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June 17, 2013

"The Impact of Neuroimages in the Sentencing Phase of Capital Trials"

The title of this post is the title of this notable new research paper now available on SSRN and co-authored by Michael Saks, N. J. Schweitzer, Eyal Aharoni and Kent Kiehl.  Here is the abstract:

Although recent research has found that neurological expert testimony is more persuasive than other kinds of expert and non-expert evidence, no impact has been found for neuroimages beyond that of neurological evidence sans images.  Those findings hold true in the context of a mens rea defense and various forms of insanity defenses. The present studies test whether neuroimages afford heightened impact in the penalty phase of capital murder trials.

Two mock jury experiments (n=825 and n=882) were conducted online using nationally representative samples of persons who were jury-eligible and death-qualified.  Participants were randomly assigned to experimental conditions varying the defendant’s diagnosis (psychopathy, schizophrenia, normal), type of expert evidence supporting the diagnosis (clinical, genetic, neurological sans images, neurological with images), evidence of future dangerousness (high, low), and whether the proponent of the expert evidence was the prosecution (arguing aggravation) or the defense (arguing mitigation).

For defendants diagnosed as psychopathic, neuroimages reduced judgments of responsibility and sentences of death.  For defendants diagnosed as schizophrenic, neuroimages increased judgments of responsibility; non-image neurological evidence decreased death sentences and judgments of responsibility and dangerousness.  All else equal, psychopaths were more likely to be sentenced to death than schizophrenics.  When experts opined that defendant was dangerous, sentences of death increased.  A backfire effect was found such that the offering party produced the opposite result than that being argued for when the expert evidence was clinical, genetic, or non-image neurological. But when the expert evidence included neuroimages, jurors moved in the direction argued by counsel.

June 17, 2013 at 02:59 PM | Permalink


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Welcome to the lawyer Twilight Zone, where up is down, black is white, evil is good.

A paranoid schizophrenic who stabs a stranger defending himself against radar beamed at his brain is more dangerous in and out of prison and mental hospital, than the antisocial personality Mafia assassin. Yet the paranoid gets immunity for this and all future murders. The Mafia assassin gets the death penalty.

All mitigating factors are really aggravating factors for public safety. They are mitigating factors only because the defendant is a precious commodity, generating massive government make work for lawyers and other government workers, including treating psychiatrists, who usually advocate for mitigation. These treatment providers are generating more rent for themselves than the lawyer.

Now, should Andrea Yates be put to death after drowning her 5 children to save them from the devil? The mitigating factor in her case was that her doctor took her off her medications (out of fear of being sued for a side effect of tardive dsykinesia). Should the doctor be sued or arrested for the highly foreseeable consequences of his decision? No. The lawyer or the entire class of plaintiff lawyers should be made to pay for intimidating the doctor into wrongheaded defensive medicine. When the lawyer causes a crime, now that is a mitigating factor.

Posted by: Supremacy Claus | Jun 17, 2013 3:30:35 PM

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