Brain Imaging and Mental Health Issues in Criminal Cases. Wm. F. Klumpp, Jr. Assistant Attorney General August 27, 2013

Transcription

1 Brain Imaging and Mental Health Issues in Criminal Cases Wm. F. Klumpp, Jr. Assistant Attorney General August 27, 2013

2 Graham v Florida, 130 S Ct 2011 (2010) 8 th Amendment prohibits life w/o parole on juveniles who didn t commit homicide As petitioner s amici point out, the development s in psychology and brain science continue to show fundamental differences between juvenile and adult minds. For example, parts of the brain

3 involved in behavior control continue to mature through late adolescence. Id. at Miller v Alabama, 132 SCt 2455 (2012) Mandatory sentence of life w/o parole for someone under 18 at time of crime violates the 8 th Amendment Citing the amicus brief of the American Psychological Assoc the court noted

4 that the ever growing body of research and developmental psychology and neuroscience continues to confirm and strengthen the court s conclusions from Roper v Simmons, 125 SCt 1183 (2005) and Graham. It is increasingly clear that adolescent brains are not yet fully matured in regions and systems related to higher order functions such as impulse control, planning ahead and risk avoidance. Miller, 132 SCt at 2464 n5.

5 State v McLaughlin, 725 NW2d 703 (2007) Appellant asked the court to change the standard for insanity based upon the basis of recent brain development research as set forth in the amicus curiae brief of the American Medical Assoc in Roper. The court declined to make an exception to the procedural bar because McLaughlin s claim depends entirely on highly technical facts which were never raised before the district court and because the evidence

6 McLaughlin supplies on appeal in the form of a single amicus brief from an unrelated Supreme Court case is not targeted to the particular concern McLaughlin raises, that is, the implications of recent brain development research for the constitutionality of the M Naughton rule. McLaughlin, 725 NW2d at 713.

7 Entertainment Software Assoc v Hatch, 443 F Supp2d 1065 (D Minn 2006) Statute fining those under 17 who rented or purchased violent video games held violative of 1 st Amendment The state cited studies including fmri studies that showed frontal lobe activation when exposed to media violence. Id. at 1070 n2.

8 US v Semrau, 693 F3d 520 (6 th Cir 2012) Held as a matter of 1 st impression that defense expert s proposed testimony regarding fmri lie detection testing was inadmissible to prove that the defendant was generally truthful when he said he attempted to follow proper billing practices in good faith in his trial for health care fraud. Id. at 516.

9 The brain is the center of the nervous system and exerts centralized control over other organs of the body It operates by generating electrical currents within the brain and by driving a secretion of chemicals called hormones The heart pumps oxygenated blood through the brain Brain imaging detects these electrical & metabolic processes & displays them

10 Parts of the brain: brain stem, cerebellum & cerebrum Brain stems parts help to control the body s autonomic functioning such as heart rate & digestion & help to regulate processing in the cerebrum Cerebellum plays a major role in fine motor control & seems to keep a library of learned motor skills. It also plays a role in motor cognitive functions including working memory, attention & language.

11 Cerebrum (85 % of brain s volume) has 2 hemispheres: left & right. Each hemisphere has 4 lobes: frontal lobe is behind the forehead back parietal lobe is at the top & toward the temporal lobe is just behind & above the ears on the side occipital lobe is at the back

12 Occipital lobe connected vision Parietal lobe connectedto attention & spacial representation Frontal lobe connected to language production & planning Temporal lobe is connected to memory & hearing Left side tends to control language & skilled use of the hands

13 Right side tends to control spacial representation & attention Front side controls action Back side control perception

14 Neurons in the brain pass messages from 1 neuron to another in a complex way that appears to be responsible for conscious & unconscious brain function. Neurons have 3 features: cell body, short extensions called dendrites & longer extensions called axons. Communication between neurons occurs at areas called synapses where the 2 neurons almost meet.

15 At synapses when the axon fires or becomes active, molecules known as neurotransmitters are released. Over 100 neurotransmitters has been ID d. Best known: dopamine, serotonin, glutamate & acetylcholine. The neuron that fires does so by generating an electrical current that flows away from the cell body & down the length of its axon. Look at the brain as a set of interconnected

16 neurons that fire in networks or patterns in response to stimuli. This is not necessarily complete, however. Other factors affect how the brain works including chemical factors. Some of these are hormones that are generated either inside or outside the brain. They can affect how the brain functions as well as how it develops. When the brain is active, you can determine which part of the brain is being activated by

17 discovering the blood flow & oxygen in a specific part of the brain. Generally speaking the body delivers oxygen to brain regions that are working harder. Brain imaging looks at the electrical impulses, blood flow & oxygen in the brain depending on which technology is used. Computer software is used to display this data either in a graph or picture form, sometimes with the use of radiation.

18 Brain Imaging CT (computed tomography) scanning can show various anomalies in the brain by aiming radiation at & passing through the body so that it forms images on photographic film. PET (positron emission tomography) scanning lets researchers learn about how the brain functions as it is doing so by injecting radioactive tracers that move through the blood stream & accumulate in

19 different locations & concentrations in the brain over time as different parts of the brain increase & decrease activity associated with brain function. PET scans are useful in detecting some kinds of brain damage such as that occurs with a stroke or Alzheimer s. SPECT (single photon emission computed tomography) scans produce a 3- dimensional model of the brain & display images of any cross section through it by using tracers that are more stable, more

20 accessible & much cheaper than the positron emitting tracers needed for PET scans. SPECT tracers can be used to measure brain metabolism or to attach to specific molecular receptors in the brain. EEG (electroencephalography) & MEG (magnetoencephalography) record electromagnetic fluctuations in various parts of the brain as the brain is functioning using non-invasive sensors applied to the scalp. EEG signals can be analyzed in relation to stimuli or

21 responses to obtain event related potentials. EEG was used before brain imagining was developed to make inferences about brain processes underlying perceptual, cognitive & motor processes. fmri (functional magnetic resonance imaging) uses regular MRI technology to detect changes in hemodynamic (blood movement) properties of the brain occurring when the subject is engaged in very specific mental tasks. fmri shows

22 what regions of the brain are more or less active in response to the performance of particular tasks or the presentation of particular stimuli. fmri measures blood oxygenation levels as those levels change across time. It doesn t measure brain activity (the firing of neurons) directly but looks at how blood flow changes in response to brain activity & uses those changes through the BOLD (blood-oxygenlevel dependent) response to allow the researcher to infer patterns of brain activity. Changes in demand for oxygen

23 are considered to be reliable proxies for inferring the fluctuating activity of the underlying neural tissue. fmri & EEG seem to be the techniques that are most likely the lead to efforts to introduce neuroscience based evidence in court. Uses: competency to stand trial or make wills, criminal responsibility (insanity) at the time of the crime, mental deficiency as part of sentencing mitigation, psychopathy as

24 part of sentencing aggravation, lie detection, the presence or absence of pain, & brain maturity in juvenile certification or hearings related to competency to understand Miranda warnings. John Hinckley s defense attorneys used a CAT scan to show he suffered from organic brain damage in the form of brain shrinkage during his trial for the attempted assassination of President Reagan. He was found not guilty by reason of insanity.

25 ABA Criminal Justice Mental Health Standards A task force of law professors, prosecutors, defense attorneys, psychologists & psychiatrists is revising the standards to present to the ABA for approval. Assistant Attorney General Bill Klumpp & 10 th District Public Defender Virginia Murphrey are on the task force.