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“His brain made him do it” and so I feel much less empathy for him 

Monday, January 26, 2015
posted by Rita Handrich

brain based MI 2015We’ve written about the brain based defenses a lot here. And here’s an article that may shed light on how the presentation of neural defenses could backfire on defense attorneys.

First, let’s look at the research. The researchers wondered how the biological explanation of mental illness might affect the empathy of mental health clinicians toward the patient. To test their hypotheses, the researchers performed three studies with a total of more than 300 participants (all mental health clinicians—psychologists, psychiatrists, counselors, and social workers).

What they found in the studies (using vignettes focused on clients/patients presenting problems of social phobia and depression) was surprising. Mental health professionals are trained to find ways to empathize while maintaining objectivity with their clients/patients. However, simple exposure to a biological explanation for the mental health issues resulted in mental health professionals reporting less empathy for the individual presenting for help.

When the researchers offered both biological and psychosocial explanations for the mental health issues (emphasizing biological causes in one experimental condition and psychosocial causes in the other condition), the mental health professionals were still less empathic when the explanation they heard emphasized biological explanations for the mental illness. Our take on this reaction is that empathy is reserved for circumstances that we can relate to, and that evoke some identification with the underlying problem. We understand and to some extent can relate to family tumult, loss, trauma, etc., how much can we empathize with a biological condition that results in anti-social behavior? It is a harder stretch.

From a litigation advocacy perspective, this raises red flags for the Defense attorney putting forth a biologically based (e.g., “his brain made him do it”) defense. If even trained mental health professionals are made less empathic by biological explanations for the mental illness, then what chance is there of non-mental health professionals feeling more empathic toward your client when they hear biological explanations for your client’s behaviors?

While neurological or brain-based explanations for behavior can sometimes be persuasive, they also categorize your client (the defendant) as something different from the jurors (i.e., not “like” the jurors). The creation of that distance can lead to objectification rather than identification with defendants, which isn’t usually helpful.

Even though jurors may accept the neurolaw defense, the defendant is alien to them, almost mechanistic and therefore not as likely to generate empathy and concern. For example, jurors may see your client as a psychopath and thus irredeemable (as well as very, very scary).

If the victim/Plaintiff is “like the jurors” and therefore worthy of empathy and concern—a neurolaw defense may work to the detriment of your client by increasing juror empathy for the victim/Plaintiff and decreasing empathy for the defendant (aka “that animal”). And while this defense may work to some extent in criminal courts, it seems that it would be a much more difficult position in a civil case.

Lebowitz MS, & Ahn WK (2014). Effects of biological explanations for mental disorders on clinicians’ empathy. Proceedings of the National Academy of Sciences of the United States of America, 111 (50), 17786-90 PMID: 25453068

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