FOCUS
This Week's Focus is a "snippet" of Jennifer Van Bergen's "Brain Chemistry and Criminal Defenses, A Legal & Philosophical Inquiry" from Criminal Defense Weekly, Nov. 15-30, 2002 Vol 1, Issue 24.
Dressler briefly discusses hypnotism and MPD in his section entitled "Voluntariness: At the Edges," but he does not treat automatism or unconsciousness defenses. LeFave relates the automatism defense to the insanity defense, noting that at trial the former is frequently supplanted by the latter. These distinctions and the different ways of handling them are significant. The common ingredient of impaired consciousness or automatism defenses is an altered state of consciousness during which the defendant has committed a crime. LeFave notes that the difference between the insanity and automatism defense is the difference between the "no-mental-state" and the "no-voluntary-act.
Multiple Personality Disorder
While Robinson's criteria for impaired consciousness clears up much confusion as to such a defense, and "[s]uch a label is useful ... in that it conjures up the kind of conditions that clearly merit excuse but which are not readily covered under another excuse such as insanity," among which could be found a defense based on abnormal brain chemistry, his list excludes at least one condition which it ought to include, namely MPD. While MPD is a medically recognized disorder, which could easily fall into the category of impaired consciousness, it may or may not be "a physiologically confirmable disease or defect."
Further, there may be some question whether a person suffering from MPD (a "multiple") fits into any of the excusing conditions on Robinson's list. Or, rather, the questions must be asked, "WHO does not perceive the physical nature or consequences of his conduct?" or "Who does not know his conduct is wrong or criminal?" or "Who is not sufficiently able to control his conduct so as to be held accountable for it?" If a crime is committed by one alter who does not remember or could not control the actions of the responsible alter, the court should inquire whether the responsible alter was able to control himself, knew his conduct was wrong, etc. Yet, even if he did know and/or was able to control himself, can the host alter personality be held liable for the responsible alter's actions?
MPD brings up a rather interesting and novel question: can a person act voluntarily when they have no recall of it? A person in an altered state of consciousness may act involuntarily with or without recall of his act. Can she also act voluntarily without recall? An involuntary act with recall would be simple involuntariness. An involuntary act without recall (unconsciousness) would be automatism, and could include grand mal or psychomotor (temporal lobe) epilepsy, concussional states, and perhaps some types of metabolic disorders. A voluntary act without recall (unconsciousness), or with only partial recall (impaired consciousness), might include petit mal or psychomotor epilepsy, sleepwalking (and hypnagogic states), PTSD and MPD, or other dissociative disorders.
For example, multiples may be said to act voluntarily even when there is no recall of the act. This occurs when one personality is in possession of the body while the other is not. Some multiples are unconscious when another personality, or "alter," takes over; some are "co-conscious" - that is, they are "watching" or half-conscious. This description resembles the dissociative states (flashbacks) experienced by some persons suffering from PTSD, and those asserting crimes of passion, such as voluntary manslaughter (as a defense to murder charges), where the defendant claims to have been watching while he acted involuntarily.
Such descriptions may have relevance to a defense utilizing evidence of abnormal brain chemistry, if it can be shown that different alters possess different brain chemical compositions - but this raises an entirely different question: if a multiple can change her own brain chemistry, albeit involuntarily, does this not disprove the absoluteness and involuntariness of brain chemical changes?
While PTSD as impaired consciousness, or other states which involve half-consciousness, may fall into other categories such as involuntariness or insanity, there may be good reason for dealing with them separately. They bring to the surface issues of the nature of consciousness and personhood that challenge our notions of free will.
Brain Chemistry and Involuntary Manslaughter
The proof for an involuntary manslaughter defense would be quite different from other involuntariness defenses. If a defendant wants to claim involuntary manslaughter as a defense to murder charges he needs to prove that the killing was not intentional. Different kinds of evidence can go to proving intent. They range from circumstantial evidence of acts leading up to the crime, to evidence concerning state-of-mind directly. The latter is the point where brain chemistry might be useful. Brain chemistry data could be used to prove that the offender was acting under the influence of an overdose of noradrenaline and/or insufficient serotonin, and therefore had no specific or general intent. It is doubtful, however, that either judges or juries would accept such an argument standing alone, although brain chemistry data may be allowable as supporting evidence. But, in any case, since scientific data on brain chemistry is still new, it would have to pass the Frye, or "general acceptance," test, or the Daubert, or "validity," test, depending on the jurisdiction, in order to be introduced as evidence by a qualified expert.
If it were not introduced by an expert, it would probably not be allowed, as it would be of little assistance to the trier of fact, or would have little or no probative value. Again, there would have to be proof not only of the altered brain chemistry, and expert testimony as to how to interpret it, but also a firm connection established between the defendant's brain chemistry and his inability to form the intent. The brain chemistry data is a double-edged sword in this case, because it can be used both to prove aggressive propensities and lack of impulse control. Thus, a defendant may claim that he simply struck in a rage which he could not control, but once the defendant has opened the door to using brain chemistry, a prosecutor may say that the evidence shows only that defendant could and did form a murderous intent which cannot be excused.
Syndrome Defenses
Syndrome defenses have been used in criminal law to excuse or justify behavior otherwise held criminal. These defenses are based on the notion that prior trauma, prolonged stress, or abuse has caused the person to react abnormally and prevented him from using normal control over his behavior. The most common category of syndrome defenses is PTSD, which includes Battered Women Syndrome, action-addict syndrome, rape trauma syndrome, and abused child syndrome. Syndrome defenses can be used in a variety of ways: to establish an insanity defense, diminished capacity, or to negate the intent element of a crime.
The question is whether the new scientific data on brain chemistry shifts the legal boundaries on these defenses. For example, if PTSD, as a recognized mental disorder, is insufficient as a complete defense in a particular case, could evidence of permanent brain chemistry alterations be sufficient, or would it merely lower the hurdle? Let us posit, for example, that a woman asserting Battered Women Syndrome killed her husband while he was asleep. Ordinarily, she may not even get an opportunity to assert Battered Women Syndrome as self-defense, because she does not meet the imminence requirement. Would brain chemistry allow a jury to hear her self defense argument?
While a court might allow a jury to determine whether the defendant with abnormal brain chemistry was in imminent danger of death or severe bodily injury sufficient to justify her using violent force to defend herself, brain chemistry data does not change the imminence requirement in self defense. Only if the jury was permitted to apply the standard used in Goetz, would brain chemistry be relevant.
Collision Course
"Science may be on a collision course with one of society's most cherished beliefs," as one writer put it. That belief is, of course, free will, which this writer says is "a cornerstone of law, religion, and most people's own understanding of themselves." Neuroscience has created a new form of determinism, "biological determinism, in which free will is merely a rationalization, artifact or epiphenomenon of biochemical and genetic predestination." One neuroscientist predicts that eventually "the best criminal evidence, the very principles of jurisprudence, will come from an understanding of the principles of brain operation." According to Philip E. Johnson, a law professor at Boalt Hall School of Law, the way this will happen will be to fit the "physical causes of impulsive violence" into "one of the exceptions in common law." One professor of philosophy states that "[i]f we are able to get explanations of capacities of conscious thought, deliberation, reasoned sensitivity, and guided action in neuroscientific terms, then this naturalistic conception of voluntariness will be refined, not diminished." Scientific findings that show that brain chemistry plays a role in aggression and violence can certainly help courts make more just decisions in cases where the defendant can show trauma and document brain chemical changes. But if we "reduce everything to material causes," if we try to explain all human behavior with neuroscience, "the whole approach collapses into nihilism."
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