clinical neuropsychology in the criminal forensic setting · neuropsychology. there are excellent...

P1: FNN/FGL P2: FNN

Aspen Pub./JHTR AS028-04 March 7, 2000 14:16 Char Count= 0

Clinical Neuropsychology in theCriminal Forensic Setting

This article reviews the application of clinical neuropsychology to criminal court proceedings, a complex,underserved, yet growing area of neuropsychological practice. The authors write from the perspectivethat the audience is primarily neurorehabilitation clinicians with limited experience in criminal matters.Discussions on the theoretical differences between clinical and forensic work, the forensic evaluationprocess with conceptual model, historical and current perspectives on criminal competencies and re-sponsibility, prediction of dangerousness, and professional and ethical issues often encountered in crim-inal neuropsychology are provided. Key words: competency, criminal, dangerousness, forensic, sanity,traumatic brain injury

Robert L. Denney, PsyD, ABPP/ABFPForensic NeuropsychologistUS Medical Center for Federal PrisonersAdjunct FacultyForest Institute of Professional PsychologySpringfield, Missouri

Timothy F. Wynkoop, PhDConsulting NeuropsychologistCourt Diagnostic and Treatment CenterClinical Affiliate FacultyBowling Green State UniversityToledo, Ohio

Opinions expressed in this article are those of the au-thors and do not necessarily represent the opinions ofthe Federal Bureau of Prisons or Department of Justice.

CLINICAL NEUROPSYCHOLOGISTS prac-ticing in the forensic arena have histor-

ically focused on civil litigation when headtrauma is at issue. Consequently, not much hasbeen written concerning the application ofneuropsychology to criminal proceedings.1–3

This trend is shifting, however, as more neuro-psychologists find themselves providing ser-vices to the criminal courts.4 Indeed, there is ahigher rate of closed head injury (CHI) amongcriminal populations,5 and in one survey, ap-proximately 46%–50% of forensic psycholo-gists said that they used neuropsychologi-cal assessment instruments in their pretrialevaluations.6 These facts lead the authorsto conclude that there is a need for clini-cal neuropsychological expertise in criminalproceedings.

Criminal courts, and probation and paroleagencies, are becoming more aware of theunique contribution that neuropsychological

Address correspondence to Robert L. Denney, PsyD,ABPP, US Medical Center for Federal Prisoners, 1900 W.Sunshine, Springfield, MO 65807, email [email protected].

J Head Trauma Rehabil 2000;15(2):804–828c© 2000 Aspen Publishers, Inc.

804

P1: FNN/FGL P2: FNN


Criminal Forensic Setting 805

assessment can make over more general clin-ical mental health evaluations, particularlywhen issues of central nervous system (CNS)pathology arise. Neuropsychologists have theability to contribute their understanding ofneuroanatomy, neuropathology, and objectivefunctional assessment to address the morespecific questions of the court.2,3,7,8 One areato which neuropsychology has made substan-tial contributions in the criminal courts hasbeen in the detection of feigned or exagger-ated cognitive deficits9–11; in the process, thiscontribution has helped to clarify the courts’,and practitioners’, understanding of how cog-nitive difficulties should present given partic-ular injuries or illnesses.12,13

When deprivation of liberty is at stake, asis typically the case in criminal proceedings,due process requires that the defendant beable to understand the process to a reason-able degree and be able to assist counsel in hisor her own defense, behaviors that stronglyimply cognitive capacities.14 With few ex-ceptions, cognition forms the basis of mostmental health criminal standards. Most com-monly, questions include a defendant’s com-petency to participate in legal proceedings,as well as his or her competency to waivethe right to an attorney, a trial (ie, pleadguilty), or an appeal.15,16 Courts are even be-ginning to ask specific questions of evalua-tors regarding the effect of amnesia and thepossibility of feigning memory loss or gen-eral intellectual compromise.9 The issue oflegal sanity, or criminal responsibility, arisesas attorneys, judges, and juries grapple withhow much a defendant’s brain pathology con-tributed to the criminal behavior. Related tosanity is the issue of diminished capacity, inwhich the defendant’s neuropathology maynot be exculpatory but may have contributedto the behavior in some manner. Courts of-ten take such factors into account when con-sidering sentencing options. The contributionbrain pathology may have played in a crime

is decidedly relevant in death penalty cases,where a judge or jury must make decisionsabout the defendant’s risk of future danger-ousness and whether to impose the ultimatesentence.

Brain injury can take many forms. For pur-poses of this article, brain injury will be de-fined as any acquired brain change, whethertraumatic, vascular, neurological disease, orencephalopathies, although the emphasis willbe on the cognitive changes most often as-sociated with CHI. The persistent cognitivedifficulties often associated with CHI suchas problems with sustained attention, infor-mation processing, recall of newly learnedinformation, language, impulse control, mo-tivation, problem solving, and judgement17

seem to form a common basis of concern forthe criminal courts. It is obvious, for prac-titioners familiar with CHI, how the patientwith receptive and expressive language prob-lems secondary to left hemispheric injurycould have difficulty defending himself or her-self at trial and how the language problemsmight be related to responsibility given theright context (eg, entering a restricted areabecause he or she could not understand awarning sign, difficulty modulating impulsessecondary to frontal-subcortical damage). Inmost instances, the issues are not nearly asclear and are troublesome for clinical and legalprofessionals alike.

For neuropsychologists to competently ad-dress such concerns in the criminal courts,they must have a reasonable degree of under-standing of the legal issues involved and anappreciation of the differences between clin-ical and forensic practice.18,19 What followsare brief introductions to the theoretical dif-ferences between clinical and forensic work,the forensic evaluation process, historical andcurrent perspectives on criminal competen-cies and responsibility, prediction of dan-gerousness, and professional and ethical is-sues often encountered in criminal forensic

P1: FNN/FGL P2: FNN


806 JOURNAL OF HEAD TRAUMA REHABILITATION/APRIL 2000

neuropsychology. There are excellent texts towhich clinicians can refer for further discus-sion of forensic practice issues beyond thescope of this article.16,20–22

THEORETICAL DIFFERENCES BETWEENCLINICAL AND FORENSIC EVALUATIONS

There are some major differences betweenclinical and criminal forensic evaluations.Goals of the two specialties often differgreatly. For example, the goal of clinical eval-uation is most often the alleviation of hu-man suffering through the establishment ofa coherent and efficient plan of intervention.The goal of forensic evaluation is most oftento determine whether a defendant’s psycho-logical problems meet a legal standard or toassist authorities to develop a plan of manage-ment (eg, sentencing). The different goals cre-ate different assumptions, roles, alliances, andmethods.

Assumptions

In clinical practice, it is assumed that pa-tients voluntarily seek help because they wantrelief from bothersome symptoms. The al-liance, then, becomes one of collaborationand belief. There is often a diagnosable condi-tion that occasions the service, whether theservice is assessment or intervention. Crim-inal defendants, however, may not be self-referred, or even voluntary for that matter, nordo they necessarily suffer from a psychologi-cal or neuropsychological malady. The possi-bility of harsh punishment can create tremen-dous motivation to manipulate the evaluatorand judicial system. Therefore, it is counter-productive to assume that defendants wanthelp for bothersome symptoms or to trustwithout verification. The differences in as-sumptions naturally result in different roles forpsychologists.

Roles

Given the different assumptions, there aredifferent roles inherent in clinical and foren-sic neuropsychological practice. The clinicalevaluator maintains the role of helping thepatient. Rather than patient-helper, the foren-sic evaluator attempts to maintain a role of“seeker of truth” and judicial educator.23 It isa difficult role to maintain, but the evaluatorshould realize that his or her opinion may domuch more harm than good and the potentialconsequences can be great. For example, theevaluator’s opinion in capital cases may pavethe way to a death sentence for the defendant.The reluctance to be an objective, unbiased,seeker of truth will lead the ethical neuropsy-chologist to avoid forensic work.

Alliances

The therapeutic alliance with the patientis a hallmark of good clinical rehabilitationpractice.24 Developing the relationship to fos-ter motivation and hopefulness on behalf ofthe patient is crucial.25 In this light, two is-sues are relevant in the forensic evaluationprocess. First, the encounter is an evaluation,not a therapeutic endeavor. Second, the al-legiance is with the truth, not with the de-fendant. The neutrality of forensic evaluationdoes not, however, obviate the need to de-velop rapport with the defendant or to treathim or her with dignity and respect. Rapportfosters self-disclosure and motivation to per-form during neuropsychological testing. It ispossible to maintain a professional and ethi-cal relationship while maintaining the strictboundaries of the forensic evaluation process.The difference in alliance between clinicaland forensic evaluations is exemplified in thepotential lack of confidentiality in criminalforensic practice. Confidentiality will be ad-dressed further under the Informed Consentsection.

P1: FNN/FGL P2: FNN



Methodology

These different assumptions, roles, and al-liances result in a different methodology fromthat of clinical evaluators. Common clinicalpractice incorporates an interview with thepatient, and perhaps an informant familiarwith the patient, and neuropsychological test-ing to characterize the patient’s difficulties orto arrive at a diagnosis and make treatmentrecommendations. The entire process is de-signed to provide assistance to the patient,his or her caregivers, and medical managersin a timely fashion. Forensic assessment re-quires a much broader base of informationsources than is typical of clinical practice. Itcan take time to locate and review past medi-cal and educational records and interview oth-ers familiar with the defendant. The evalua-tor must also place more weight on objectivetest results than subjective complaints, self-report checklists, and behavior during clini-cal interviews. In essence, the evaluator mustcarry out the evaluation much like a detectivewould attempt to sleuth out the truth. Thesearch for the truth requires that the forensicpsychologist gather information from a widevariety of sources aside from the defendant.

FORENSIC EVALUATION PROCESS

The theoretical differences between clin-ical and forensic neuropsychology necessi-tate procedural differences as well. The foren-sic evaluation model in Fig 126 represents asynthesis of the work of other forensic eval-uators in regard to sanity evaluation16,20–22

that the authors modified to emphasize neu-ropsychological assessment. The model, in itsideal, requires the forensic neuropsychologistto identify the defendant’s mental state andpotential diagnoses before the offense, at thetime of the offense, and at the present time.The goal is to examine continuity or disconti-

nuity in neuropsychological status across timevia consistencies or inconsistencies betweentimes and data sources (self-report or subjec-tive and corroborative or objective). For ex-ample, did the defendant’s purported prob-lems with impulse control secondary to CHIbegin at the time of injury or was the onsetat the time of the offense? Consistency be-tween past mental status and present mentalstatus helps establish a context in which toplace potential neuropsychological function-ing at a particular point in time, such as atthe time of the offense. Occasionally, circum-stances surrounding a criminal forensic neu-ropsychological evaluation are not ideal. Forexample, time constraints can hinder acquisi-tion of corroborative records. Under such cir-cumstances, expert opinions should be quali-fied accordingly.

