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Of course it isn’t a surprise that they are gravely disturbed, but who knew it was neuropsychological?  This is an article from researchers at Northwestern University and looks very specifically at similarities and differences in the neuropsychological test scores of those who killed only children and those who killed some adults as well as children.

The researchers start by telling us that the murder of a child is among the “rarest and least understood categories of homicide”. It is a fairly gruesome inquiry that the researchers say is made all the more necessary with media coverage that has mostly focused on women who kill their children (often in an intense post-partum psychosis). The researchers say that the homicide of children occurs in many contexts and not all of those contexts include mental illness. They carefully review the literature on child homicide and even discuss the differences between mothers and fathers who kill their children. We are going to focus here on the neuropsychological differences between those that kill only children and those who kill adults as well as one or more children.

We also note that this is a small sample of 33 people (27 men and 6 women) convicted of 1st degree murder in three states (i.e., Illinois, Missouri, Indiana) who were referred for forensic neuropsychological evaluations to assess fitness to stand trial, criminal responsibility, or sentencing. Of this small group, the average age was 32 years, 48.5% were Black, 36.4% were Caucasian, and 12.1% were Hispanic while 3.0% were described as “other” in terms of race/ethnicity. The researchers said those convicted murderers who had killed adults as well as children were comparable to what is known of other murderers. However, when they looked at those convicted murderers who had killed children only, a different pattern emerged.

Here is what they report on those murderers who killed only children:

The murders are less likely to be premeditated and the murderer is less likely to have traits associated with premeditation (e.g., a diagnosis of antisocial personality disorder and/or substance abuse).

Child murderers were more likely to kill with their hands—as by drowning or beating.

Child murderers were more likely to score lower on measures of language and verbal memory (which the researchers link to poor conflict mediation skills).

The researchers suggest that, since those who kill children only, seem to have deficits (intellectual and interpersonal)—it may be useful to identify them and offer training in problem solving and communication skills. They suggest it may take more organization than the “child only” murderers have to kill multiple victims who are both adults and children.

From a litigation advocacy perspective, the horror related to a murder of this sort makes it difficult for jurors to consider mitigating circumstances. If these researchers are accurate, these are murderers who used their hands to kill innocent children—very personal and inescapably deliberate— and the act will likely be seen as heinous and unforgivable. Those who kill or abuse children are not viewed positively in the prison environment and there is no reason to believe jurors are going to view them more positively either. Jurors will likely be disgusted by the defendant’s behavior but may also respond well to the idea of the defendant receiving rehabilitative services (such as problem-solving and communication training, anger management, and more) so that there is less likelihood of a similar situation arising in the future. This sort of research can potentially explain why something horrible happened and offer jurors information on rehabilitation strategies that will make history less likely to repeat itself.

Azores-Gococo, N., Brook, M., Teralandur, S., & Hanlon, R. (2017). Killing A Child. Criminal Justice and Behavior. DOI: 10.1177/0093854817699437

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Admissibility of brain scans in criminal trials

Wednesday, October 1, 2014
posted by Rita Handrich

brain normal or murdererIt’s been a while since we’ve done an update on neurolaw issues and we think you’ll want to read the entire article upon which this post is based. The article is published in Court Review: Journal of the American Judges Association (which is probably a journal you would benefit from perusing regularly). The article (authored by a psychiatry professor with both MD and JD degrees) offers a review of past courtroom use of the Positive Emission Tomography (commonly referred to as a PET scan) and their potential admissibility for criminal trials. This is obviously a very contentious topic but one that is essential for trial advocates to monitor.  Here are just a few of the thoughts on (past and future) admissibility of the PET Scan that Dr. Rushing offers to the judges for whom the journal is written.

Pretrial Competency Hearings:

If during pretrial examination, a defendant is found incompetent to stand trial, the examiner offers a diagnosis and a prognosis for when (and how) competency can be restored. If the examiner believes competency cannot be restored, “a PET scan can help illustrate the brain-based abnormality that the examiner detected”.

Guilt Phase of Criminal Trials:

During this phase of a criminal trial the PET can “elucidate damage to areas of the brain that are involved in cognitive functions such as judgment and impulse control”. The author comments that prosecutors may challenge the defense expert’s ability to establish a causal link between the violence and the brain damage (and those challenges have often been successful in excluding PET evidence). However, she says, “PETs colorful imagery of brain damage can be useful during trial or in plea bargaining discussions”.

