Criminal Forensic Neuropsychology in the Courtroom: Criminal Cases
Whether you are assisting the plaintiff or the defense in cases where traumatic brain injury (TBI) is claimed, it is important to be aware of the issues that may be raised in the courtroom as you prepare. From a criminal forensic neuropsychology standpoint, some of these issues can include:
1) Question of mental responsibility or lack thereof at the time of the alleged offense
2) Cognitive and psychiatric functioning of the defendant and how to assess this, both at the time of the court proceedings, at the time of the alleged offense, and predating this
3) Did the defendant experience a concussion or more significant traumatic brain injury (TBI)? To what extent is this related to the alleged offense, if any?
4) Does the defendant meet DSM-V criteria for posttraumatic stress disorder (PTSD) or other mental health disorder? To what extent is this related to the alleged offense, if any?
5) Does the defendant or claimant demonstrate any impairment? What is the defendant’s or claimant’s day to day cognitive functioning, and how independent is the individual in completing activities of daily living?
6) Are the defendant’s complaints corroborated in neuropsychological testing? Forensic neuropsychological evaluation (testing) provides a measure of cognitive functioning and has predictive value for day to day functioning.
7) Is the defendant malingering, exaggerating, fabricating, or minimizing? Is there conscious or non-conscious feigning or both? A neuropsychologist expert witness can comment on this. Does this expert take into account symptom validity, symptom exaggeration or minimization, and possible effects of being involved in litigation on the defendant’s presentation and test scores?
8) Is the defendant experiencing a somatoform disorder (Somatic Symptom Disorder in the DSM-V) or expressing distress through physical or cognitive (neurologic-appearing) symptoms? Is there indication of hypochondriasis?
Any neuropsychological assessment conducted should take into account whether putative cognitive dysfunction is representative of true abilities (i.e., whether the subject meets criteria for malingered neurocognitive dysfunction). It can be difficult for forensic neuropsychologist experts to agree on whether what is being seen in the defendant’s presentation, history, and test results represents a somatoform presentation, malingering, some combination thereof, or something else. Just because the subject has normal test data does not rule out malingering or symptom exaggeration.
A criminal forensic neuropsychology evaluation may be able to provide commentary on whether claimed symptoms are excessive and implausible compared to actual patient groups not involved in criminal cases with that issue (e.g., individuals who have experienced a traumatic brain injury
About the author. Dr. Messler is a board certified clinical neuropsychologist and licensed psychologist who has provided thousands of evaluations where the question of traumatic brain injury and symptom validity were raised. She has also served as expert consultant and witness on criminal forensic neuropsychology cases. She believes it is critical to provide a scientifically defensible opinion, and to help the jury and court understand the implications of the neuropsychological aspects of cases before them.