To evaluate neuropsychological status atall three points in time, the evaluator ac-quires information directly from the defen-dant as well as outside sources. Informationgathered from self-report and corroborativesources is then combined to provide a clin-ical conclusion about the defendant’s neu-ropsychological status at a particular point intime. An opinion of the present condition de-rives from self-report, external corroborativesources (eg, family), and evaluative corrobora-tive sources (eg, test data). Subjective informa-tion includes behavioral presentation whenthe defendant is aware of scrutiny from theevaluator. Objective information is obtainedfrom psychological and neuropsychologicaltests, mental status examinations, medical andneurological examination, neuroimaging andradiology studies, and surreptitious observa-tion. The evaluator must always consider in-tention (to perform well or to perform poorly)and effort (high to low) as factors in testperformance.10,27 It is helpful to note dif-ferences in presentation between times thatthe defendant knows that he or she is being

P1: FNN/FGL P2: FNN



Fig

1.

Mu

ltip

led

ata

sou

rces

mo

del

.Le

fth

and

colu

mn

ind

icat

esp

erio

do

fti

me

inq

ues

tio

n.

Co

nn

ecti

ng

lines

rep

rese

nt

aven

ues

of

exp

ecte

dco

nsi

sten

cy.U

ltim

ate

issu

esi

gnif

ies

the

exp

ert’

so

pin

ion

on

san

ity

(itc

ou

ldal

sore

pre

sen

tan

op

inio

no

nre

tro

spec

tive

com

pet

ency

).C

ou

rtes

yo

fD

avid

Mra

d,P

hD

,AB

PP,

U.S

.Med

ical

Cen

ter

for

Fed

eral

Pri

son

ers,

2000

,Sp

rin

gfie

ld,M

isso

uri

.

P1: FNN/FGL P2: FNN



observed and times when the defendant doesnot realize that he or she is being observed.There is little substitute for prolonged ob-servation to identify feigned and exaggeratedimpairment,7,28 and evidence of symptom re-lief when the defendant does not believe thathe or she is being watched is perhaps thestrongest of evidence of malingering.13

Although it is common for clinical evalu-ations to include corroborative informationfrom family members about current mentalfunctioning, they less commonly do so forhistorical events. Forensic evaluations requirecorroborative information about the defen-dant’s past to compare with the patient’s self-report. Corroborative information can comefrom interviews of family members, friends,and employers as well as hospital, educa-tional, military, and criminal records. Com-parison between self-report and corrobora-tive information can reveal inconsistenciesas a result of symptom exaggeration andmalingering as well as poor insight and lackof awareness so common with frontal lobe in-juries.29 A thorough record review can helpidentify past diagnoses and level of function-ing. The evaluator must be careful of informa-tion that started out as self-report but, overthe years, gradually evolved into “establishedmedical finding.” Criminal defendants occa-sionally have a long history of manipulatingthe judicial system. These individuals oftenhave multiple medical contacts, where eachonly occurs when interacting with the judi-cial system. When a defendant successfullyfeigns neuropsychological defect in the past,it is much easier to do so again. Confoundingthe problem is a tendency of evaluators to sim-ply follow along with past diagnoses ratherthan evaluating the entirety of the defendant’scurrent and past presentation. Such long-termdeception can be identified with a thoroughevaluation, although it is sometimes onerousto tell a judge or jury that a defendant hassuccessfully feigned mental illness for manyyears.

An opinion of the defendant’s condition atthe time of the offense is derived from self-report plus corroborative data (police, wit-nesses, family, and employer) and should beconsistent with present and historical condi-tions. One must take into account the fluctu-ating nature and natural course of the partic-ular illness in question. The proposed illnessshould make sense with the current presenta-tion and history. An example of inconsistencywould be a defendant with a history of CHIwith documented improvement and memoryconsolidation before the offense but a wors-ened condition with no memory after the of-fense. Such a pattern should not occur withCHI barring some comorbid process.30 It isalso not uncommon for a defendant to say heor she cannot remember the offense, whenthe investigative record indicates otherwise.

After the evaluator acquires subjectiveand objective information addressing cur-rent functioning, pre-offense functioning, andfunctioning at the time of the offense, he orshe can formulate an opinion on the ultimateissue. The ultimate issue is the question beforethe court or jury—in this instance, criminal re-sponsibility. The presence of a mental illnessor defect (in this instance neuropsychologicaldeficit) at the time of the offense does not au-tomatically equate with insanity. The evalua-tor must apply the defendant’s cognitive sta-tus at the time of the offense to the legalstandard in question. To conclude that some-one is insane simply because he or she hadmental disease or neuropsychological deficitat the time of the offense could be termed the“forensic leap of faith.” What the defendantwas thinking at the time of the offense is cen-tral to the issue of insanity, not the presenceof mental defect. The defendant’s statementsand actions at the time of the offense, orshortly thereafter, often reveal a great deal inregard to his or her motivation at the time. Forexample, a defendant’s claim that he or sheowned all of the money in the bank that he orshe robbed and was only trying to withdraw

P1: FNN/FGL P2: FNN



it would not be credible if the defendantwas disguised, brandished a firearm, threat-ened staff and customers, demanded money,and sped off without these behavioral factorssomehow fitting into a systematized delusion.The neuropsychological or behavioral deficitmust make sense given the available evidence;there has to be a logical relationship betweenthe two for an evaluator to make the judg-ment that such deficits contributed to thecriminal behavior.1,21

The above model stresses the importanceof logical consistency between informationsources (presentation, history, and behavior)and nature of the suspected illness.13 It alsohighlights the importance of eliminating ma-lingering as a contributing factor when in-consistencies arise. For example, the well-documented favorable outcomes of mild headinjury31,32 suggest that malingering shouldbe considered in the differential diagnosisif a defendant claims substantial memory orother cognitive difficulties several months af-ter their injury. The need to assess malin-gering in all forensic evaluations cannot beover-stated (see “Detecting Exaggeration andMalingering in Neuropsychological Assess-ment”by Iverson and Binder in this issue).

No one is sure of the base rate for ma-lingering, but one can safely assume higherrates in forensic practice.12 Increased baserates indicate an increased need for sensi-tivity to the condition. Several researchershave estimated the base rates of malinger-ing brain injury in the civil forensic arenato range between 2% to even 64% (whenconsidering atypical patterns in medicole-gal contexts).33–35 Frederick and Denney36

found a malingering (including feigned amne-sia, cognitive ability, psychosis, and multiplepersonality disorder) classification in 12.1% of893 consecutive male criminal defendants re-ferred for pre-trial evaluation. Given the likelysubstantial base rates of malingering in crim-inal forensic settings, it would be prudent to

address malingering in any such neuropsycho-logical evaluation. Rogers12 concluded thatthe “assessment of response styles contin-ues to be an essential component of clini-cal assessment” and that “psychologists andother mental health professionals must em-ploy the same degree of thoroughness in theassessment of malingering and defensivenessas they would in establishment of any diag-nosis.”(p. 396) Shapiro22 went so far as to ad-monish that assessment of malingering “is crit-ical when doing a forensic examination.”(p. 37)

Given such conclusions, failure to address ma-lingering in forensic neuropsychological eval-uations could reflect an inadequate, even in-competent evaluation.

Malingering is beginning to become moreimportant to the judiciary as well with in-creased awareness of neuropsychological syn-dromes. The authors have both receivedcourt-ordered referrals asking whether mem-ory loss was feigned or legitimate. The USFifth Circuit Court of Appeals recently uphelda 25-month enhancement of sentence for ob-struction of justice based on the lower court’sbelief that the defendant had feigned mentalillness to avoid prosecution.37 The US DistrictCourt for the Western District of Missouri re-cently assessed the cost of multiple mentalhealth evaluations against a defendant who ad-mitted that he feigned mental illness in an ef-fort to be found incompetent to stand trial.38

This increased scrutiny by the courts stronglysuggests that neuropsychologists participat-ing in criminal forensic practice must incorpo-rate assessment of malingering in their evalua-tions. The following sections will cover basiclegal standards for competency and insanity,standards that form the basis for many foren-sic neuropsychological evaluations.

CRIMINAL COMPETENCIES

In a broad sense, competency is the capac-ity to decide or perform certain functions. In

P1: FNN/FGL P2: FNN



legal sense, it is nearly always conceptualizedin terms of “knowledge,” a decidedly cogni-tive concept. More specifically, competencyimplies a person’s understanding of the issuesrelevant to participation in a particular legalproceeding.14 These issues include a sense ofappreciation regarding nature of the proce-dure, risks, nature and likelihood of success,available options, and advantages and disad-vantages of potential decisions. Ever since themiddle 1700s,16 Western law has promulgatedthat it is not proper to allow a defendant withmental incompetence to plead guilty or betried, and in the United States it has been longviewed as a violation of the 14th Amendmentright to due process to try a person who isincompetent.39 Although defined by statute inmany jurisdictions, most jurisdictions followcase law in dividing understanding into fac-tual and rational aspects based on the standardpresented in Dusky v US.40

In Dusky, the US Supreme Court stated,“the test [competency] must be whetherhe [defendant] has sufficient present abil-ity to consult with his attorney with areasonable degree of rational understand-ing and a rational as well as factual under-standing of proceedings against him.”40(p. 402)

The standard makes several points. The is-sue is one of current ability, as opposed tosome time in the past. Also, criminal de-fendants must have not only a factual buta rational understanding of their legal situa-tion. Both of these abilities are actually quiteminimal.16,20 Factual understanding generallyrefers to such things as the defendant’s abil-ity to repeat information, paraphrase the in-formation, and demonstrate some ability toapply the information. Rational understand-ing refers to a defendant’s ability to ma-nipulate factual information in a reasonablemanner. The defendant should be able tobring to bear reasonable judgment, compre-hension, and reality testing and be able toweigh to some degree the risks and bene-

fits of various potential options before himor her. The standard also demands that a de-fendant only have a reasonable level of un-derstanding as opposed to a perfect level ofunderstanding.

