Life, Death, and Neuroimaging: the Advantages and Disadvantages of the Defense's Use of Neuroimages in Capital Cases - Lessons from the Front - John H. Blume and Emily C. Paavola

• Publication year: 2011

Life, Death, and Neuroimaging: The Advantages and Disadvantages of the Defense's Use of Neuroimages in Capital Cases -Lessons from the Front

by John H. Blume* and Emily C. Paavola**

I. Introduction

Over the past several decades, commentators and scholars from the medical, legal, and social science fields have produced a massive body of literature on the intersection of law and neuroimaging.¹ Earlier writings focused on explaining various new techniques for developing brain images, exploring how such images might be relevant in legal proceedings, and addressing evidentiary issues posed by the use of such images in court.² More recent publications correspond with a vast

* Professor of Law, Cornell Law School; Director, Cornell Death Penalty Project, Ithaca, New York. University of North Carolina at Chapel Hill (B.A., 1978); Yale University Divinity School (M.A.R., 1982); Yale Law School (J.D., 1984). Member, State Bar of South Carolina.

** Executive Director, Death Penalty Resource & Defense Center, Columbia, South

Carolina. Baylor University (B.A., 2001); Cornell Law School (J.D., 2005). Member, State

Bars of New York, Indiana, and South Carolina.

1. See, e.g., Susan A. Bandes, The Promise and Pitfalls of Neuroscience for Criminal Law and Procedure, 8 Ohio St. J. Crim. L. 119, 119 (2010) ("The explosion of knowledge in cognitive neuroscience over the past decade has been stunning.").

2. See, e.g., Jennifer Kulynych, Psychiatric Neuroimaging Evidence: A High-Tech Crystal Ball?, 49 Stand. L. Rev. 1249, 1250 (1997) ("This note explores the thorny evidentiary issues posed by neuroimaging in the context of psychiatric diagnosis, an area in which standards for admitting expert testimony are poorly articulated.").

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expansion of research and funding in the area of neuroscience and address a wide variety of topics, such as the use of neuroimaging to detect deception,³ predict recidivism and future dangerousness,⁴ explain the effects of trauma and mental illness,⁵ gather information from international terrorists,⁶ and even predict whether a person has a general propensity for violence.⁷ Other, more cautionary pieces have raised questions about the ethical implications as well as the financial, social, and moral costs associated with the use ofneuroimaging in these contexts.⁸

In this Article, we examine the use of neuroimaging in capital cases with a practical, case-based perspective and conclude that brain imaging can be an important, helpful, and successful tool for capital defenders, but there are serious risks that must be considered before determining whether to employ these techniques. Drawing on examples from our own practice, we discuss the role neuroimaging can play in capital cases. More importantly, however, we also discuss the pros and cons of the defense's use of neuroimaging in these cases. Our take-home message is that neuroimaging is never the first option in a capital case, and it should only be considered after (1) a comprehensive social history investigation has been conducted; (2) a comprehensive neuropsychological battery of tests has been administered to the client; and (3) the client

3. See generally, e.g., Margaret Talbot, Duped: Can Brain Scans Uncover Lies?, New Yorker, July 2, 2007, at 52.

4. See, e.g., David M. Eagleman, Neuroscience and the Law, 45 Hous. Law, Apr. 2008, at 36, 37 ("Can neuroscience inform sentencing guidelines by offering better prediction of recidivism?"). See generally J.W. Looney, Neuroscience's New Techniques for Evaluating Future Dangerousness: Are We Returning to Lombroso's Biological Criminality?, 32 U. Ark. Little Rock L. Rev. 301 (2010).

5. See generally Lydia D. Johnson, Guilty or Innocent? . . . Just Take a Look at My Brain-Analyzing the Nexus Between Traumatic Brain Injury and Criminal Responsibility, 37 S.U. L. Rev. 25 (2009).

6. See generally Jonathan H. Marks, Interrogational Neuroimaging in Counterterrorism: A "No Brainer" or a Human Rights Hazard?, 33 Am. J.L. & Med. 483 (2007); Jennifer Wild, Brain Imaging Ready to Detect Terrorist, Say Neuroscientists, 437 Nature 457, 457 (2005).

7. See O. Carter Snead, Neuroimaging and the "Complexity" of Capital Punishment, 82 N.Y.U. L. Rev. 1265, 1266 n.2 (2007) (internal quotation marks omitted) (discussing an article in the New York Times Magazine that predicted "brain scanning to identify criminal suspects" would be a topic that the Supreme Court of the United States may be called upon to address in the future).