Penalty Phase of Criminal Trials:

The author comments brain-based deficits are a mitigating factor in cases of both capital and non-capital defendants. She cites 2004 case law mandating the consideration of cognitive and/or neuropsychological limitations even when those limitations have no direct link with homicidal behavior. Thus, she recommends the use of PET scans as mitigating evidence during the sentencing phase of a capital murder trial. This evidence could help a jury understand the limitations of the defendant and thus, they may impose a lesser sentence.

Ineffective Assistance of Counsel Claims for Failure to Explore Brain-Based Abnormalities:

Failure to present evidence on brain damage has been a “factor in overturning death sentences in ineffective-assistance-of-counsel cases”.

Finally, the author opines that the rules of evidence offer clear guidelines regarding “when and for what purposes” evidence such as PET scans can be introduced. She identifies a list of questions for judges to considering at various stages of trial.

Whether you think, as we do, that the colorful PET scans are not yet ready for prime time use in courtrooms around the country or not–when an article is published in a journal directed at judges–it’s probably a good idea to have a look!

Rushing, SE (2014). The admissibility of brain scans in criminal trials: The case of positron emission tomography. Court Review, 50 (2)

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psychopath fmri 2013Recently, we wrote about how risk assessment measures do not work on the psychopath. So it seems only fitting we summarize a new article that explains psychopathic behavior using fMRI scans that purport to show how the defendant is not in control of his behavior because “his brain made him do it”. This is an article on whether we should allow the death penalty to be applied to the psychopath. While they don’t say that the convicted psychopath should not go to prison, there are some, according to this writer, saying “a psychopath’s personality neither allows him to care about others nor have empathy for his victims; therefore, juries should not punish a psychopath by imposing the death penalty”.

If you are not familiar with the literature on psychopathy, this article offers a good (and a little scary) summary of psychopathy and the behaviors exhibited by the psychopath. This is not a minimization of the failings of the psychopath–it is rather a summary of the literature on both criminal psychopaths and what the author calls “successful psychopaths” who live among us: “Some psychopaths function reasonably well–as lawyers, doctors, psychiatrists, academics, mercenaries, police officers, cult leaders, military personnel, businesspeople, writers, artists, entertainers….”.

Having made us question nearly everyone around us, the author then describes the various functional brain deficiencies seen in the psychopath (e.g., impaired impulse control, decision-making, and planning; lack of empathy and inability to take other’s perspectives; impaired emotional processing and lack of fear conditioning; among others). She also describes the structural brain abnormalities often present–which leads to the conclusion reached by a current popular singer, psychopaths are “born this way.” There is much disagreement in the research on structural abnormalities in the brain, however, and not everyone with the structural abnormalities in their own brain, is a psychopath. There is apparently a very complex relationship between the brain structure and psychopathic behaviors.

Neuroimaging techniques have been in use for some time now in research on the brains of psychopaths. The author describes the work of Dr. Kent Kiehl (perhaps best known among those working in this area) with fMRIs and the brains of psychopaths, as well as a few lesser-known researchers. fMRIs themselves have been at the core of controversial “his brain made him do it” defenses. The danger, say critics, is that participants view the lovely and brightly colored images and believe the colors really do represent the emotions and thoughts in the brain of the person being scanned. Most neuroscientists say the fMRI is really not ready for courtroom use (and most judges agree). The challenge, says this author, is proving “brain abnormalities identified by the scan actually correlate with psychopathic traits and behavior”. The question remains, do the brain abnormalities cause psychopathy or does psychopathy cause the brain abnormalities detected by the scans? The well-known “dead salmon fMRI test subject” study is discussed as a means of “exposing some of the problems associated with fMRI and brain disorders such as psychopathy….the data, while certainly not useless, is also fallible and tricky”.

The author then returns to Dr. Kiehl who says, “the legal system should treat psychopaths ‘like people with very low IQs who are not fully responsible for their actions’ because psychopaths have low emotional IQs”. Others, many jurors included, see the behavior of psychopaths as chilling and the author believes that “convincing a jury that a defendant’s psychopathy is a mitigating factor might prove difficult”. Multiple studies, according to the author, have shown that mock jurors view the psychopath more negatively than nonpsychopathic criminals and punish them more severely.

