A neurolaw perspective on psychiatric assessments of criminal responsibility: decision-making, mental disorder, and the brain

Effects of psychological torture and cybertorture with emerging digital technologies under anti-torture legal obligations in China: A mixed methods research in risks and remedies

International norms and domestic law-making and decision-making often underestimate the effects of psychological torture and the challenges posed by digital technologies like artificial intelligence, neurotechnology, and cybertechnology, such as cybertorture, used in interrogation techniques. This article focuses on how anti-torture legal measures, both in the international context and in their domestic implementation in China, respond to the contemporary challenges in the prevailing legal framework posed by the emergence of digital technologies and the effects of psychological torture. These challenges need to be considered from medico-legal perspectives in risk evaluation and remedies for the intertwined concept of neurorights and cybertorture and the effects of psychological torture, as well as introducing the argument that neurorights as an integral concept of human rights should be placed in the architecture of the human rights legal framework regarding cybertorture as a theoretical basis for legal reasoning in specific cases. This article aims to examine these challenges in the evolutionary interpretation of existing international conventions to combat torture by examining the changing trends in the interpretation of these instruments and the role played by soft law in them. It also examines how China, as a Convention's State party, provides judicial remedies for individual claims by psychological torture victims. It highlights that vagueness in the definition of concepts and the high threshold for the effects of psychological torture increase the risk of the victim suffering and act as a barrier to grant redress within medico-legal support. Using a mixed research method, it first analyzes two types of cause-of-action cases study regarding psychological torture of state compensation and involuntary admission procedures in Mental health Law. Quantitative analysis was also used to support the soundness of the exploratory conclusions drawn by the case study section. The empirical findings suggest that certain significant risk factors in China's law-making and judicial decision-making affect the fairness and availability of judicial remedies for individual claims.

Forensic neuropsychological assessment

With its firm establishment as a neuropsychology subspecialty, forensic neuropsychological assessment is integral to many criminal and civil forensic evaluations. In addition to evaluating cognitive deficits, forensic neuropsychologists can provide reliable information regarding symptom magnification, malingering, and other neurocognitive and psychological issues that may impact the outcome of a particular legal case. This article is an overview and introduction to neuropsychological assessment in the forensic mental health context. Major issues impacting the current practice of forensic neuropsychology are summarized, and several examples from case law are highlighted.

Decisional brain of lawyers at the workplace. A neurolaw pilot study

This pilot study investigated legal and non-legal professionals' decision process during a typical working day. During self-evaluated highly relevant decisions (rated through a daily diary), the two groups were asked to wear the Muse™ Headband to record their electrophysiological (EEG) activity in terms of frequency bands (delta, theta, alpha and beta). EEG cognitive findings displayed a generally increased beta power in the anterior frontal region (mainly in the right than left) for both groups during highly relevant decisions. Significantly results were also found for the legal professionals' group, for which a decrease of alpha power was found in the left compared to right frontal cortex. Furthermore, a decreased alpha power and increased delta and theta power in the right compared to left Temporo-Parietal Junction was observed in the legal professionals when taking highly relevant decisions. This pilot study suggested a specific EEG pattern for legal professionals while taking highly relevant decisions.

Exploring the connection between childhood trauma, dissociation, and borderline personality disorder in forensic psychiatry: a comprehensive case study

