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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.



Dexter murdererNo, this isn’t one of those conversation starters for dinner table conversation although you can feel free to use it as such. Actually, it would likely go better with after dinner drinks. It’s a bit too daunting for dinner.

It’s long been advised (at least in forensic psychology circles) that when it comes to staying alive, you really want to steer clear of any psychopath with a low IQ who is abusing drugs and/or alcohol. It just isn’t going to end well. That was more common wisdom though (provided to those who wondered what the best policy was when dealing with unintelligent, drunk psychopaths) and now (ta-da!) we have actual research to prove it.

Researchers at Northwestern, DePaul and the University of Illinois at Chicago examined 77 inmates (90% male, 68% African-American, average age of 32 with a range of 16 to 67 years, and an average of 10.5 years of education) who were incarcerated in Illinois and Missouri. They sorted these inmates (who had either been charged with or convicted of the murders of 137 different people) into two groups: the affective/impulsive group and the premeditated/predatory group using Meloy’s forensic criteria (included in the article’s Appendix) related to psychopathy. The authors further define the group assignment as follows:

Predatory/Instrumental violence is “a planned, purposeful, and primarily cognitively derived act, whereas Affective/Impulsive violence refers to reactive, immediate, and primarily emotionally derived acts”.

Every inmate tested had been referred by their attorney or by the court for neuropsychological evaluation related to fitness to stand trial, criminal responsibility, mental retardation or neuropsychological abnormalities. The referrals were made across all phases of trial and all evaluations were completed between 2000 and 2007. Only one inmate was eventually found to be NGRI (not guilty by reason of insanity) by the court. The researchers were interested in examining the neuropsychological and intelligence differences, if any, between these two groups of both accused and convicted Defendants. All inmates participated in a clinical interview and completed a neuropsychological test battery. (For those interested in such things, the test battery included the Wechsler IQ test [WAIS-III]; subtests of the Wechsler Memory Scale, Third Edition; California Verbal Learning Test, Second Edition; Wisconsin Card Sorting Test, Conners’ Continuous Performance Task II, the Trail Making Test, the Stroop Color and Word Test, and the Controlled Oral Word Association Test. In short, they took a lot of tests.)

Here is what the researchers found upon comparing the two groups:

Affective/Impulsive Defendants were younger, less educated, more likely to be African-American, more likely to have a history of substance abuse (93% to 76%) or developmental disorders and less likely to have a history of psychiatric diagnosis or personality disorder than were those Defendants in the Predatory/Instrumental group.

Affective/Impulsive Defendants had lower overall IQ scores (79, in the Borderline Range) while Predatory/Instrumental Defendants scored in the Average Range (93).

Affective/Impulsive Defendants had lower overall memory retention, lower scores on attention and task completion, and poorer face recognition.

Affective/Impulsive Defendants had lower problem-solving efficiency and cognitive flexibility.

Predatory/Instrumental Defendants were more likely to have both Axis I (major mental disorders such as Schizophrenia or Bipolar Disorder) and Axis II disorders (personality disorders such as Antisocial, Narcissistic, Histrionic, Borderline, and so on).

The researchers say what all this means is that Affective/Impulsive Defendants have “significant neuropsychological and intellectual deficits” while Predatory/Instrumental Defendants are “largely intact across neurocognitive domains”. In English, that means the Affective/Impulsive Defendants had multiple mental and developmental problems while the Predatory/Instrumental Defendants were “pretty much okay” when their intellectual and neurocognitive functions were assessed–but, of course, very much not okay on measures of what constitutes empathy for others.

So, planful murderers are most likely the predatory type, and the emotional/low intellect murderers tend to be the impulsive types. The former is likely to be smarter, and a bit less likely to be caught (or at least less quickly caught). The emotional/impulsive murderer is likely to commit the crime with less thought to the consequences, and without a plan for succeeding at it.

Our sage counsel is for you to stay away from both groups and away from psychopaths in general.

Hanlon, RE, Brook, M., Stratton, J., Jensen, M., & Rubin, LH (2013). Neuropsychological and intellectual differences between types of Defendants: Affective/Impulsive versus Predatory/Instrumental (Premeditated) Homicide. Criminal Justice and Behavior, 40



Shoot first and draw the target second

Monday, February 4, 2013
posted by Douglas Keene

sharpshooter fallacyFact is often stranger than fiction and living here in Texas–we often hear tall tales. Some of them are true while most are pulled out to illustrate a point. Some are colorful and amusing while others take on a life of their own as representative of logical fallacies. Like the Texas sharpshooter tale where you shoot first and later draw the bullseye around the holes left by your bullets. You appear to be a sharpshooter but anyone drawing that conclusion would be sadly mistaken.

The Texas Sharpshooter Fallacy is a variation of what we joked about when I was in graduate school where we referred to this as “drawing the curve before you plot the data”. This logical fallacy is really about making assumptions when you only have partial data or circumstantial evidence. And if you’ve ever watched mock jurors or real jurors–you know this is a common occurrence as trial narratives are presented. If there’s a hole in the story–someone is bound to jump through it.

It’s a funny thing. After almost two decades of doing trial consulting, we know for sure that you can’t always predict how a group of twelve is going to respond to a story. And even when you predict with general accuracy, you don’t always know ‘why’ they would ultimately come to the conclusion they reach.  For example, it can be startling how quickly leaps can be made to conspiracy and how persuasive conspiracy theories can be given the right group of jurors.