In conclusion, the author acknowledges “the deck is largely stacked against attorneys representing psychopathic offenders at death penalty sentencing hearings”. Still, she says, “the positive impact that a neuroscientist’s testimony coupled with a colorful fMRI scan might have on a death penalty jury is a defense strategy worth pursuing”. She also recommends that prosecutors prepare for a detailed cross-exam of this testimony with an eye to discrediting it, and that judges ensure jurors are not confused or misled by the fMRI images.

Overall, the article is a good overview of the literature–it doesn’t cover everything but it certainly hits the highlights, demonstrates the frightening behavior of the psychopath, and raises the question of whether we should apply the death penalty sentence to someone whose brain appears to be abnormal, and whose criminal behavior may be related to that abnormality. It’s a good question. Not as emotionally compelling as the fear and terror often elicited by hearing the specifics of a psychopath’s crime, but certainly a good question.

Phillips, KD (2013). Empathy for psychopaths: Using fMRI brain scans to please for leniency in death penalty cases. Law and Psychology Review.

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Victor-Cruz-salsa-dance-300x260Do we think a football player should be punished for performing a celebration dance? It depends on his race. Even non-football fans have seen the celebration dances done by athletes following touchdowns. If the football player is Black, that arrogance should be punished. If White, it may still be arrogance, but that’s okay. Because they are White.

Wow. Researchers from Northwestern University wondered if Black football players would be seen more negatively (they call it “punished”) for celebration dances following touchdowns. There is research saying that members of high-status groups can behave arrogantly without penalty but that low-status group members cannot. The researchers conducted three different experiments:

The first experiment sampled 74 part-time MBA students (29 female, 45 male) who were all US born, “non-Black” and knowledgeable about American football. They read a description of Black or White football players who either celebrated with a “signature dance” following a successful touchdown or did not celebrate. They were then asked if the athlete should get a salary increase for the successful play.

Black football players who danced were punished financially more than Black football players who didn’t dance (and were therefore seen as more humble). White football players were not penalized similarly–that is, there was no difference in the recommended financial award for the arrogant versus the more humble White football player.

Study 2 sampled 54 non-Black males who could report the length of a football field. This was an age (19 years old to 75 years old) and income diverse (average income slightly below $73K/year) sample. The participants reviewed the same story as those in Study 1 had reviewed and were then asked this question: “If the average wide receiver in the NFL makes around $1M, how much do you think Malik Johnson (or Jake Biermann if the player was reported to be White) should make?”

The results were similar to Study 1 with Black football players celebrating being financially punished while White football players were not.

For Study 3 (now satisfied that Black football players were going to be punished for their arrogance) the researchers wanted to see why and when Black football players would be penalized. Again, 105 White participants able to report the length of a football field were gathered from an online sample. It was again a diverse sample: age ranged from 17 to 68; household income was on average $44K; and women (67 women, 38 men) were included in this sample. This time the participants read similar vignettes to the first two studies with some modifications:  the football players in the vignettes were all Black and either celebrated against a White player, celebrated against a player who race was not specified, did not celebrate at all, and in a “humble” condition, the player simply immediately surrendered the football to a referee as prescribed by the official playbook.

Black players in the celebration against a White opponent condition were rewarded significantly less than the Black player in the no-celebration condition or the humble condition. Similarly, the Black player in the celebration condition not specifying the race of the opponent was also rewarded significantly less than those who did not celebrate and “marginally less” than the Black players in the humble condition.

When the Black football players celebrated, they were penalized more than those who did not celebrate/were humble.

The researchers call this effect the “hubris effect” and refer to the “historical” notion of the “uppity Black” who needed to be taken down a peg or two. This research shows what they describe as “robust evidence” for this sort of hubris penalty against Black athletes but no similar effect for White athletes. In other words, we think it’s okay for White athletes to be arrogant, but Black athletes should know their place.

They cite other disturbing and recent research finding similar patterns:

From a 2010 study: Blacks are penalized for over-performance academically and downplaying achievement or feigning incompetence helps to avoid backlash.

