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Column   |    
Law & Psychiatry: Through a Glass Darkly: Functional Neuroimaging Evidence Enters the Courtroom
Paul S. Appelbaum, M.D.
Psychiatric Services 2009; doi: 10.1176/appi.ps.60.1.21
View Author and Article Information

Dr. Appelbaum, who is editor of this column, is the Elizabeth K. Dollard Professor of Psychiatry, Medicine and Law, Department of Psychiatry, Columbia University. Send correspondence to him at New York State Psychiatric Institute, 1051 Riverside Dr., Unit 122, New York, NY 10032 (email: psa21@columbia.edu).

Abstract

This column discusses problems with use of evidence based on functional brain scans. It describes a 2007 case in which evidence from positron emission tomography of the defendant's brain was used in an attempt to show that he was unable to have planned the sexual assault, which he did not contest committing, and so could not form an intent to commit the crime. Among the issues evident in such cases are the assumption that complex functions are localized to single areas of the brain and the large discrepancy between inferences that can be drawn from such evidence and legal standards that must be met in court. (Psychiatric Services 60: 21–23, 2009)

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On its surface, the attack was planned with devilish precision. Dressed as a firefighter on Halloween, former fashion writer Peter Braunstein set off a smoke bomb in the lobby of an erstwhile coworker's New York apartment building and then knocked on her door, claiming that he had come to assess the damage to her apartment. When she let him in, Braunstein used chloroform to knock her out, stripped her, tied her to her bed, forced a pair of fashionable high-heeled shoes onto her feet, and sexually assaulted her for the next 13 hours. His six-week flight across the country was prime tabloid newspaper and television fodder, made all the more dramatic when Braunstein stabbed himself in the neck on being captured by police in Memphis (1).

After Braunstein was returned to New York for trial, his defense never contested that he had committed the assault. Instead, defense experts painted a picture of a man whose downward drift into what was characterized as paranoid schizophrenia had aborted a successful career as a writer for Women's Wear Daily and other publications (2). Rather than the expected insanity defense, however, Braunstein's not-guilty plea was based on the contention that he was unable to form an intent to commit the crimes with which he was charged. The definitions of most crimes require that a defendant be found both to have committed the act in question and to have done so with intent—denoted by the Latin term mens rea, or guilty mind—to commit that specific act. In contrast, Braunstein's attorney characterized his behavior as having been committed "in a vague, improvisational haze, a kind of fantasy, never knowing what he was going to do from one moment to the next" (3).

Although not every state allows mental health experts to testify with regard to a defendant's ability to form the required intent to commit a crime (4), New York is one of the jurisdictions that does. Braunstein's claim, moreover, was based on more than just the data gathered in clinical interviews. Monte Buchsbaum, a psychiatrist who specializes in the use of positron emission tomography (PET) scans, was called to the stand to introduce evidence that Braunstein had decreased function in his frontal lobes, which he described as the part of the brain that controls initiation and cessation of behavior, planning, and moral judgment. "If I saw this scan without knowing anything else," he testified, "I would say this person has changes in personality, will have difficulty planning, making executive judgments and thinking ahead." Asked under cross-examination whether the scan indicated that Braunstein was "completely unable to plan," Buchsbaum responded, "The answer to your question is yes" (5).

The Braunstein case is illustrative of the problems that exist with the use of evidence that is based on functional scans of the brain.

The use of a PET scan to support Braunstein's claim that he could not form an intent to commit the crimes with which he was charged is one of the more dramatic examples of the entry of functional brain scanning into the courts. But it was by no means the first time brain scans have played a prominent role at trial. Many Americans first became aware of structural brain scanning technology when a defense expert introduced computerized axial tomography (CAT) scans of John W. Hinckley's brain to support the contention that Hinckley—being tried for the attempted assassination of President Ronald Reagan—suffered from schizophrenia (6). The development of functional scanning, including PET, single-photon emission computed tomography (SPECT), and most recently, functional magnetic resonance imaging (fMRI), have multiplied the forensic uses of brain scanning technology.

Underlying all types of functional scanning evidence is the assumption that disruptions in the function of discrete parts of the brain can lead to alterations in particular aspects of cognition and behavior. The classic 19th century case of Phineas Gage, the railroad worker who suffered a dramatic change in his personality after an iron tamping bar was shot through the front of his brain, is often used to illustrate the phenomenon (7). Gage, a hard-working family man, became an impulsive, mildly antisocial ne'er-do-well in the wake of his accident, a change attributed to damage to his prefrontal cortex, often considered the brain's locus for reasoning, planning, impulse control, and moral judgment. Other brain areas linked to legally relevant functions include the amygdala (involved in control of emotions, including anger) and the anterior cingulate cortex (which plays a role in the generation of empathy) (8). Scanning techniques are based on the presumption that changes in blood flow—the parameter actually measured by the technology—correspond to changes in neural activity.