It is common for mental health evaluatorswith limited experience to set the standardof competency too high. An example of acourt addressing this issue occurred in Weiterv Settle.41 Although not a broadly authorita-tive case from a legal perspective, it is widelyused to demonstrate basic aspects of compe-tency to mental health evaluators.16 The casepoints out the common mistake of conclud-ing that a person is not competent simply be-cause he or she has a mental disease or de-fect. According to the findings in the case, adefendant must be oriented and know his orher basic charge; must understand that he orshe is in court of law, which includes a basicunderstanding of the roles of judge, prosecu-tor, defense attorney, and jury; must have thewherewithal to tell the basic facts of the caseto his or her lawyer “whether colored or notby mental aberration”;and have enough mem-ory to relate his or her story.41(pp. 321–322) Sub-sequent case law substantially softened the re-quirement for memory of the events such thata competent defendant does not necessarilyneed to recall the alleged offense.42 The cur-rent federal statute describes incompetencyas, the result of a mental disease or defect,the person is unable to understand the natureand consequences of the proceedings againsthim or her or assist properly in his or herdefense.43

Contextual nature of competency

Grisso20 presented a conceptual frameworkin regard to evaluating competency that em-phasizes its contextual nature. Deciding howmuch competence is required depends on theabilities required for that context. He presentsthese five areas of analysis relevant to neu-ropsychologists asked to decide whether a

P1: FNN/FGL P2: FNN



defendant’s cognitive deficits eliminate com-petency.

Functional description of specificabilities

The primary objective of a competencyevaluation is to describe the defendant’sstrengths and deficits relevant to the le-gal standard for procedural competency. Theevaluator must know the legal standard andbe able to apply his or her knowledge ofthe defendant’s functioning to that specificstandard.

Causal explanations for deficitsin competency abilities

The evaluation should provide informationdescribing the cause of observed deficits incompetency abilities. Neuropsychologists areequipped to communicate the neuroanatom-ical and neuropathological basis for deficitspresented and to rule out other potentialcauses of performance (ignorance, situationalinfluences, cultural influences, malingering).

Interactive significance of deficitsin competency ability

The evaluator should attempt to place thedefendant’s strengths and weaknesses intocontext, that is, the ecological demands re-quired of him or her given the specific legalsituation. Although the standard for compe-tency does not change, the demands requiredof the defendant will vary given the complex-ity of the case. More is required from a de-fendant in a long, multiple-count bank fraudtrial than a single charge of illegal reentry afterdeportation. Likewise, pleading guilty will re-quire less cognitive skills than a lengthy trial.Before concluding a defendant’s competency,one must have a sense of what demands willbe placed on him or her through the particu-lar legal proceedings.

Conclusory opinions about legalcompetency and incompetency

Evaluators provide opinions regarding thedefendant’s competency. It must be remem-bered that the trier of fact (in this instance, thejudge) will make the actual legal finding re-garding competence. The forensic neuropsy-chologist’s role is to simply provide an expertopinion for the court’s consideration. Judgeswill often consider other salient facts beyondthat provided by the forensic neuropsycholo-gist before making a legal ruling.

Prescriptive remediation for deficitsin competency abilities

If the forensic neuropsychologist believesthe defendant incompetent, it is his or herresponsibility to provide prognostic consid-erations and outline remedial options andpotential dispositional ideas from a clinicalperspective. Here is where the neuropsy-chologist can educate regarding the natureof the condition, what treatment optionsare available, and their likely success po-tential. Grisso20 pointed out issues to con-sider: Are the deficits remediable?; if so, whatis the treatment required for remediation?;how long will the remediation likely require?;what local facilities or programs are avail-able?; and what are the restrictions inherentwith these facilities? Depending on the na-ture of the case, courts may have the optionto place defendants in community rehabilita-tion programs. In many instances the courthas little option but to refer the defendantto state (or federal) forensic hospitals thatmay, or may not, have neurocognitive reme-diation capability. The goal of treatment isremediation of the deficits sufficient to re-store competency. This level of therapeuticoutcome is likely lower than that typicallyespoused in general clinical rehabilitation.The goal is the ability to advance success-fully through legal proceedings rather than

P1: FNN/FGL P2: FNN



successful independent living and communityreentry.

Psychological test instruments forcompetency to stand trial

There are a variety of tests and ques-tionnaires available to assess knowledge andpotential decision-making capacity of crim-inal defendants. Foremost among these isthe recently published MacArthur Compe-tency Assessment Tool-Criminal Adjudication(MacCAT-CA).15 The MacCAT-CA is a struc-tured interview and takes about 1 hour toadminister. The Georgia Court CompetencyTest (GCCT)44 and the Competency Assess-ment Instrument (CAI)45 are also structuredinterviews and take about 45 minutes to ad-minister. The GCCT and CAI rely heavily onopen-ended questions, as does the MacCAT-CA. The Competence Assessment for StandingTrial for Defendants with Mental Retardation(CAST-MR)46 was designed to overcome thedifficulties in asking such open-ended ques-tions of criminal defendants judged to havemental retardation by using a multiple-choiceformat for all but the last section of items.Each of these instruments has scoring criteriaand suggested cut-offs for establishing compe-tency or incompetency to stand trial.

Because competency is a contextual issue,the authors caution against the use of strictcut-offs and recommend using such instru-ments to gain information about the defen-dant’s level of understanding and reasoningability. None of the available instruments in-cludes measures of cognitive ability beyond le-gal knowledge and decision-making capacity.It is up the to the neuropsychologist to bringtogether the defendant’s cognitive strengthsand weaknesses as they relate to issues ofcompetency. It is possible a defendant mayperform well on any of these competency in-struments and yet demonstrate such severecognitive deficits as to bring his or her com-petency into serious question. There is no re-

search demonstrating the utility of using theseinstruments with people who have traumaticbrain injuries. In addition, none of these com-petency instruments have indices of subjectperformance validity, and all of them appeareasy to fake by defendants simply claiming ig-norance.

Case example competency to standtrial

Mr Barns (not his real name) is a 50-year-old manreferred for mental health evaluation to address his com-petency to stand trial for multiple counts of conspir-acy to manufacture and distribute methamphetamine,and possession of weapons. He has a General Edu-cation Diploma and 1 year of college. He successfullyserved in the US Army in Vietnam. He successfully de-veloped multiple businesses before becoming involvedin drugs and manufacturing methamphetamine. He wasarrested under a false name and inadvertently released.He then spent 18 months moving his methamphetaminelaboratory around the region successfully eludingpolice.

After his final arrest, he supposedly fell at the countyjail and was found having what appeared to be convul-sions. He was transported to the local hospital. Duringthe examination, 45 minutes after the event, he wasalert but claimed he could not remember his name, hislocation, or his personal history. Physical and neurolog-ical examination were otherwise normal. Blood labora-tory results were normal with exception of presence ofmethamphetamine. Computed tomography (CT) scanof the head without contrast results revealed no abnor-malities. He was discharged back to the jail with thediagnosis of “CHI with concussion.” He returned to jailafter 3 hours in the emergency department.

Eighteen days after the fall, Mr Barns underwentan outpatient mental health evaluation regarding hiscompetency to stand trial. He was basically uninfor-mative during the interview because he indicated hedid not understand questions or remember what wasgoing on around him. The evaluator considered himnot competent to stand trial because he could not as-sist adequately with his attorney. He was consideredmentally ill because his “selective amnestic difficulty”struck the evaluator as a form of conversion reaction.The evaluator then concluded, “No malingering of amental disorder could be this bizarre in its structure orhave such consistent inconsistencies.” Mr Barns wasthen transferred for inpatient evaluation to address hiscompetency.

P1: FNN/FGL P2: FNN



The defendant presented as an alert, but disorga-nized, man with halting speech. He spoke in the thirdperson, although he referred to himself on one occa-sion using the first name of his past alias. On most oc-casions, he claimed no knowledge of his name or thedate, current state, state in which he lived, or state inwhich he was raised. He claimed no recollection of hischildhood, parents, siblings, or education. He was ableto recall the word “injury,” point to his head, and say thename of the hospital at which his injury was evaluated.He, nonetheless, demonstrated good attention duringface-to-face interaction.

Mr Barns claimed no comprehension for the di-rections of the Shipley Institute of Living Scale.47 Heachieved an estimated IQ of 87 on the Test of Non-verbal Intelligence (TONI).48 He was able to recallsix items on the Rey Auditory Verbal Learning Test,but he only recognized four items during the WordRecognition Test.7 He completed the ungrouped por-tion of the Dot Counting Test in 100 seconds, and thegrouped portion in 70 seconds, a difference sugges-tive of poor cooperation.7,49 He obtained a carelessprofile on the nonverbal portion, and an irrelevant pro-file on the verbal portion, of the Validity Indicator Pro-file (VIP).10 His performance during the AbbreviatedHiscock Forced-Choice Procedure was consistent withsimulated malingerers,50 but more striking was the facthe scored progressively worse on each of the threetrials.51 He claimed inability to complete the MMPI-2 and Structured Interview of Reported Symptoms(SIRS)52 because he could not understand the wordsused to describe the tests to him (in contrast to his ac-curate use of many of the same words during previousinterviews). Medical and neurological assessment re-sults were normal, including neurological examination,CT scans of the head with and without contrast, elec-troencephalogram, blood laboratory studies includingB12, ANA, 24-hour heavy metal screen, erythrocyte sed-imentation rate, toxicology, RPR, and human immuno-deficiency virus screening. Urinalysis results were alsonormal. The neurologist concluded there was no phys-iological reason for Mr Barn’s presentation.

Information gained from the defendant’s ex-wife re-vealed that he had a history of amphetamine abuse,with one possible drug-induced episode of paranoidpsychosis. There was also a questionable history ofposttraumatic stress disorder from his service in Viet-nam. He had no significant history of head injuries orother neurological disease. His injury was mild basedon emergency department records, and his gross mem-ory impairment for recent and remote events was simplynot consistent with the nature of his minimal head injury.Psychological testing results suggested invalid perfor-mance. In addition, inconsistencies demonstrated dur-

ing the 45-day inpatient evaluation suggested that hehad more ability than he was letting on. Lastly, the pos-sibility of his having a conversion disorder was rejectedbecause of the significant secondary gain involved andthe fact that the only psychological stressor deemedrelevant was his arrest and he had been arrested pre-viously for just as serious of charges without signs ofconversion reaction. The opinion was proffered that MrBarns was malingering. Mr Barns later received a thirdevaluation at the request of defense counsel, and thisreport also suggested that he was malingering. Thedefendant then experienced a “miraculous recovery,”pleaded guilty, and was sentenced.