This case study examines the complex relationship between childhood trauma, dissociation, and Borderline Personality Disorder (BPD) within the context of forensic psychiatry. It focuses on a young murder defendant named "Paul," who has experienced various traumatic events, including childhood maltreatment and domestic violence. These experiences have led to dissociative states marked by high emotional intensity, particularly of an aggressive nature, and impaired impulse control, resulting in violent behavior during dissociative episodes. The study employs advanced assessment tools like Raven's Standard Progressive Matrices (SPM), the Millon Clinical Multiaxial Inventory-III (MCMI-III), and the Level of Service/Case Management Inventory (LS/CMI) to gain a comprehensive understanding of Paul's psychopathological condition, risk factors, and rehabilitation needs. The LS/CMI assessment highlights a high risk of recidivism, mainly influenced by family relationships, educational challenges, interpersonal connections, and aggressive tendencies. To address the multifaceted needs of individuals like Paul, the study emphasizes the importance of using transdiagnostic models for trauma and dissociation. This approach informs tailored treatment programs that include processing past traumatic experiences, improving self-identity, nurturing healthy relational patterns, and enhancing emotional regulation. Although this study is based on a single case, it serves as a model for integrating assessment tools and theoretical-clinical models in the field of forensic psychiatry. Understanding the intricate dynamics of childhood trauma, dissociation, and BPD is crucial for making informed decisions, conducting risk assessments, and developing rehabilitation programs within the justice system. Future research should expand the scope of cases and further validate assessment tools to advance our understanding of this complex relationship.

Drug-facilitated sexual assault followed by femicidal chloroform poisoning and suffocation: A case-report of criminal responsibility

INTRODUCTION

Criminal responsibility evaluation represents one of the most controversial and debated issues in forensic psychiatry. Although clear procedures have been recommended, little research exists on decision-making process by forensic psychiatrists. We present a case assessing the criminal responsibility of a murderer who committed femicide as a result of chloroform poisoning and suffocation after a drug-facilitated sexual assault.

MATERIALS AND METHODS

A.S., a 30-year-old female, was found dead in the home of S.P., a 50-year-old male. S.P. recounted killing A.S. by forced inhalation of chloroform, when the woman had experienced sensory clouding following unintentional ingestion of Zolpidem, a hypnotic agent. A multidisciplinary approach was taken to resolve the case. Autopsy, histological, genetic, and toxicological examinations were performed by a forensic pathologist, while a digital forensic examiner analysed electronic devices. A pool of three forensic psychiatrists and two psychologists was asked to assess the mental state of S.P. at the time of the crime.

RESULTS AND CONCLUSIONS

The cause of death of A.S. was identified as a lethal chloroform intoxication in altered consciousness caused by Zolpidem, while homicidal suffocation was also described. Mobile forensics demonstrated that S.P. had videotaped the crime scene, clearly revealing that A.S. had been sexually assaulted by S.P. before dying. Criminal responsibility of S.P. was evaluated through various psychological tests and seven interviews with the accused, each lasting an average of 180 min. Specialists concluded that S.P. could not be exempted from being responsible for the homicide.

Structured instruments for insanity defense evaluations: Opportunities and limitations

Insanity evaluations are often criticized for their-alleged-lack of objectivity, reliability and transparency. Structured tools to guide and support forensic evaluators during these evaluations have been developed-but they are rarely employed in forensic practice. In the present article, we consider the value of these tools for forensic practice in terms of opportunities and limitations. First, we briefly describe different insanity criteria used in Western countries. Next, we will review five structured instruments to guide insanity assessment together with their performance measures. Finally, we draw conclusions on the value of such instruments for forensic practice.

Influencing factors for assessment of criminal responsibility in patients with mental disorders: A forensic case analysis between 2010 and 2020

BACKGROUND

In China, police departments usually initiate assessment of criminal responsibility after patients with mental disorders commit crimes. However, the specific conditions demanding assessment are not clearly stipulated by law. Few studies have been conducted on the epidemiological characteristics and assessment of criminal responsibility in patients with mental disorders. This study aimed to analyze the features and identify influencing factors for assessment of criminal responsibility for patients with mental disorders in a single-center cohort.

METHODS

Cases undergoing criminal responsibility assessment at the Center of Forensic Science, East China University of Political Science and Law in Shanghai (CFS, ECUPL) between 2010 and 2020 were retrospectively reviewed. Criminal responsibility was categorized as criminal irresponsibility, diminished criminal responsibility, and full criminal responsibility. Differences among the groups were then statistically analyzed.