Functional neuroimaging evidence has been used in criminal cases in support of the insanity defense (9), claims of incompetence to stand trial (10), and pleas for mitigation in sentencing—a use pioneered by Dr. Buchsbaum (11). Civil cases in which functional imaging has been introduced typically involve claims of brain injury as a result of defendants' activities (12) but include more esoteric uses as well, such as to establish the effect of violent video games on children (13). A 2006 study found 133 reported opinions involving PET or SPECT evidence, in 85 of which the evidence was ruled admissible (12). Because only a fraction of legal cases yield written opinions, and given the greater ease and finer resolution of fMRI imaging compared with PET and SPECT, the number of cases involving functional neuroimaging by now is undoubtedly at least several times higher. But the courts' receptivity to functional imaging evidence has not gone unchallenged.

From a scientific perspective, there are a number of conceptual issues in relating imaging findings to particular cognitive functions (for example, to impulse control or planning), including the assumption that complex functions are localized to single areas of the brain (14). Not only do current models suggest that higher-level brain functions typically are dependent on interactions among a distributed web of neural centers, but the ability of other brain regions to take over from injured areas suggests limits to the conclusions that can be drawn from localized deficits. Moreover, to the extent that data link reduced activity in a particular brain region to a pattern of impaired cognition or behavior, the findings are almost always based on correlations between aggregate data and outcome measures, which can obscure the extent of individual differences. Thus a range of functional levels could be compatible with unimpaired cognition and behavior, including some that may be significantly different from the statistical mean (15).

How functional scanning results are presented can also be problematic. Levels of activation are determined by subtracting resting levels of activity from those achieved when the brain is being challenged to perform a particular task. Thus, when a bright patch of color fails to appear in a brain region of interest, the finding does not signify that the region was inactive, only that it was not significantly more active in response to the stimulus than in its absence (12). In theory, a person who is more efficient than the average subject at performing a particular task may show results that falsely suggest a failure to activate the relevant region. And the levels at which a significant difference is identified—perhaps not much above baseline—and the colors used to illustrate it are often selected arbitrarily. Thus dramatic contrasts on a scan can reflect relatively minor differences in actual levels of brain activity.

In the courtroom setting, however, perhaps the most important limitation on the current use of functional imaging evidence is the discrepancy between the inferences that can be drawn and the legal standards to be met. To be found not guilty by reason of insanity, for example, a defendant must demonstrate (in one common formulation) that he "lack[ed] substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law." Although neuroscientists talk in general terms about brain regions associated with moral reasoning and behavioral control, at this point there are no data identifying a given degree of impairment in a particular locus of the brain that corresponds to substantial impairment in either of the capacities at issue. Hence, there is an understandable resistance among legal and neuroscience experts to accepting neuroimaging data as evidence of "aberrations in human thought, will, motivation or propensity for culpable behavior, or to show an incapacity to inhibit … behavior" (16). To behave otherwise, in one commentator's caustic turn of phrase, would be to exhibit symptoms of "brain overclaim syndrome," a condition that threatens to undermine the integrity of the process of determining responsibility for criminal acts (15).

Peter Braunstein's trial on charges of kidnapping, sexual abuse, burglary, robbery, and arson turned out to be a case in point. Deliberating only four hours before finding the defendant guilty on all charges except arson, the jury appeared to accept the conclusion of the prosecutor that "It really was an indefensible defense. All the actions, the record, his writings, his interviews were very clear. All the events leading up to it, the preparation for the crime, the actual execution of the crime, his getaway. It was a really conscious effort on his part to commit this crime" (17). Whatever the PET scans of Braunstein's frontal lobes showed, the jury was unwilling to accept that his deficits rendered him "completely unable to plan," which a finding of lack of intent would have required. The commonsense view that the crime was too intricate to have been carried out by someone incapable of forming a criminal intent won the day.

What is the likely future of neuroimaging evidence in court? As noted, functional scanning already appears to be playing a useful role in demonstrating impairments that result from physical injury, including exposure to toxins. In addition, in some cases where gross lesions are present and a person's behavior showed clear changes after the lesion developed (8), imaging data may be helpful in identifying the cause of the deviant actions, although structural imaging is more likely than functional imaging techniques to be used for this purpose. Moreover, to the extent that convincing data can be generated to demonstrate strong associations between specific deficits on scanning paradigms and relevant mental functions (for example, impulse control), such data could be used to support defendants' claims of absent or diminished responsibility. But without evidence drawn from defendants' own behavior and clinical state, functional scanning data are not likely to stand on their own for such purposes. It remains too early to judge whether neuroimaging evidence will become anything more than "a high-tech crystal ball" (18).