This case example demonstrates the neces-sity of acquiring corroborative information.Records from the emergency departmentwere necessary to define the seriousnessof the defendant’s injury. Understanding theseverity of the insult allowed comparisonwith current symptom presentation. Mr Barnsclaimed no recollection of his entire history,so his history was provided by his ex-wifeand others who knew him in his community.Lastly, the evaluation consisted of prolongedobservation and included a variety of subjec-tive and objective measures to assess validityof his symptom presentation.

Other competencies

Competency to stand trial is only one typeof criminal competency. Occasionally, courtsalso request evaluations addressing a defen-dant’s competency to plead guilty or to act ashis or her own attorney. Although these casesare seemingly less complicated than partici-pating in a trial, these issues involve waivingconstitutional rights. Historically, courts haveheld that the standard to waive trial or coun-sel was, in some ways, higher than that re-quired to stand trial. However, in 1993, theUS Supreme Court held that the standard toplead guilty or waive right to counsel was thesame as that required to stand trial.53 The HighCourt, in essence, made Dusky more specificby pointing out that the defendant must beable to make the decision in a “knowing and

P1: FNN/FGL P2: FNN



voluntary”manner.53(p. 333) In other words, thedefendant must understand the significanceand consequences of waiving trial or coun-sel and must not be coerced into doing so.The same basic standard applies when ad-dressing competency to waive the right to re-main silent when giving a confession.54 Fora confession to be considered involuntary,there must be evidence of coercive policeactivity.55 Of interest, the High Court does notconsider command hallucinations to overridevolition.55

The same issues of knowing, intelligent,and volition apply when addressing a defen-dant’s right to waive an appeal. Competencyto waive an appeal nearly always arises indeath penalty cases when the defendant re-fuses to continue with the appeals process.Because of the nature of death penalty cases,appeals are often filed on behalf of the defen-dant even when the defendant does not re-quest it or even opposes it.

The last major issue related to competencyis competency to be put to death. In 1986,the US Supreme Court decided that execut-ing a person with mental incompetence con-stitutes cruel and unusual punishment.56 Thebasic Dusky standard still applies when evalu-ating a person’s competency to be executed,but the evaluation requires inquiry into theconvicted person’s understanding of the ex-ecution and of death in general. In arrivingat its opinion, the Court referenced Florida’sstandard that the person must have the men-tal capacity to understand the nature of thedeath penalty and why it was imposed. JusticePowell, in the concurring opinion, pointedout that a person must understand the con-nection between the crime and the punish-ment. Most other jurisdictions that allow ex-ecution have more detailed standards. Anexample description is presented in Reisnerand Slobogin,14 where the test of competencyis whether the prisoner lacks, as a result of“defects of his faculties, sufficient intelligence

to understand the nature of the proceedingsagainst him, what he was tried for, the pur-pose of his punishment, the impending fatewhich awaits him, a sufficient understandingto know any fact which might exist whichwould make his punishment unjust or un-lawful, and the intelligence requisite to con-vey such information to his attorneys or thecourt.”(p. 946) This more detailed inquiry sug-gests the prisoner must have the capacity toassist in any potential appeals in addition toan understanding of his or her current legalsituation (as indicated in Dusky) and an ap-preciation of impending death.

Competency and amnesia

Claimed amnesia for the alleged criminalactivity is not unusual. There are even plau-sible causative factors for the memory lossin some cases. The most common is likelyto be secondary to alcohol and drug use atthe time of the crime. Occasionally, however,criminal defendants will experience a neuro-logical disease severe enough to hinder recallof events around the time of the offense57

or experience a stroke or other neurologicalevent after their arrest but before trial thatwill raise concern about their competencyin general and their recollection of events al-leged in particular.13 More often, defendantswill experience the neurological trauma atthe time of their arrest (eg, gunshot wounds,head trauma from motor vehicle accidents). Inthese instances, it is not unreasonable to sus-pect some loss of memory for events directlypreceding arrest, which can include the crimethat occasioned the arrest. A defendant’s abil-ity to recall events constituting the allegedoffense is an important issue and one thatspeaks to his or her ability to establish a rea-sonable defense against the charges.

Historically, competency was substantiallylimited by such amnesia. In 1968, however,the US Court of Appeals for the District ofColumbia addressed the issue in an interesting

P1: FNN/FGL P2: FNN



manner. In Wilson v US,42 Defendant Wilsonincurred a traumatic brain injury when his ve-hicle hit a tree while he was fleeing police.He was unconscious at the scene after having“fractured his skull and ruptured several bloodvessels in his brain.”42(p. 461) He remained un-conscious for 3 weeks. Subsequently, he de-nied recollection of his offenses (five countsof assault with a deadly weapon and robbery).There were no observable mental difficultiesbeyond his claimed memory loss. The appealscourt concluded that memory loss, in and ofitself, did not necessarily constitute incompe-tency to stand trial and outlined six criteriafor determining the effect that amnesia has oncompetency: The defendant’s ability to con-sult with, and assist, his or her attorney; thedefendant’s ability to testify; whether or notevidence of the crime could be extrinsicallyreconstructed, including possible alibis; theextent to which the government assisted thedefense with this reconstruction; the overallstrength of the government’s case (eg, did iteliminate all alibis?); and, lastly, any other rel-evant facts and circumstances. The court alsoproposed a rule that when it is reasonableto conclude that an alibi would exist if thedefendant were capable of constructing one,the judge must presume one exists. Giventhese factors, a court may rule a defendantcompetent to proceed even with legitimateamnesia. It is easy to understand why courtsare concerned about claimed amnesia andthe possibility of malingering, and researchershave begun to address this issue as well.

Symptom Validity Testing (SVT) has beensuccessfully used to assess claims of amnesiafor specific past events. Based on the binomialtheorem, SVT uses a two-alternative, forced-choice procedure to test a specific ability.58–61

If that ability does not exist, the person’s per-formance will likely fall within the randomrange, much like counting heads or tails whenflipping a coin. Originally developed to as-sess somatosensory disturbances, the tech-

nique was adapted to evaluating memoryclaims.7,51,62

Binder and Frederick and colleagues63,64

initially presented the procedure with a crim-inal defendant claiming no recollection forimportant aspects of his history. They de-veloped questions regarding the defendant’shistory for which he claimed no memory.Questions were created in a two-alternative,forced-choice manner. His performance wasbelow random to such a statistically signif-icant degree, they concluded that he actu-ally had those memories but was intention-ally choosing the wrong answers to appearamnestic. Others have also written about thistechnique,9,13,37,65–67 and the authors haveused the procedure with success in evaluat-ing claims of amnesia for criminal defendants.On most occasions, judges understood andaccepted the statistical principles involved.Although a novel use of SVT, the proceduremeets scientific admissibility factors outlinedby the US Supreme Court in Daubert v Mer-rill Dow Pharmaceuticals68 by incorporatinghypothesis testing, having a known error rate,and having been subjected to peer review inthe publication process. Details about the pro-cedure’s application and limitations are pre-sented by Denney9 and Frederick.36

CRIMINAL RESPONSIBILITY: ANEVOLVING CONCEPT

The concept of addressing a person’s cul-pability before passing judgement goes asfar back as Mosaic law in the 13th centuryBC (Numbers 35:22), where “intent” to mur-der was translated “malice aforethought.”69

Greek moral philosophy also addressed in-ner will, and, with the 6th century JustinianCode, ecclesiastical law influenced secularlaw by the introduction of mens rae, or in-tent. In the 1300s, British kings pardonedmurderers who were suffering from “mad-ness.” In 1505, the first documented insanity

P1: FNN/FGL P2: FNN



acquittal by jury occurred in Britain. In theearly 1600s, the people who were insanewere described by Sir Coke as “idiots, mad-men, [and those who] wholly loseth memoryand understanding.”16(p. 190) In 1724, Britain’sJustice Tracy described insane persons asthose who are “deprived of his understand-ing and memory so as not to know what heis doing, no more than an infant, brute orwild beast.”16(p. 190) By 1812, that standard be-came an understanding between good andevil and right and wrong. By 1840, the con-cept of volition entered the British law withsuch terms as controlling disease and actingpower within which cannot be resisted. Fi-nally, in 1843 Daniel M’Naghten was foundnot guilty by reason of insanity for shootingthe British prime minister’s personal secre-tary in an attempt on the prime minister’slife. There was a subsequent outcry in pub-lic and parliament that caused the standard toswing back from a volitional one to a strictlyright/wrong standard. That right/wrong testfor insanity then became the standard in theUnited States.

The reason for reciting this history lesson isto point out that the legal definition of insan-ity changes over time and jurisdiction. In fact,change has occurred in the insanity defensein the United States in the 20th century. Whatstarted out as the M’Naghten “right/wrong”test gradually became an irresistible impulsetest70,71 and later, the Durham case openedthe doors to psychiatry in the criminal courtsby defining insanity as any action that is aproduct of mental disease or defect (ie, the“product test”).72 Several cases over the next20 years attempted to tighten the product testfor insanity by redefining mental disease73 andby limiting what mental health professionalscould say in front of a jury.74 By 1972, nearlyevery jurisdiction in the United States adoptedthe American Law Institute’s (ALI) definition,which included a two-prong test for insanityinvolving cognition and volition.75 Under the

ALI standard, a defendant could be found in-sane if he or she lacked substantial capacity, asa result of mental disease or defect, to appre-ciate the criminality (or wrongfulness) of hisor her acts or to conform his or her conductto the requirements of the law. The stan-dard also effectively eliminated repeated crim-inal acts, in and of themselves (ie, antisocialpersonality disorder), as constituting mentaldisease.