Whether it’s the Texas sharpshooter fallacy or some other logical fallacy your case narrative elicits–you want to figure out how to plug those gaps in your story and how to identify what sort of person is going to identify a conspiracy where there is none and confuse your other decision makers during deliberation. That conspiracy-prone [“I see a pattern here!”] potential juror is a terrific target for your peremptory strikes. You could even think of pretrial research as shooting bullet holes and then drawing your targets on the jurors who shot them.


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Do not pursue a life of crime. And that advice goes beyond the idea you would be too easy to smell. And way beyond the tired recommendation of heavy-duty, clinical strength antiperspirant (although far be it from us to dissuade you from smelling nice). This is instead, as is our tendency here, a recommendation based on research.

Researchers from the Hebrew University of Jerusalem found a way to lift high-quality fingerprints from soaking wet paper. As it turns out, the amino acids in some human sweat can degrade fingerprint quality. In the past, therefore, the sweaty criminal may have been tough to identify. But progress is being made!

In this study, the scientists fixed this problem by making the gold nanoparticles stick to the paper upon which the fingerprint is located, instead of to the print itself. This method, detailed in the November issue of the German journal Angewandte Chemie [Applied Chemistry], results in a negative image of the fingerprint, with the particles sticking to the divots between the fatty ridges formed by greasy fingers. Since fat is impermeable, the ridges stay in place even when faced with massive amounts of water. You can read a detailed description of why this is so tough to do over at the Salamander Hours blog.

It would seem that sweaty criminals have a short time frame for choosing new career paths. So why is this important for litigation advocates to know?

Because it represents a significant advance in finger-printing technology and fingerprint identification.

It is a sign of moving closer to catching criminals whose amino acids may have unwittingly helped them to escape detection up until now.

Plus–there are times when it’s good to know something a little amusing and yet ostensibly relevant for litigation advocacy.

Jaber N, Lesniewski A, Gabizon H, Shenawi S, Mandler D, & Almog J (2012). Visualization of latent fingermarks by nanotechnology: reversed development on paper-a remedy to the variation in sweat composition. Angewandte Chemie (International ed. in English), 51 (49), 12224-7 PMID: 23125068

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The work of the Innocence Project gets a lot of attention. Justifiably so. But did you know that DNA evidence plays no role whatsoever in 90-95% of convictions and therefore, cannot be used to pursue future innocence claims? Pacific Standard has an informative review of non-DNA exonerations that is worth a read.

They talk about EXI–the Exoneration Initiative, a project that takes on cases without DNA evidence in an effort “to exonerate the actually innocent”. Prosecutors work hard to maintain and protect the conviction. As difficult as exonerations are when DNA evidence is available, it is far more difficult without it. Exoneration efforts consume thousands of volunteer work hours and can take years to resolve.

Their cases sometimes hinge on false confessions experts who do are expensive, and who are often not allowed to testify in court. Other times their cases revolve around challenging eyewitness or informant testimony, forensic evidence, the conduct and actions of the arresting or investigating police officers and prosecutors or defense attorneys. As prosecutors and criminal defense attorneys know, once a jury renders a guilty verdict, the accused is now the convict, and all assumptions of innocence cease. The bar is set very high for reversal and exoneration, and achieving this result is exceptionally difficult.

We’ve written about false confessions before and have recommended a non-fiction account by Ray Bonner on wrongful conviction as well as a fictional account from John Grisham. There is nothing entertaining however, in the realities of being imprisoned for a crime you did not commit.

As we’ve listened to mock jurors struggling to comprehend false confessions and why anyone could possibly confess to a heinous crime they did not commit–the hopelessness that is the life of the wrongfully convicted becomes palpable. Even when jurors are told there is no dispute about the person’s innocence–it is hard for them to accept. “Then why was there a confession?” They are appalled at such an extreme miscarriage of justice. But many of them are just as appalled that anyone would falsely confess and thus, they see the false confessor as having significant responsibility for their subsequent conviction and incarceration. Among some, it is easier to blame the victim of false imprisonment than to imagine that the system could go so horribly wrong.

Recently, we listened to mock jurors struggle with a case like this and were surprised to hear reality TV actually educating the mock jurors about the pressures of the interrogation room. Two of the mock jurors watched a show called The First 48 on A&E Television. Evidently, they watched it a lot, and boy did they like it! They were able to describe the “real-life” pressures in the interrogation room and make the idea of a false confession make more sense to the other mock jurors. As one skeptic said, “Well, obviously I know it can happen because I’ve read about DNA exonerations–but it still makes no sense to me that anyone would confess to murder when they didn’t do it. What was wrong with him?” There was no sympathy for the cascade of errors often seen in wrongful conviction cases (e.g., evidence errors, witness errors, police errors, and more) but there was also little sympathy for the man who’d lost his entire young adulthood, both parents and a sibling to his (wrongful) time in prison. “If he had just stood his ground and not confessed, we wouldn’t be here now!”

It’s a nightmare you cannot escape. Kafka comes to mind… Day after day after day. Having advocates like the Innocence Project or the Exoneration Initiative after such a miscarriage of justice is truly a ray of sunlight in a very dark (and typically very, very long) time. Pursuing the evidence needed to free the wrongfully convicted is often a thankless job until an exoneration is granted. That happens more often for the Innocence Project than it does for the Exoneration Initiative–just because of the nature of their focus. We want to thank both of them. They keep showing up after everyone else has gone home.


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