Hartocollis A: Writer sentenced for sexually tormenting former colleague. New York Times, June 19, 2007
 
Hartocollis A: Testimony about delusions with "cosmic proportions." New York Times, May 15, 2007
 
Hartocollis A: Attack not disputed at trial, just intent of the attacker. New York Times, May 23, 2007
 
Appelbaum PS: Insanity, guilty minds, and psychiatric testimony. Psychiatric Services 57:1370–1372, 2006
 
Hartocollis A: In support of sex attacker's insanity plea, a look at his brain. New York Times, May 11, 2007
 
Taylor S: CAT scans said to show shrunken Hinckley brain. New York Times, June 2, 1982
 
Damasio AR: Descartes' Error: Emotion, Reason, and the Human Brain. New York, Harper Perennial, 1995
 
Mobbs D, Lau HC, Jones OD, et al: Law, responsibility and the brain. PLoS Biology 5(4):e103, 2007. doi:10.1371/journal.pbio.00501103
 
People v Weinstein, 591 NYS 2d 715 (Sup Ct 1992)
 
US v Gigante, 982 F Supp 140 (EDNY 1997)
 
Emmons S: Hunting for brain disorders: attorneys turn to UCI scanner as defense tool. Los Angeles Times (Orange County ed), July 14, 1989
 
Feigenson N: Brain imaging and courtroom evidence: on the admissibility and persuasiveness of fMRI. International Journal of Law in Context 2:233–255, 2006
 
Entertainment Software Association v Blagojevich, 404 F Supp 2d 1051 (ND Ill 2005)
 
Uttal WR: The New Phrenology: The Limits of Localizing Cognitive Processes in the Brain. Cambridge, Mass, MIT Press, 2001
 
Morse SJ: Brain overclaim syndrome and criminal responsibility: a diagnostic note. Ohio State Journal of Criminal Law 3:397–412, 2006
 
Koshbin LS, Koshbin S: Imaging the mind, minding the image: an historical introduction to brain imaging and the law. American Journal of Law and Medicine 33:171–192, 2007
 
Hartocollis A: Writer is convicted in sex attack on former colleague. New York Times, May 24, 2007
 
Kulynych J: Psychiatric neuroimaging evidence: a high-tech crystal ball? Stanford Law Review 49:1249–1270, 1997
 
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References

Hartocollis A: Writer sentenced for sexually tormenting former colleague. New York Times, June 19, 2007
 
Hartocollis A: Testimony about delusions with "cosmic proportions." New York Times, May 15, 2007
 
Hartocollis A: Attack not disputed at trial, just intent of the attacker. New York Times, May 23, 2007
 
Appelbaum PS: Insanity, guilty minds, and psychiatric testimony. Psychiatric Services 57:1370–1372, 2006
 
Hartocollis A: In support of sex attacker's insanity plea, a look at his brain. New York Times, May 11, 2007
 
Taylor S: CAT scans said to show shrunken Hinckley brain. New York Times, June 2, 1982
 
Damasio AR: Descartes' Error: Emotion, Reason, and the Human Brain. New York, Harper Perennial, 1995
 
Mobbs D, Lau HC, Jones OD, et al: Law, responsibility and the brain. PLoS Biology 5(4):e103, 2007. doi:10.1371/journal.pbio.00501103
 
People v Weinstein, 591 NYS 2d 715 (Sup Ct 1992)
 
US v Gigante, 982 F Supp 140 (EDNY 1997)
 
Emmons S: Hunting for brain disorders: attorneys turn to UCI scanner as defense tool. Los Angeles Times (Orange County ed), July 14, 1989
 
Feigenson N: Brain imaging and courtroom evidence: on the admissibility and persuasiveness of fMRI. International Journal of Law in Context 2:233–255, 2006
 
Entertainment Software Association v Blagojevich, 404 F Supp 2d 1051 (ND Ill 2005)
 
Uttal WR: The New Phrenology: The Limits of Localizing Cognitive Processes in the Brain. Cambridge, Mass, MIT Press, 2001
 
Morse SJ: Brain overclaim syndrome and criminal responsibility: a diagnostic note. Ohio State Journal of Criminal Law 3:397–412, 2006
 
Koshbin LS, Koshbin S: Imaging the mind, minding the image: an historical introduction to brain imaging and the law. American Journal of Law and Medicine 33:171–192, 2007
 
Hartocollis A: Writer is convicted in sex attack on former colleague. New York Times, May 24, 2007
 
Kulynych J: Psychiatric neuroimaging evidence: a high-tech crystal ball? Stanford Law Review 49:1249–1270, 1997
 
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