The ALI standard was in place in 1981 whenJohn Hinkley shot president Reagan, JamesBrady, and two law enforcement personnel,believing this act would endear him to a spe-cific Hollywood actress. He was found notguilty by reason of insanity under the voli-tional prong of the ALI standard. There was animmediate public backlash resulting in the In-sanity Defense Reform Act (IDRA), which be-came law in 1984. This standard is currently inplace within the federal jurisdiction and setsthe basis for insanity in most state jurisdic-tions. In essence, the pendulum swung backto a purely right/wrong test, just as it did inBritain in 1843. Title 18 USC §17 contains thecurrent federal definition of insanity: “. . . that,at the time of the commission of the acts con-stituting the offense, the defendant, as a re-sult of severe mental disease or defect, wasunable to appreciate the nature and quality orthe wrongfulness of his acts. Mental diseaseor defect does not otherwise constitute a de-fense.”76(p. 414)

The federal statute effectively eliminatedthe volitional prong and required the pres-ence of a “severe” mental disease or defect.It also placed a restriction against mentalhealth professionals providing an opinionin front of a jury on the ultimate issue ofwhether the defendant was insane or not,and more broadly, whether the defendantcould appreciate the wrongfulness of his orher behavior.77 Although unable to providethat opinion verbally in front of a jury, profes-sionals are directed to provide their opinion

P1: FNN/FGL P2: FNN



in their reports.78 The IDRA also establishedthat once an individual is acquitted by reasonof insanity, he or she is committed to theUS Attorney General for secure hospitaliza-tion, and, in essence, assumed dangerousuntil proven otherwise. There has beensubsequent case law in the 9th Circuit thatdefines the term “wrongfulness” to meanan appreciation of the moral wrongfulness,not just the criminality,79 and it will likelybe some time before professionals are clearabout the meaning of moral wrongfulnessand how this understanding should applythroughout the country.

Changing the insanity standard back to apurely right/wrong test appears to make ita much more difficult standard to meet fordefendants who are potentially insane, par-ticularly when their “mental disease or de-fect” is the result of traumatic brain injury.Contrary to this appearance, the overall inci-dence of insanity pleas and their ultimate suc-cess rates seem to have changed little sincethe reform.80 Also contrary to public per-ception is the finding that insanity defensesare relatively rare, and successful insanity ac-quittals are even less common.80 Nationaldata are available for 1980 that reveal only2,542 people were found insane in the entireUnited States.81 The incidence of brain injury-related insanity acquittals appear to be ex-ceedingly rare. Steadman and his colleagues80

studied four states in regard to insanity pleas,acquittals, and diagnostic characteristics be-fore and after the Hinkley-related reforms.They did not specifically identify brain injuryas a diagnostic category, but found 69% ofthose people entering insanity pleas to haveschizophrenia, another psychosis, or major af-fective disorder. Nestor and Haycock82 stud-ied murderers committed in the state hospital.Twelve of the 13 insanity acquittees referredfor neuropsychological evaluation where con-sidered psychotic at the time of the crime.Melton and his colleagues16 reported the re-

sults of six studies that revealed 67%–97% ofinsanity acquittees had a significant psychosis,suggesting psychosis is usually required forsuccessful insanity defense.

The authors are aware of no studies identi-fying the rates of a neuropsychological basisfor insanity. Available research would suggestthe condition would need to rise to the levelof psychosis for success, particularly in thosejurisdictions without the volitional prong inthe insanity standard. Of 456 consecutive re-ferrals for sanity evaluation at the US Med-ical Center during the late 1980s and early1990s, only 17 were diagnosed with an or-ganic mental illness, and none were consid-ered insane. An example recently occurred atthe US Medical Center where an insanity eval-uee was diagnosed with dementia resultingfrom Alzheimer’s disease and considered in-sane for disorderly conduct and trespassing onUS Postal Service property. The defendant haddelusions that the Postal Service was stealinghis mail. In this instance, psychosis caused hisinsanity, and Alzheimer’s dementia caused hispsychosis. The authors’ anecdotal evidencesuggests that much of the time, cases are notreferred for evaluation because they are notprosecuted when an organic mental illnesswas severe enough at the time to clearly causethe criminal actions. In many other instances,these cases are dealt with at the competencyto stand trial level and never reach a pointwhere sanity is at issue. It is apparent that eval-uators more often face insanity evaluationswhere some form of less obvious organic men-tal disorder is present and may have had an ef-fect on the defendant’s past behavior. For mildcases without psychosis, it will likely be diffi-cult to support an insanity defense with thecurrent right/wrong standard. Such is the sit-uation with the following case example.

Case example sanity

Mr Goodes (not his real name) is a 33-year-oldman referred for inpatient mental health evaluation to

P1: FNN/FGL P2: FNN



address his competency to stand trial and his sanity. Hewas charged with attempted bank robbery. His medicalhistory was significant for early childhood stuttering, forwhich he received therapy in elementary school. He washit in the right side of his forehead with a brick at 8-yearsof age and sustained a skull fracture with no loss of con-sciousness (LOC). He underwent a craniectomy and,later, a cranioplasty with acrylic plate insertion. Shortlythereafter, he developed severe headaches for whichhe would medicate himself with drugs and alcohol. Hecompleted 10 years of education before he was expelledfor fighting. He received a fractured jaw in a fight at18-years of age, without LOC. Three years later, he washit in the left forehead with a baseball bat, which resultedin another skull fracture. Two years later, a head CT re-vealed a small area of encephalomalacia in the rightfrontal lobe. Four years later, an electroencephalogramwas within normal limits. He was struck on the left sideof his head again 3 years later without LOC. Later, hisjaw was fractured again in a fight without LOC. He wasstruck on the head with a blunt instrument 2 years later,from which he was dazed and lightheaded for a shortperiod with no other obvious neurological signs.

He was referred for psychiatric evaluation after hisarrest for bank robbery. The psychiatrist referred himfor neurological and neuropsychological assessment.The neuropsychologist diagnosed him as having de-mentia secondary to multiple head injuries and polysub-stance abuse. The neuropsychologist said that the de-fendant answered questions with brief, non-elaboratedresponses. The defendant insisted on wearing head-phones and listening to music during the neuropsy-chological testing, but the clinician did not believe itdecreased validity of the test results. Mr Goodes had dif-ficulty in effectively planning, organizing, and executingappropriate behaviors. The neurologist concluded thedefendant had multiple cognitive impairments includingdecreased general fund of information, remote mem-ory, and impaired problem-solving ability and decision-making capacity. The psychiatrist then concluded thatMr Goodes met the diagnostic criteria for dementia andthat, as a result of the “frontal lobe deficits and othercognitive impairments, he would not have been ableto appreciate the wrongfulness of his conduct” sec-ondary to the combination of neurological trauma andpsychoactive substance intoxication.

Witness accounts revealed that on the day beforethe robbery, Mr Goodes entered the bank and sat onthe couch in the lobby “inspecting the bank.” He staredat a specific bank teller and eventually walked out with-out conducting business. He returned the next morningand waited in the line of the same bank teller that hehad studied previously. He remained in this line evenwhen other tellers were available. He waited until it was

his turn, and he approached the teller. She was busycounting money and told him she was not yet ready. Hethen returned to the line to wait until another teller calledhim over. He then approached the soliciting teller’s win-dow and presented a note on which was written, “thisis holdup.” The bank teller jumped back saying “I’m notready yet, go to someone else!” The teller then ran tothe rear office. Mr Goodes then turned and ran out of thebank without any money. He apparently made no state-ments or sounds during the event. He was observedto be acting very nervous and to be holding the whitepiece of paper only.

Mr Goodes said he was living on the streets duringthe time of the robbery and was using a great deal ofcrack-cocaine. His memory was not very clear for thatperiod of time, but he believed it was good enough toremember visiting the boarding house every day. How-ever, he did not remember attempting to rob any banks.He consistently claimed he was not the individual whoattempted to rob the bank.

Although there was little doubt that Mr Goodes hadsignificant neurocognitive deficits and other frontal lobe,impulse-related difficulties, the primary author (RLD)did not agree with the diagnosis of dementia. All evalua-tors agreed that the defendant had a mental defect thatwould meet the legal standard for insanity. In additionto having the mental defect, the defendant was appar-ently abusing cocaine rather severely at the time. Co-caine is considered to worsen effects of brain pathologybecause it decreases impulse control, memory consol-idation, and seizure threshold.83−85 Although the inten-tional intoxication does not obviate criminal responsi-bility, its potentiating effects to brain pathology are lesswell defined. Important information came from the ac-tual behavior of the perpetrator because this shed lighton his motivation and understanding of the situation atthe time and, hence, his appreciation of the “nature andquality or the wrongfulness”76(p. 414) of his behavior (as-suming that he was the perpetrator).

Mr Goodes entered the bank on the day before theattempted robbery and was “sitting on a couch in thebank lobby inspecting the bank” and focusing his atten-tion on a specific teller. He then walked out of the bankwithout conducting business. On the next day, he waitedin line of this same teller. He was noticed to be holdinga white piece of paper and “acting extremely nervous.”This nervousness is in contrast to his lack of nervous-ness during the day previous. He clearly wanted to in-teract with the specific teller because he waited in herline even when others were available. He even returnedto the line when she said she was not ready yet. Whensummoned to another teller, he approached and pre-sented the note. He continued to stand, saying nothing.When she reacted, he “turned and ran out of the bank.”

P1: FNN/FGL P2: FNN



His nervousness was the only unusual behavior noted.He patiently waited his turn and had the self-control toreturn to the line when told to wait. He only changedhis plan when called over by another teller, and he pre-sented the note and waited calmly. He ran out of thebank after the teller became upset. It was logical for himto conclude his plan was failing at that time. It makeslittle sense to believe he would have previewed the bankand acted the way he did unless he knew the meaningof the words on his note. His behavior revealed preplan-ning, ability to shift strategy in the middle of the plan, andan appropriate response to failure. His behavior withinthe situation strongly suggested that he knew what hewas doing and that he appreciated the wrongfulness ofrobbing the bank. Lastly, he indicated his understand-ing during the evaluation that robbing banks was wrongand that he knew from experience that a robber wouldbe arrested if caught. He demonstrated no psychoticbeliefs.

It was concluded that, if Mr Goodes was the perpetra-tor, cocaine intoxication in conjunction with his mentaldefect would have influenced his behavior to some de-gree, but not to the point that he lost his appreciation forthe nature, quality, or wrongfulness of the act. The issueof intoxication and neurocognitive deficits decreasinghis appreciation of the act is an issue best addressedwith the doctrine of diminished capacity or diminishedresponsibility, rather than insanity.

Diminished capacity and responsibility

Every crime contains conscious intent(mens rae) and physical conduct (actusreus). Diminished capacity refers to a de-creased level of culpability as a result oflessor intent.86 In this regard, first-degree mur-der, second-degree murder, and manslaughterdiffer in their level of intent. Without in-voking the insanity defense, defendants oc-casionally bring mental state in to play byclaiming a decreased level of intent as a re-sult of such factors as alcohol or drug in-toxication, medication use, and neurologicalconditions.16 An extreme example is the au-tomatism defense where defendants claim noconscious awareness of their acts, such ascrimes committed while sleep walking, dur-ing a seizure, or while unaware secondary tohead injury or other encephalopathic condi-tions. Alhtough courts have generally allowed

testimony to this issue, they have limited itsuse in situations where the defendant has ex-perienced the disability previously and shouldhave taken precautions to prevent a potentialcriminal event. An example would be a manwith a known history of aggression secondaryto complex-partial seizure disorder who re-fuses prophylactic treatment to help avoidseizures (and thereby aggression and assault).