8. See, e.g., Michael L. Perlin, "And I See Through Your Brain:" Access to Experts, Competency to Consent, and the Impact of Antipsychotic Medications in Neuroimaging Cases in the Criminal Trial Process, 2009 Stan. Tech. L. Rev. 4 n 25-43 (2009) (raising ethical considerations related to a criminal defendant's competency to consent to the imposition of a neuroimaging test or examination, and the impact of antipsychotic medications at the time that such a test is performed).

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has been evaluated by a neuropsychiatrist or neurologist who is familiar with neuropsychological testing and its social history and who is sensitive to the dangers of neuroimaging. In sum, neuroimaging is not an investigative tool; it is a confirmatory and explanatory tool (and even then, only in the right case). Part II of this Article briefly describes some of the most commonly used imaging techniques in capital cases. Part III uses a case example to illustrate how a carefully crafted mitigation story can successfully incorporate cutting-edge brain imaging. Part IV, however, describes some potential disadvantages and risks we have experienced. Part V concludes this Article with a brief list of practical "lessons from the front."

II. BACKGROUND: TYPES OF NEUROLOGICAL TESTING USED IN

CAPITAL CASES

Others have already written extensively and aptly about the variety ofneuroimaging techniques that exist, how the techniques work, and the pros and cons of each technique.⁹ By way of background, we offer a brief summary of the testing methods most commonly used in capital

cases.

A. Nonimaging Methods of Testing

Long before neuroimaging became common, there were-and still are-a variety of nonimaging testing methods available to measure brain dysfunction.

1. Neuropsychological Assessment. Neuropsychological assessment is a method-and, we submit, the most reliable method-for acquiring data about a subject's cognitive, emotional, and executive functions.¹⁰ Neuropsychological tests use specifically designed tasks to measure a psychological function that is known to be linked to a particular brain structure or pathway. Some of the major domains of functioning that can be assessed with neuropsychological testing include: (1) attention and concentration; (2) visual perception and reasoning; (3) memory; (4) learning; (5) verbal functions; (6) academic skills; (7) construction; (8) concept formation; (9) self-regulation and motor ability; and (10) emotional status. An expert making a neuropsychological assessment often gives a battery ofcommonly used tests to measure each of the major domains.¹¹ The subject's raw score on each test is typically

9. See generally Kulynych, supra note 2.

10. Muriel Deutsch Lezak, Neuropsychological Assessment 20 (3d ed. 1995).

11. Id. at 121-22.

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compared to a general-population normative sample that should ideally be drawn from a population comparable to the person being exam-ined.¹² Normative studies frequently provide data stratified by age, level of education, or ethnicity. In addition to individual testing, a neuropsychological assessment may also focus on a person's psychological, personal, interpersonal, and wider contextual circumstances.

2. Neurological Evaluation. A neurological evaluation is a clinical assessment aimed at detecting any abnormalities that may be related to a dysfunction in the nervous system.¹³ The evaluation is generally conducted by a specialist in neurological disorders, such as a neurologist or a neurosurgeon, depending on the disorder in question. A neurological evaluation may include up to three general components: (1) a review of the individual's medical and social history, including any present medical complaints; (2) a general neurological examination; and (3) diagnostic testing focused on the nervous system.¹⁴ The neurological exam is a physical examination focused on the parts and functions ofthe body that are most often impacted by a problem in the central nervous system. It may include an examination of the head and neck, cranial nerves, motor skills, reflexes, coordination and gait, and sensory abilities. After a review of the individual's history and present functioning, more targeted diagnostic testing can be used to help detect or confirm a suspected pathology.¹⁵ Diagnostic testing can include neuroimaging, but the testing may also consist of nonimaging techniques, such as nerve conduction studies, blood tests, testing of spinal fluid, and biopsy or removal of tumors.

3. Neuropsychiatric Evaluation. Much like a neuropsychological evaluation, a neuropsychiatric evaluation is intended to measure cognitive and mental functioning, but the latter focuses more specifically on mental disorders associated with diseases of the nervous system. Neuropsychiatry is a subspecialty of psychiatry rooted in the idea that psychiatric symptoms are traditionally often linked with specific brain structures and abnormalities. A neuropsychiatric evaluation can be performed by a neuropsychiatrist or by a traditional psychiatrist who seeks referrals for additional neurological testing to compliment the psychiatric evaluation.

12. Id. at 98-99.

13. See Bernard J. Alpers & Elliott L. Mancall, Essentials Of The Neurological Examination 1-32 (4th ed. 1975).

14. See id. (discussing appropriate steps for a complete neurological evaluation).

15. Id.

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B. Structural Imaging

...