RESULTS

In the study period, 437 patients including 361 males (82.61%) were referred for criminal responsibility assessment. Their ages ranged from 15 years to 91 years. After assessment, the number of cases with criminal irresponsibility, diminished criminal responsibility, and full criminal responsibility were 196 (44.85%), 181 (41.42%), and 60 (13.73%), respectively. The Chi-square test and nominal regression analysis showed that influencing factors for assessment of criminal responsibility comprised crime in public places (OR = 14.734; 95% CI: 1.463-148.424), crime in victim's residence (OR = 10.852; 95% CI: 1.068-110.214), crime in suspect's residence (OR = 9.542; 95% CI: 1.046-87.092), forensic psychiatric diagnosis of F1X (OR = 0.014,0.011; 95%CI:0.001-0.261,0-0.5), F2X (OR = 5.75; 95%CI:1.315-23.145), F4X (OR = 0.077; 95%CI:0.016-0.38,) and F6X (OR = 0.112,0.075; 95% CI: 0.022-0.558,0.006-0.959), criminal object of property (OR = 9.989; 95% CI: 1.305-76.455), cases of theft (OR = 0.09, 0.087; 95% CI: 0.013-0.648,0.012-0.654), and cases of endangering public security (OR = 0.152, 0.205; 95% CI: 0.034-0.678, 0.045-0.931).

CONCLUSION

Crime in public places, suspect's residence and victim's residence, forensic psychiatric diagnosis of F1X, F2X, F4X and F6X, criminal object of property, case types of theft and endangering public security were influencing factors in assessment of criminal responsibility. Therefore, special attention should be paid to patients with mental disorders under such circumstances in order to avoid bias on assessment of criminal responsibility.

Validation of a new instrument to guide and support insanity evaluations: the defendant's insanity assessment support scale (DIASS)

The insanity defense represents one of the most controversial and debated evaluations performed by forensic psychiatrists and psychologists. Despite the variation among different jurisdictions, in Western countries, the legal standards for insanity often rely on the presence of cognitive and/or volitional impairment of the defendant at the time of the crime. We developed the defendant's insanity assessment support scale (DIASS) based on a wide view of competent decision-making, which reflects core issues relevant to legal insanity in many jurisdictions. To assess the characteristics of the DIASS we asked 40 forensic experts (16% women; years of experience = 20.6 ± 12.9) to evaluate 10 real-life derived forensic cases with the DIASS; cases included defendants' psychiatric symptom severity, evaluated through the 24-itemBrief Psychiatric Rating Scale (BPRS). Exploratory factor analysis by principal axis factoring was conducted, which disclosed a two-factor solution explaining 57.6% of the total variance. The DIASS showed a good internal consistency (Cronbach's alpha = 0.86), and substantial inter-rater reliability (Cohen's kappa = 0.72). The capacities analyzed through the DIASS were mainly affected by mania/excitement and psychotic dimensions in nonresponsible and with substantially diminished responsibility defendants, while by hostility and negative symptoms in responsible defendants. The DIASS proved to be an effective psychometric tool to guide and structure insanity defense evaluations, in order to improve their consistency and reliability.

The recovery of homicidal people diagnosed with schizophrenia and schizoaffective disorder-An interpretative phenomenological analysis

OBJECTIVE

Identity recovery in people diagnosed with schizophrenia who have committed homicide poses several difficulties. Premorbid mental illnesses, the experience of psychosis, and the absence of cohesive ego functions may result in the inability to integrate the homicidal act into self-identity. Problems with integration increase the risk of recidivism and further mental problems. The aim of the present research was to explore how homicidal people diagnosed with schizophrenia make sense of their actions, and how they identify with the homicide.

METHOD

Six semi-structured interviews were conducted at a long-term psychiatric home with people who had committed homicide and who had been diagnosed with schizophrenia. The interviews were transcribed verbatim and analysed using interpretative phenomenological analysis (IPA), an idiographic method rooted in phenomenologist traditions that focuses on how participants experience and make sense of events in their lives, and how those events affect their identity and sense of self.