When considering diminished capacity,one must realize there are both general andspecific intent crimes. Felon in Possession ofa Weapon is an example of a general intentcrime. By definition, possessing the weaponcarries with it the prerequisite intent as longas the defendant understood, or should haveunderstood, that it was illegal for him or herto possess a weapon. Bank robbery requiresspecific intent, that is, resolve for a particu-lar act to occur. Intent must be differentiatedfrom motive. Motive prompts an act; whereas,intent “refers only to the state of mind withwhich the act is done.”87(p. 810) In the caseof Mr Goodes, neurocognitive deficit and co-caine intoxication did not eliminate or de-crease his level of intent, because it was stillto acquire money illegally from the bank.

A related, and often confused term, isdiminished responsibility. This term actu-ally refers to mitigating circumstances of thecrime that warrant a lesser punishment. Suchissues are generally brought before the courtduring sentencing. Diminished responsibilityis particularly relevant in jurisdictions that nolonger have the volitional prong in their in-sanity standard. Individuals with frontal lobedamage often have impulse control prob-lems that potentially effect their ability to re-frain from performing certain criminal acts.Deficits in cognitive, emotional, and behav-ioral controls secondary to brain injury arerelevant to a defense against many criminalcharges, either at trial or sentencing.

Mr Goodes could potentially argue dimin-ished responsibility at the time of sentencing

P1: FNN/FGL P2: FNN



for the judge to entertain a lesser penalty. Inthis regard, the additive effect of cocaine onhis cognitive processes could have lessenedhis level of appreciation for the long-term direconsequences of such an act. There is no ev-idence in this particular case, either way, toconclude it affected his appreciation of theconsequences to any significant degree. Thereis a possibility it lessened his ability to refrainfrom the criminal act because the addictive as-pects of crack-cocaine overcame his alreadyweakened restraint to such a degree that hesimply could not help himself even though heknew the nature, quality, and wrongfulness ofthe act. The behavior of Mr Goodes during therobbery, however, revealed restraint in thathe was able to wait in line for the teller andeven go back to the line when requested todo so. In addition, it must be assumed he wasintoxicated on the day before the robbery aswell, and he demonstrated adequate ability tocontrol himself on that occasion. Whether itcould have helped the case of Mr Goodes, a di-minished responsibility argument allows thejudge to take into consideration unique vari-ables, such as traumatic brain injury and co-caine intoxication, before sentencing the de-fendant.

DANGEROUSNESS

Risk of dangerousness is relevant to thestudy of brain injury,88,89 and neuropsychol-ogists occasionally find themselves in a posi-tion where they need to assess a traumaticallybrain injured person’s potential risk of dan-gerousness to others. In the criminal forensicsetting, this event could occur in relation to adefendant considered not competent to standtrial and unrestorable. In the federal jurisdic-tion, the presiding court must address the de-fendant’s potential dangerousness to othersand significant property of others on releasebecause the charges can be dismissed whena defendant found to be mentally defective is

considered unlikely to become competent inthe foreseeable future.43 Defendants who areunrestorablably incompetent in the federal ju-risdiction can be held in a secure hospitalindefinitely if they are considered dangerousbecause of mental defect.90 Nearly the sameissue arises after a defendant is found insaneand hospitalized in a secure facility.91 Theissue can come up again when a sentencedinmate who is potentially dangerous becauseof mental disease or defect reaches the endof his or her sentence, because federal statuteallows potential extended commitment.90 Ineach of these scenarios, the Federal Bureauof Prisons under authority of the US AttorneyGeneral has the mandate and challenge tofind suitable state placement—a placementthat will further ensure public safety. Moststates have similar statutory procedures. Con-sequently, it is common for mental health pro-fessionals to provide expert opinions on riskof dangerousness for the deciding court oneach of these occasions.

Assessment of risk poses certain ethicaldilemmas in that it requires a prediction of fu-ture dangerousness, because it balances theliberty interests of the individual against thesafety needs of the community.92 Recent re-search suggests that mental health profession-als can predict violence at a rate significantlybetter than chance when they include rele-vant factors in the decision analysis.93–95

Factors known to increase riskof dangerousness

Research devoted to the assessment of risk,aside from neuropsychological factors, hasrelied primarily on demographic variables.The most well known of these studies is bySwanson and colleagues,96 who found thatbeing male, young, of lower socioeconomicstatus, abusing drugs or alcohol, having amajor mental disorder, and suffering a ma-jor mental disorder in combination with sub-stance abuse or dependence are demographic

P1: FNN/FGL P2: FNN



factors that increase the risk of violence inthe community. Meta-analysis suggests thatthe strongest predictor of violence is a historyof violence.95 Neurocognitive contributionsto risk have been studied less thoroughly.Research with childhood neuropathology im-plies that early cerebral deficits can predis-pose future dangerousness, particularly whencombined with environmental factors, suchas an abusive family.97,98 It is readily ap-parent that neuropsychological factors canplay a relevant role in the production ofviolence.

Neuropathology and the potentialfor violence

It is well known that large portions of thebrain are involved not in the activation ofbehavior but in the inhibition of behavior.Damage to the prefrontal cortex and tempo-ral poles or the frontal-subcortical system inwhite matter ischemia or diffuse axonal shear-ing can cause a behavioral disinhibition syn-drome, often termed “pseudopsychopathic,”that can surface as a combination of jocularity,impulsivity, behavioral dyscontrol, and sexualdisinhibition.30,31

Temporal regions via electroencephalo-gram and structural abnormalities imaged onhead CT have been implicated in brief vio-lent behaviors.99,100 Other research has im-plicated focal frontal lesions and seizure dis-orders in violence.101 Generalization of suchfindings, however, is fraught with difficultiessuch as definition of target behaviors and par-ticipant demographics, but most notably bythe complexity of interaction between braincenters in which a lesion in one area (eg, hy-pothalamus) can cause aggression in the con-text of other lesioned areas (eg, amygdala).102

Lastly, neurotransmitters have also been im-plicated in aggression. GABA and serotoninseem to have inhibitory effects on aggression,whereas catecholamines produce excitatoryeffects.103 There is still much to learn regard-

ing the regulation of aggression and overalldangerousness in head injury.

PROFESSIONAL AND ETHICAL ISSUES

Mental health professionals engaged inforensic evaluation must maintain their rolesas unbiased evaluators and educators.18,23 Itmust be remembered that mental health ex-perts provide an opinion regarding the issueat hand, and that the trier of fact (judge orjury) makes the final conclusion. The evalua-tor must ardently maintain a level of indepen-dence before, and during, an evaluation. Afterthe evaluation and report, the evaluator canthen become an advocate of his or her opin-ion and an educator for the trier of fact butmust still refrain from becoming an advocatefor, or against, the defendant.

Consistent with American PsychologicalAssociation’s ethical guidelines104 and theForensic Specialty Guidelines,18 neuropsy-chologists involved with forensic activity in acriminal setting should have sufficient com-petence to practice. Forensic psychology,like neuropsychology, requires a specializedknowledge base and expertise. The neuropsy-chologist practicing in the criminal arenanot only needs appropriate training in neu-ropsychology, but also in criminal forensicpsychology. Important to criminal forensicpractice is providing appropriate informedconsent in route to protecting the defendant’sFifth Amendment rights.

Informed consent

A major aspect of informed consent in-cludes a correct understanding of confiden-tiality in the criminal setting. Some juris-dictions provide confidentiality between theevaluator and defendant under the “workproduct rule” as set out by case law.105 Otherjurisdictions do not provide for mental healthevaluation confidentiality; in other words, thefact of the evaluation, and the evaluator’s

P1: FNN/FGL P2: FNN



opinion, is discoverable even if there was noreport written and the requesting attorneydoes not wish testimony.106 When providingevaluations as a result of a direct court referralor court order, confidentiality does not exist.It is imperative for the evaluator to understandthe rule in use within that case jurisdiction.The evaluator must describe his or her under-standing of the use of the information to thedefendant. A difficulty arises when a clinicianevaluates competency to stand trial, but his orher testimony is requested for issues of rebut-ting an insanity defense, or worse, to providean opinion regarding potential aggravating is-sues before sentencing. Such an occurrenceis surprisingly common in death penalty casesand has been the issue of US Supreme Courtrulings (eg, Estelle v Smith107).

The Forensic Guidelines address the issuedirectly by stating it is not appropriate to pro-vide such testimony when the limits of con-fidentiality were not addressed at the onsetof the evaluation.105 Pointing out that doingso would be an ethical violation may, or maynot, prove effective in relieving the evaluatorof this onerous task. The safest procedure isto explain to the evaluee that anything saidor done, and any information obtained dur-ing the evaluation, is not private and may beused at any point in the criminal judicial pro-cess. It is noteworthy to point out that FederalCriminal Rule 12.2(c) ostensibly protects thedefendant from incriminating himself or her-self in that it does not allow the governmentto use that information against the defendantfor criminal prosecution. The rule does noteliminate the possibility of information fromthe mental health expert being used againstthe defendant at the time of sentencing to en-hance the sentence or to provide informationto justify a potential death sentence. This pos-sibility must be made known to every evalueein capital cases.

Mental health evaluators must make everyeffort to ensure a potentially incompetent

defendant does not unwittingly incriminatehimself or herself as a result of cognitivedeficit. In this regard, evaluators should notdisclose defendant statements about the al-leged crime that potentially incriminate thedefendant. It is difficult sometimes to describethe patient’s beliefs about the crime whenthose beliefs not only reveal the defendant tohave significant mental illness (eg, psychosis),but they also significantly incriminate him orher. Poor judgment as a result of head traumamay certainly contribute to the defendant’s in-ability to refrain from incriminating himself orherself. Under such circumstances, the evalu-ator must attempt to protect the defendant’sConstitutional rights by not including such de-fendant statements in the report.

