Christina Rivenbark & Associates

Using neuroscience as a criminal defense: How it's being done

Every defendant accused of a crime will have a wide array of defense strategies available to assist him or her to reduce the threat of conviction, or diminish the severity of punishments if conviction is unavoidable. Some of these strategies are riskier than others.

One such high-risk defense strategy is the defense of being insane, or the defense of being out of one's mind and not knowing what was happening when the alleged crime took place. That said, if such a defense is successful, it could allow an accused person to achieve a verdict of not guilty, so it shouldn't be ignored when all other bets are off.

Neurological evidence could prove a defendant was unaware of his or her actions

A new trend in criminal defense involves lawyers using neurological evidence like brain scans, behavioral testing and psychological examinations to show that a defendant was out of his or her mind and unaware of his or her actions at the time that the alleged crime took place. In some cases, defendants refer back to past head traumas or past brain conditions that may have lead to his or her behavior.

In the past, these kinds of defenses were often employed during death penalty cases. However, defendants are now using the so-called "insanity defense" or variations of it to defend against more common crimes like robberies and drug possession.

According to a recent study, for example, 250 judicial opinions in 2012 cited neurological evidence. This figure represents a 100 percent increase from the number of cases that cited neurological testing and evaluation in 2007.

Insanity defenses may be experimental at best

There is a lot of risk that defendants assume when they take their cases to trial because it's very difficult to predict how a judge or jury will view their version of the facts. When adding in the defense of insanity -- due to the nature of differing opinions about the topic -- defendants will be at risk of a jury deciding to reject evidence that supports their assertion. In this regard, it would be prudent for defendants to only employ these kinds of defenses if they can clearly prove them with difficult-to-refute evidence, and/or if all other options appear like they will result in conviction and severe punishment.

North Carolina residents accused of crimes will want to evaluate their allegations carefully -- with an understanding of the facts of their cases, the law and their potential punishments -- to ensure that they select the most strategic criminal defense given their circumstances.

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