From a 2009 study: Black CEOs benefitted from features that made them seem less competent than “ordinary Blacks”. The assumption here was that too much competence could be threatening to Whites.

It’s a sad and frustrating window into the state of race relations/perceptions in the current day. From a litigation advocacy standpoint, this has multiple implications. [Please understand that we are no more enthusiastic over the following recommendations than we are with the bias that spawned them. We’re taking life as it comes here, and trying to optimize a bad situation.]

Prepare your witnesses and parties with awareness of this dynamic and the expectation that Blacks must be humble.

If your Black client, party, or witness is of higher education, SES, attractiveness, et cetera–pay special attention to evoking juror awareness of “universal values” your client shares with the jurors so the jurors see your Black client as more like them than not like them. The goal with this strategy is to decrease the likelihood of your White jurors being threatened by a high achieving Black party or witness). It’s a case of being more ‘humble’ than should be appropriate. It’s wrong, but it helps.

Consider mitigating the tendency to lower awards to Black plaintiffs or to penalize Black defendants too harshly by using one of our favorite litigation advocacy techniques.

Hall, E., & Livingston, R. (2012). The hubris penalty: Biased responses to “Celebration” displays of black football players Journal of Experimental Social Psychology, 48 (4), 899-904 DOI: 10.1016/j.jesp.2012.02.004

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macbeth joystickThe cannibal cop case is now in full swing and the testimony gets more grisly and nasty every day. From the “cannibal cop’s” wife’s testimony to fantasies of barbecuing a female friend, to the idea that “white girls seem the most appetizing”, the case is shocking, disturbing, and, to most of us, disgusting.

We wrote about this case when we first heard of it, and then again when the supplemental juror questionnaire came out. Now some new research got us thinking about the jurors hearing all the grisly and disturbing testimony day after day after day. There’s been a lot of writing about jurors being traumatized by hearing disturbing evidence in murder, kidnapping, rape, child sex abuse, and other violent criminal trials. We do not wish to minimize the distress that trial images, verbal testimony, and the shock of brutal acts can cause for jurors hearing evidence. But this research has possible utility in mitigating the impact of the evidence.

It’s something repeatedly found in the “disgust research” which we’ve written about before. This research though seems to apply to the sort of gruesome evidence being presented in the “cannibal cop” case. In the research, students were asked to play one of two different violent video games (one featuring violence against people and the other featuring violence against objects) and then asked to choose 4 out of 10 gift products (half of which were hygiene products). The research participants included experienced gamers and inexperienced gamers. And here is what the researchers found:

When the games included violence against people (rather than violence against things), inexperienced gamers were more distressed and they chose more hygiene products from the gift products available to them. Experienced gamers didn’t report distress regardless of which game they played.

In essence, the experienced gamers seemed to have much more immunity from the impact of violent behavior against humans than did the inexperienced gamers. The inexperienced gamers wanted to “cleanse themselves” and thus chose products [such as deodorant and body wash] that would assist them in so doing.

In the “cannibal cop” trial, jurors are being exposed to fantasies of the most violent and disgusting nature and the defendant is a NY police officer. We assume (and have to hope) that most of the jurors on the “cannibal cop” case are “inexperienced” in hearing the sorts of things they are most certainly now hearing. An interesting follow-up research series might look at the adaptive strategies that people undertake over time, when exposed to disturbing material. Would these “inexperienced” people continue to display trauma by opting for hygiene products, or would the repeated exposure cause them to become desensitized over time? What is the most effective balance of stress and comfort for jurors who are serving on cases like this? Does chronic shock (also known as ‘vicarious traumatization’) serve the prosecution or the defense? Would opportunities to ‘cleanse’ result in the “inexperienced” jurors remaining sensitive to the trauma, or help them seal it over?

It’s an intriguing idea and certainly one that wouldn’t hurt at all to test out. Can offering jurors convenient ways to wash and cleanse their hands keep trauma from gaining a permanent foothold? Is what soothes the jurors also good for your case? Big questions.

Gollwitzer, M., & Melzer, A. (2012). Macbeth and the Joystick: Evidence for moral cleansing after playing a violent video game Journal of Experimental Social Psychology, 48 (6), 1356-1360 DOI: 10.1016/j.jesp.2012.07.001

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