality. • Psychosis Schizophrenia, delusional and mood disorders • Non psychotic causes Epilepsy Brain tumors Substance use Other medical conditions APA Dictionary of Psychology 2007
Delusion An improbable, often highly personal, ideas or belief system, not culture bound, that is maintained with conviction in spite of irrationality or evidence to the contrary • Delusional characteristics Fragmentary Fixed Elaborate APA Dictionary of Psychology 2007
Psychotic Symptoms Delusions • Persecutory • Ideas of reference Thought insertion Thought broadcasting Hallucinations • Auditory – with and without command • Visual • Tactile Grossly disorganized speech
Malingering Intentional exaggeration or feigning of symptoms of illness for external gain. Types of gain may include: • • • Monetary compensation Certification of disability Avoidance of work Psychological factors to perpetuate sick role Avoidance of punishment APA Dictionary of Psychology 2007
Domains of Cognitive Function Verbal abilities • Fund of knowledge • Comprehension • Reasoning • Vocabulary Perception • Visual-spatial analysis • Construction • Auditory perceptual tasks
Domains of Cognitive Function Working Memory • Digit repetition • Mental arithmetic Processing Speed • Timed measures of attention and concentration employing multiple cognitive dimensions including perception, motor speed, decision making and similar skills
Neuropsychological Testing Individually administered, psychometrically sound instruments with norm referenced scoring. Scores are based on a bell-shaped distribution with a mean of 100 and a standard deviation of 15. Scores ranging between 85 -115 are within the normal range.
Neuropsychological Tests Wechsler Adult Intelligence Scale IV Wechsler Memory Scale IV California Verbal Learning Test – II Delis-Kaplan Executive Function Scale • Inhibition • Sequencing • Verbal fluency • Abstract reasoning and decision making Minnesota Multiphasic Personality Inventory – II Motor speed and dexterity measures
Neuropsychological Test Data Behavioral data measures abstracted from test Capacity for abstract and analytic reasoning Ability to inhibit impulsive responding Emotional regulation Cognitive capacity for decision making and mental tracking and flexibility to modify behavior • Ability to communicate affect • Interpretation of nonverbal communication • Ability to use learned behavior to regulate responses and anticipate consequences of actions • •
Neuropsychological Tests Mood anxiety scales • Beck and Hamilton depression scales • Yale-Brown Obsessive-Compulsive Disorders scale Symptom validity tests • Test of Memory Malingering (TOMM) • Validity Indicator Profile • b Test Achievement reading tests measuring math and • Wide Range Assessment Test • Wechsler Individual Achievement Test • Woodcock-Johnson Tests of Achievement
Intelligence A multifactorial and multidimensional construct that comprises cognitive skills used for reasoning, understanding, perceptual and information processing that permits rational thought, decision making and learning
Intelligence Testing: WAIS IV Full Scale IQ Verbal Comprehension Similarities Vocabulary Information Comprehension Working Memory Digit Span Arithmetic Letter-Number Sequencing Perceptual Reasoning Block Design Matrix Reasoning Visual Puzzles Figure Weights Processing Speed Symbol Search Coding Cancellation
Neuropsychological Tests: Content on Ability Tests Verbal subtests • Information – general fund of knowledge Who was the first President of the United States ? • Verbal reasoning – analytical language facility In what way are the words exit and entrance alike? • Vocabulary – ability to define increasingly abstract and complex single words What does building mean? What does carnival mean?
Memory The ability to retain learned information over time. • Encoding • Retention • Retrieval Recall • Free recall • Delayed recall Spontaneous Cued Recognition memory
Memory Disorders Amnesia Fugue states Dissociation
Neuropsychological Factors to Consider in Capital Cases Biopsychosocial models of mental health take into consideration the role, interface and interaction of biological, environmental and sociological factors in the development, integration and function of mental behavior. Is there convergent support to opine that there is a defined relationship between brain function and behavior?
Biopsychosocial Factors Medical • • risk factors affecting mitigation Low birth weight and perinatal complications Intrauterine substance exposure History of head injury Attention Deficit Disorder Conduct disorders and juvenile delinquency Learning disabilities Poor school performance - truancy Toxic exposures - lead
Biopsychosocial Factors Heredity • Family presence of serious mental illness such as schizophrenia, bipolar illness, major affective disorders Environment • Poverty • Malnutrition • History of abuse, neglect, domestic violence • Quality of parenting
Risk Factors for Capital Defendants Low IQ and borderline function (FSIQ of 70 -85) History of academic failure Head injury Organic brain impairment Substance use and dependency Disrupted or troubled family of origin Psychiatric illness
Neuroanatomical Locus for Violent Behavior Prefrontal cortex Frontal lobes Temporal lobes • Amygdala Limbic system
Mitigating Factors in Capital Cases Approximately 33 percent of capital defendants have evidence of neuropathological damage. Role of neuropsychology in evaluating psychological function that bears on capital defendant’s ability to demonstrate: • Intention and inhibition • Directed and regulated behavior • Evaluate consequences and risks Fabian JM Forensic Neuropsychological Assess. and Death Penalty Lig. The Champion 2009
Neuroimaging Techniques Magnetic resonance imaging (MRI) Single photon emission computed tomography (SPECT) Positron emission tomography (PET) Electroencephalography (EEG) Functional magnetic resonance imaging (f. MRI).
Brain Imaging Structural imaging • Computed axial tomography (CT) • Magnetic brain imaging (MRI) Functional imaging • Functional magnetic brain imaging (f. MRI) • Positron emitting technology (PET)
Brain CT
Brain MRI
f. MRI Scan
Disemination of New Research
Use of Imaging in Criminal Court: Rampage Shooters
FMRI Lie Detection
Thought Police
Imaging Data as Evidence No 1: 1 correspondence between structure and function Images mapped onto surface, averaged on individuals Temporal relationship between crime and scanning Neuronal activity isn’t directly measured Within subjects v. between subjects design Normal v. abnormal Correlation isn’t causation
Neuropsychological Features of Murder Defendants A study of 77 murderers examined by neuropsychological testing revealed: • Elevated rate of developmental disorders including ADHD and intellectual disability (mental retardation) • Increased rate of psychopathology, TBI, seizure disorders and neuropsychological dysfunction • Mean FSIQ of 84. 7 low average (Range 53 -130) • 33 percent of sample had a PSI of mildly impaired to borderline significant with right hemisphere impairment Hanlon RE, Rubin LH, Jensen M, Daoust S Archives of Clinical Neuropsychology, 25, 1, 1 -13, 2009
NP Testing of Murder Defendants Processing speed was low average (M=83. 3) with 41% of visual processing being deficient or borderline 55% of sample had deficient executive function Delayed recall for verbal information was low average (WMS LM II Mean ss= 7. 3) RE, Rubin LH, Jensen M, Daoust S Archives of Clinical Neuropsychology, 25, 1, 1 -13, 2009 Hanlon
Summation “The goal of mitigation at capital sentencing is to make the jury think and reflect on whether the death penalty is an appropriate punishment for the defendant and whether he is death worthy. Neuropsychological evidence as mitigation does not constitute a justification or excuse for the offense in question, but it may be considered as extenuating or reducing the degree of moral culpability. ” Fabian JM Forensic Neuropsychological Assessment 2009
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