Maintaining role boundaries

Lastly, forensic evaluators must maintainstrict role boundaries. It is impossible for atreating clinician to provide an independent,unbiased, evaluation. It is common for treat-ing clinicians to be requested to testify as ex-perts about the nature of the defendant’s cog-nitive deficits and their effect on the legalcase. As mentioned previously, doing so blursthe professional boundaries between the un-biased forensic evaluator and the therapeuti-cally aligned provider of services. There maybe no way around testifying about a defendantwith mental impairment as a treating clini-cian, but the best thing to do is request thatan independent forensic evaluation be com-pleted and then limit the testimony given toissues related to diagnosis and treatment.

Relatedly, it is not appropriate to provideopinions on issues the evaluator has not evalu-ated. The most common occurrence is whereattorneys, or the court, request a person whohas evaluated competency to stand trial toalso give an opinion regarding legal sanityor risk of dangerousness on release. Both ofthese questions often require an analysis ofdata different than that of the competency

P1: FNN/FGL P2: FNN



determination. To address sanity after onlyevaluating competency, without reviewingadditional information, would constitute asignificant “forensic leap of faith”—as wellas a potential ethical violation. Exceptions in-clude providing general diagnostic informa-tion that can affect the trier of fact’s de-termination of sanity, the opinion that thedefendant has never suffered from a mentalillness, for example. Whenever the evaluatorprovides opinions about issues not directly as-sessed, he or she steps out on a limb. Suchactions should only be performed after seri-ous contemplation and, preferably, consulta-tion with colleagues. Maintaining strict roleboundaries always protects the rights of thedefendant and the evaluator.

The criminal forensicneuropsychologist

Criminal forensic neuropsychology is a hy-brid of at least two practice specialties (neuro-psychology and forensic psychology) andone subspecialty (criminal forensic psychol-ogy). It has become increasingly less diffi-cult to find neuropsychologists familiar withthe intricacies of civil forensic practice.However, it is still difficult to find neuro-psychologists with the requisite training incriminal practice. As in any other area of pro-fessional psychology, the competent criminalforensic neuropsychologist will have had req-uisite training and experience in clinical neu-ropsychological assessment in the area per-tinent to the particular case (eg, traumaticbrain injury, cerebovascular accident, demen-tia) and in the application of psychology tothe pertinent area of criminal law. Knowl-edge of malingering head trauma sequela andexperience in its identification is a neces-sary aspect of work in the criminal forensicarena. A knowledge of the pertinent criminalstatute(s) is a necessary, but often not suffi-cient, condition of such practice. Althoughnot required, a familiarity with pertinent juris-

dictional case law and the relevant literature ishelpful. The goal is to provide the trier of factwith well-informed opinions. Neuropsycholo-gists without this training are not in a positionto provide such assistance. In general, the au-thors recommend that someone practicing inthe area of criminal forensic neuropsychologymeet the eligibility requirements for boardcertification in the areas of neuropsychologyand forensic psychology (with an emphasis incriminal work).

Neuropsychologists who do not have aforensic background should familiarize them-selves with American Board of Forensic Psy-chology qualifications and seek supervisionaccordingly. This approach will help protectthe defendant and society by providing thetrier of fact with a quality of informationthat will likely not exist if professionals over-step the boundaries of their professionalcompetencies.

DIRECTIONS FOR FUTURE RESEARCH

This highly specialized area of criminalforensic neuropsychology is ripe for re-search, and the possibilities seem endless.Base rates of malingered neuropsychologicaldeficit (feigning and exaggeration) in crim-inal forensic settings deserve attention, sothat correct classification rates of the instru-ments used to detect it can be locally de-termined. Covariance of malingered cognitivedeficit with malingered psychiatric illness re-mains an area of study. The depth and dura-tion of injury, using markers such as lengthof posttraumatic amnesia and initial GlasgowComa Scale score, Rancho Los Amigos Scale,and Functional Independence Measure scorescould be compared against competency out-come as measured by the MacCAT-CA andcourt decisions. Application of competencyassessment instruments to persons with braininjury deserves attention. Inter-rater agree-ment among neuropsychologists regarding

P1: FNN/FGL P2: FNN



presence of-cognitive sequelae after traumaticbrain injury and how these may affect crim-inal responsibility and competency wouldprovide pragmatic information for criminalcourts concerning the accuracy of the workpractitioners do for them. Restoration to com-

petency issues relevant to brain injury alsomerit inquiry. There is much to do to in-crease practitioners’ ability to assist defen-dants and society via the criminal courts inthis interesting and complex area of clinicalpractice.

REFERENCES

1. Hall HV, McNinch D. Linking crime-specific behav-ior to neuropsychological impairment. Int J ClinNeuropsychol. 1988;10:113–122.

2. Martell DA. Forensic neuropsychology and the crim-inal law. Law Hum Behav. 1992;16:313–336.

3. Rehkopf DS, Fisher JM. Neuropsychology in crim-inal proceedings. In: McCaffrey RJ, Williams AD,Fisher JM, Laing LC, eds. The Practice of Foren-sic Neuropsychology: Meeting Challenges in theCourtroom. New York, NY: Plenum Publishing;1997:135–151.

4. Giuliano AJ, Barth JT, Hawk GL, Ryan TV. The foren-sic neuropsychologist: precedents, roles, and prob-lems. In: McCaffrey RJ, Williams AD, Fisher JM,Laing LC, eds. The Practice of Forensic Neuropsy-chology: Meeting Challenges in the Courtroom.New York, NY: Plenum Publishing; 1997:1–35.

5. Martell DA. Estimating the prevalence of organicbrain dysfunction in maximum-security forensicpsychiatric patients. J Forensic Sci. 1992;37:878–893.

6. Borum R, Grisso T. Psychological test use in crim-inal forensic evaluations. Proc Psychol Res Pract.1995;26:465–473.

7. Lezak MD. Neuropsychological Assessment. 3rd ed.New York, NY: Oxford Univerity Press; 1995.

8. Pirozzolo FJ, Funk J, Dywan J. Neuropsychology andits applications to the legal forum. In: Dywan J,Kaplan RD, Pirozzolo FJ, eds. Neuropsychology andthe Law. New York, NY: Springer-Verlag 1991:1–26.

9. Denney RL. Symptom validity testing of remotememory in a criminal forensic setting. Arch ClinNeuropsychol. 1996;11:589–603.

10. Frederick RI. Validity Indicator Profile Manual.Minneapolis, Minn: National Computer Systems;1997.

11. Frederick RI, Crosby R, Wynkoop TF. Performancecurve classification of invalid responding on the Va-lidity Indicator Profile. Arch Clin Neuropsychol. Inpress.

12. Rogers R. Current status of clinical methods. In:Rogers R, ed. Clinical Assessment of Malinger-

ing and Deception. New York, NY: Guilford Press;1997:373–397.

13. Wynkoop TF, Denney R. Exaggeration of neuro-psychological deficit in competency to stand trial.J Forensic Neuropsychol. 1999;1(2):29–53.

14. Reisner R, Slobogin C. Law and the Mental HealthSystem. 2nd ed. St Paul, Minn: West Publishing;1990.

15. Hoge S, Bonnie R, Poythress N, Monahan J,Eisenberg M, Feucht-Haviar T. The MacArthur adju-dication competence study: development and vali-dation of a research instrument. Law Hum Behav.1997;21:141–179.

16. Melton GB, Petrila J, Poythress NG, Slobogin C.Psychological Evaluations for the Courts. 2nd ed.New York, NY: Guilford Press; 1997.

17. Richardson JTE. Clinical and NeuropsychologicalAspects of Closed Head Injury. New York, NY:Taylor & Francis; 1990.

18. Committee on Ethical Guidelines for Forensic Psy-chologists. Specialty guidelines for forensic psychol-ogists. Law Hum Behav. 1991;15:655–665.

19. Golding SL. Mental health professionals and thecourts: the ethics of expertise. Int J Law Psychia-try. 1990;13:281–307.

20. Grisso T. Evaluating Competencies. New York, NY:Plenum Publishing; 1986.

21. Shapiro DL. Forensic Psychological Assessment: AnIntegrative Approach. Boston, Mass: Allyn & Bacon;1991.

22. Shapiro DL. Criminal Responsibility Evaluations:A Manual for Practice. Sarasota, Fla: ProfessionalResource Press; 1999.

23. Saks MJ. Expert witnesses, nonexpert witnesses,and nonwitness experts. Law Hum Behav. 1990;14:291–313.

24. Sohlberg MM, Mateer CA. Introduction to Cog-nitive Rehabilitation: Theory and Practice. NewYork, NY: Guilford Press; 1989.

25. Parente R, Herrmann D. Retraining Cognition:Techniques and Applications. Gaithersburg, Md:Aspen Publishers; 1996.

P1: FNN/FGL P2: FNN



26. Mrad D. Criminal responsibility evaluations. Paperpresented at: Issues in Forensic Assessment sympo-sium, Federal Bureau of Prisons, September 1996,Atlanta, Ga.

27. Wynkoop TF, Frederick RI. Malingering of cognitivedeficits: underlying constructs. Abstract. Clin Neu-ropsychol. 1999;13:220.

28. Denney RL. A brief Symptom Validity Testing proce-dure for Logical Memory of the Wechsler MemoryScale-Revised which can demonstrate verbal mem-ory in the face of claimed disability. J Forensic Neu-ropsychol. 1999;1:5–26.

29. Benson DF, Miller BL. Frontal lobes: clinical andanatomic aspects. In: Feinberg TE, Farah MJ, eds.Behavioral Neurology and Neuropsychology. NewYork, NY: McGraw-Hill; 1997:401–408.

30. Mills VM, Cassidy JW, Katz DI. Neurological Reha-bilitation: A Guide to Diagnosis, Prognosis, andTreatment Planning. Malden, Mass: Blackwell Sci-ence; 1997.

31. Dikmen S, Machamer J, Winn R, Temkin N. Neu-ropsychological outcome at 1-year post head injury.Neuropsychologia. 1995;9:80–90.

32. Binder LM, Rohling ML, Larrabee GJ. A review ofmild head trauma. Part I: Meta-analytic review ofneuropsychological studies. J Clin Exp Neuropsy-chol. 1997;19:421–431.

33. Gouvier WD, Hayes JS, Smiroldo BB. The signifi-cance of base rates, test sensitivity, test specificity,and subjects’ knowledge of symptoms in assess-ing TBI sequelae and malingering. In: Reynolds CR,ed. Detection of Malingering During Head In-jury Litigation. New York, NY: Plenum Publishing;1998:55–79.

34. Heaton RK, Smith HH, Lehman RAW, Vogt AT.Prospects for faking believable deficits onpsychological testing. J Consult Clin Psychol.1978;46:892–900.

