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The Daily Digest, 2/8/11

Welcome! If you’re here to read The Daily Digest for the first time, here’s a little background. The Daily Digest provides brief summaries of legal opinions (civil and criminal) in which cognitive neuroscience or behavioral genetics evidence has been introduced. While there has been growing interest in the intersection of law and neuroscience and behavioral genetics and law, until now, few are tracking or aware of the developing case law in this area. When individuals do become aware of a case, most assume it’s an interesting anomaly. I’ve been tracking these cases daily since 2004, and with the recent uptick in the past two years, at least 2-3 opinions per day are published in which cognitive neuroscience or behavioral genetics evidence has been used. The Daily Digest provides a brief daily summary of those opinions.

Two prototypical behavioral science cases today: disability benefits and death penalty mitigation.

Plus, a special bonus. Are you interested in reading the primary trial transcripts to see how this testimony works? Courtesy of the habeas listserv, here is a collected set of transcripts on cognitive neuroscience expert testimony.

Brain Dysfunction and Disability Benefits
Strommer v. N.Y. State & Local Police And Fire Ret. Sys., 2011 WL 240153 (N.Y. App. 2011)
A popular area for introducing cognitive neuroscience is to substantiate “invisible injuries” and claims in disability cases. In this case, the Petitioner (police officer) obtained disability retirement benefits because of the cognitive neurological effects he experienced from an off-duty head injury in a motor vehicle accident in 1989, while he was at the Police Academy. In 2004, Petitioner’s employer filed an application on behalf of petitioner for disability retirement benefits alleging that he was permanently disabled as a result of impaired judgment and impulsivity caused by severe head trauma sustained in the 1989 accident. The Comptroller approved the application. Petitioner’s application for accidental disability retirement benefits due to injuries sustained as a result of on-duty motor vehicle accidents was denied; the challenge to that determination was denied.

Brain Dysfunction and Capital Mitigation
Loyd v. State, 2011 WL 117660 (Ga. 2011)
Based on the empirical data that I have collected and analyzed on 700 cases between 2004-2009, the introduction of cognitive neuroscience as mitigating evidence in capital cases has not fared well. Here, the Defendant was convicted on his pleas of guilty of malice murder and related crimes, for which he was sentenced to death. Defendant appealed. During his original sentencing hearing, Defendant introduced evidence of a long-standing history of severe mental illness beginning with his hospitalization at the age of nine years; his diagnosis of bipolar disorder, borderline personality disorder, antisocial personality disorder, pedophilia, and polysubstance abuse and dependence. He also introduced evidence of his more recent diagnosis of frontal lobe personality disorder and organic personality disorder as the result of a closed head injury that he suffered in a truck and train collision in 1992. His death sentence was affirmed on appeal.

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