35. Schretlen D. The use of psychological tests to iden-tify malingered symptoms of mental disorders. ClinPsychol Rev. 1988;8:451–476.

36. Frederick RI, Denney RL. Minding your “p’s” and“q’s” when using forced-choice recognition tests.Clin Neuropsychol. 1998;28(2):193–205.

37. US v Greer (5th Cir 1998). [Findlaw: Cases andCodes: 5th Circuit Court Opinions Web site]. Avail-able at: http://Laws.findlaw.com/5th/961143cr0.html. Access Month November 18, 1998.

38. US v May, 67 F.3d 706 (WD Mo 1995), Case No.94–2831.

39. Youtsey v US, 97 F 937, 940–41 (6th Circ 1899).40. Dusky v US, 362 US 402 (1960).41. Weiter v Settle, 193 F Supp 318 (WD Mo 1961).

42. Wilson v US, 391 F2d 460 (DC Cir 1968).43. Title 18 USC §4241. Federal Criminal Code and

Rules. St Paul, Minn: West Group; 1999.44. Wildman R, Batchelor E, Thompson L, et al. The

Georgia Court Competency Test: An Attempt to De-velop a Rapid, Quantitative Measure for Fitnessfor Trial. Unpublished manuscript, Forensic Ser-vices Division, Central State Hospital, Milledgeville,Ga; 1980. Cited in: Grisso T. Evaluating Com-petencies. New York, NY: Plenum Publishing;1986.

45. McGarry AL, Lelos D, Lipsitt PD. Competency toStand Trial and Mental Illness. Washington, DC:US Govt. Printing Office; 1973.

46. Everington CT, Luckasson R. Competence Assess-ment for Standing Trial for Defendants with Men-tal Retardation. Worthington, Ohio: IDS Publish-ing; 1992.

47. Zachary RA. Shipley Institute of Living Scale: Re-vised Manual. Los Angeles, Calif: Western Psycho-logical Services; 1986.

48. Brown L, Sherbenou RJ, Johnsen SK. Test of Nonver-bal Intelligence: A Language-Free Measure of Cog-nitive Ability. Austin, Tex: Pro-Ed; 1982.

49. Rey A. L’examen psychologique dans les casd’encephalopathie traumatique. Arch Psychol,1941;28:286–340.

50. Guilmette TJ, Hart KJ, Giuliano AJ, Leininger BE. De-tecting simulated memory impairment: comparisonof the Rey Fifteen-Item Test and the Hiscock Forced-Choice Procedure. Clin Neuropsychol. 1994;8:283–294.

51. Hiscock M, Hiscock CK. Refining the forced-choicemethod for the detection of malingering. J Clin ExpNeuropsychol. 1989;11:967–974.

52. Rogers R, Bagby RM, Dickens SE. Structured Inter-view of Reported Symptoms: Professional Manual.Odessa, Fla: Psychological Assessment Resources;1992.

53. Godinez v Moran, 509 US 389 (1993).54. Miranda v Arizona, 384 US 436 (1966).55. Colorado v Connelly, 479 US 157 (1986).56. Ford v Wainwright, 477 US 399 (1986).57. Wynkoop TF. Psychiatric symptomatology and type

of treatment in Wilson’s disease: a retrospectivecase analysis. Adv Med Psychother. 1994;7:181–190.

58. Frederick RI, Carter M, Powel J. Adapting symptomvalidity testing to evaluate suspicious complaints ofamnesia in medicolegal evaluations. Bull Am AcadPsychiatry Law. 1995;23(2):227–233.

59. Haughton PM, Lewsley A, Wilson M, Williams RG.A forced-choice procedure to detect feigned or

P1: FNN/FGL P2: FNN



exaggerated hearing loss. Br J Audiol. 1979;13:135–138.

60. Pankratz L. Symptom validity testing and symp-tom retraining: procedures for the assessment andtreatment of functional sensory deficits. J ConsultClin Psychol. 1979;47:409–410.

61. Pankratz L, Fausti SA, Peed S. A forced-choicetechnique to evaluate deafness in the hystericalor malingering patient. J Consult Clin Psychol.1975;43:421–422.

62. Theodor JH, Mandelcorn MS. Hysterical blindness:a case report and study using a modern psychophys-ical technique. J Abnorm Psychol. 1973;82:552–553.

63. Binder LM. Malingering following minor headtrauma. Clin Neuropsychol. 1990;4:25–36.

64. Frederick RI, Carter M. Detection of MalingeredAmnesia in a Competency Evaluee. Paper pre-sented at: Annual Convention of the American Psy-chological Association, Toronto, Canada, August1993.

65. Cercy SP, Schretlen DJ, Brandt J. Simulated amnesiaand the pseudo-memory phenomena. In: Rogers R,ed. Clinical Assessment of Malingering and Decep-tion. New York, NY: Guilford Press; 1997.

66. Denney RL, Wynkoop TF. Exaggeration of neu-ropsychological deficits in pretrial evaluation: acase presentation. Abstract. Clin Neuropsychol.1995;9:227.

67. Reynolds CR. Common sense, clinicians, and actu-arialism in the detection of malingering during headinjury litigation. In: Reynolds CR, ed. Detection ofMalingering during Head Injury Litigation. NewYork, NY: Plenum Press; 1998:261–286.

68. Daubert v Merrell Dow Pharmaceuticals. 509 US579 (1993).

69. Tanakh: A New Translation of the Holy Scrip-tures According to the Traditional Hebrew Texts.Philadelphia, Pa: Jewish Publication Society;1982.

70. Parsons v State, 81 Ala 577, 596 2 So 854 (1883).71. Davis v US, 160 US 469 (1895).72. Durham v US, 214 F2d 862 (DC Cir 1954).73. McDonald v US, 312 F2d 847 (DC Cir 1962).74. Washington v US, 390 F2d 444 (DC Cir 1967).75. American Law Institute Model Penal Code,

Section 4.01 (1962).76. Title 18 USC §17. Federal Criminal Code and

Rules. St Paul, Minn: West Group; 1999.77. Rule 704(b). Federal Criminal Code and Rules.

St Paul, Minn: West Group; 1999.78. Title 18 USC §4247(c)(4)(B). Federal Criminal

Code and Rules. St Paul, Minn: West Group; 1999.

79. US v Dubray, 854 F2d 1099 (8th Cir 1988).80. Steadman HJ, McGreevy MA, Morrissey JP,

Callahan LA, Robbins PC, Cirincione C. Beforeand After Hinckley: Evaluating Insanity DefenseReform. New York, NY: Guilford Press; 1993.

81. Steadman HJ, Rosenstein MJ, MacAskiel RL,Manderschied RW. A profile of mental disorderedoffenders admitted to inpatient psychiatric ser-vices in the United States. Law Hum Behav.1988;12:91–99.

82. Nestor PG, Haycock J. Not guilty by reason ofinsanity of murder: clinical and neuropsycholog-ical characteristics. J Am Acad Psychiatry Law.1997;25:161–171.

83. Hartman DE. Neuropsychological Toxicology. NewYork, NY: Pergamon; 1988.

84. Mittenberg W, Motta S. Effects of chronic cocaineabuse on memory and learning. Arch Clin Neu-ropsychol. 1993;8:477–483.

85. Washton AM, Gold MS. Chronic cocaine abuse: ev-idence for adverse effects on health functioning.Psychiatry Ann. 1984;14:733–743.

86. Clark CR. Specific intent and diminished capac-ity. In: Weiner IB, Hess AK, eds. Handbook ofForensic Psychology. New York, NY: Wiley & Sons;1987:352–377.

87. Black’s Law Dictionary. 6th ed. St Paul, Minn: WestPublishing; 1990.

88. Volavka J, Martell D, Convit A. Psychobiology ofthe violent offender. J Forensic Sci. 1992;37:237–251.

89. Raine A. The Psychopathology of Crime. LosAngeles, Calif: Academic Press; 1993.

90. Title 18 USC §4246. Federal Criminal Code andRules. St Paul, Minn: West Group; 1999.

91. Title 18 USC §4243. Federal Criminal Code andRules. St Paul, Minn: West Group; 1999.

92. Grisso T, Appelbaum PS. Is it unethical to offerpredictions of future violence? Law Hum Behav.1992;16:621–633.

93. Monahan J. Mental disorder and violent behav-ior: perceptions and evidence. Am Psychol.1992;47:511–521.

94. Monahan J, Steadman H, eds. Violence andMental Disorder: Developments in Risk Assess-ment. Chicago, Ill: University of Chicago Press;1994.

95. Mossman D. Assessing predictions of violence: be-ing accurate about accuracy. J Consult Clin Psychol.1994;62:783–792.

96. Swanson JW, Holzer CE, Ganju V, Jono RT. Vio-lence and psychiatric disorder in the community:evidence from the epidemiologic catchment area

P1: FNN/FGL P2: FNN



surveys. Hosp Community Psychiatry. 1990;41:761–770.

97. Lewis DO, Moy E, Jackson LD, et al. Biopsy-chological characteristics of children who latermurder: a prospective study. Am J Psychiatry.1985;142:1161–1167.

98. Lewis DO, Lovely R, Yeager C, Della Femina D. To-ward a theory of the genesis of violence: a follow-upstudy of delinquents. J Am Acad Child Adol Psychi-atry. 1989;28:431–436.

99. Tonkonogy JM. Violence and temporal lobe lesion:head CT and MRI data. J Neuropsychiatr Clin Neu-rosci. 1991;3:189–196.

100. Wong MT, Lumsden J, Fenton GW, Fenwick PB. Elec-troencephalography, computed tomography andviolence ratings of male patients in a maximum-

security mental hospital. Acta Psychiatr Scand.1994;90:97–101.

101. Heinrichs RW. Frontal cerebral lesions and violentincidents in chronic neuropsychiatric patients. BioPsychiatry. 1989;25:174–178.

102. Schreiner L, King A. Rhinencephalon and behavior.Am J Physiol. 1956;184:486–490.

103. Piacente GJ. Aggression. Psychiatr Clin North Am.1986;9:329–339.

104. American Psychological Association. Ethical princi-ples of psychologists and code of conduct. Am Psy-chol. 1992;47:1597.

105. US v Alvarez, 519 F2d 1036 (3rd Cir 1975).106. US ex rel Edney v Smith, 425 F Supp 1038 (EDNY

1976).107. Estelle v Smith, 451 US 454 (1981).

clinical neuropsychology in the criminal forensic setting · neuropsychology. there are excellent...

Documents