RESULTS

Three personal experiential themes were established as a result of the analysis: (1) homicide and responsibility; (2) homicide and self; and (3) control over threats to self and self-evaluation. (1) Homicide was often reported to have been committed in a non-conscious, delusional state that may have led to the loss of self-determination. (2) Our interviewees struggled to integrate their acts into their identities. They distanced themselves from the crime or held multiple, parallel interpretations of the act. (3) Recovering patients experienced the constant threat of entering into a delusional reality and losing control. The importance of control was central to their self-evaluation. The patients appeared to distance themselves from the homicidal act and to regard their delusional selves as a threat to their lives.

CONCLUSION

Therapy aimed at bolstering self-control, supporting the integration of the fragmented self, and raising awareness of the connections between delusional reality and standard, intersubjective reality may be helpful in reducing the instability of the self. Therapy aimed at processing complex grief and loss of family is also needed.

Factors related to bias in forensic psychiatric assessments in criminal matters: A systematic review

OBJECTIVE

Identify factors related to bias in forensic psychiatric assessments in criminal matters.

METHOD

Based on the PRISMA guidelines, we searched the following keywords with Boolean operators: (criminal responsibility OR legal responsibility OR neurolaw OR insanity defense) AND (forensic psychiatry OR assessment OR evaluation OR bias OR decision-making OR capacity OR psychometric). The search included publications from January 1998 to December 2019 in the English language, published in PubMed, Web of Science, Taylor & Francis, and Scopus databases.

RESULTS

The final sample consisted of 30 articles separated into three groups: (1) legal elements and the wording of expert reports, (2) psychometric tools applied to criminal inquiries, and (3) expert forensic technique and inter-examiner agreement.

DISCUSSION

Multiple factors for biases were identified: difficulties in equivalence between legal and psychiatric terminologies, elements of countertransference between the expert and the examinee, absence of standardization of expert evaluations, low quality of expert reports, differences in the training of professionals involved in the evaluations, use of psychometric tools, number of professionals working on the same case, and the methodology adopted. Psychometric tools developed specifically for forensic psychiatric evaluations allowed the introduction of objective parameters in expert evaluations. Special attention was found in psychometric tools structured as vignettes that allowed the detailed evaluation of legal capacities, present in the legal texts. Psychometric tools in checklist format appeared to be more susceptible to interviewer biases.

CONCLUSION

The control of inherent biases in forensic psychiatry assessments on criminal matters remains a current challenge, difficult to control in forensic practice. The identification, control and avoidance of them may improve the quality the forensic psychiatric expertise in criminal matters.

Neuroscience-based Psychiatric Assessments of Criminal Responsibility: Beyond Self-Report?

Many legal systems have an insanity defense, which means that although a person has committed a crime, she is not held criminally responsible for the act. A challenge with regard to these assessments is that forensic psychiatrists have to rely to a considerable extent on the defendant's self-report. Could neuroscience be a way to make these evaluations more objective? The current value of neuroimaging in insanity assessments will be examined. The author argues that neuroscience can be valuable for diagnosing neurological illnesses, rather than psychiatric disorders. Next, he discusses to what extent neurotechnological 'mind reading' techniques, if they would become available in the future, could be useful to get beyond self-report in forensic psychiatry.

Criminal Responsibility Scale: Development and Validation of a Psychometric Tool Structured in Clinical Vignettes for Criminal Responsibility Assessments in Brazil

Criminal responsibility assessment is undertaken by psychologists or psychiatrists to assess offenders' legal capacities, which vary among countries or regional legislations. There are two psychometric tools (i.e., checklists) validated for criminal responsibility assessment: the Roger Criminal Responsibility Scale, and the rating scale of criminal responsibility for mentally disordered offenders. Despite the existence of psychometric tools structured in clinical vignettes for evaluating legal capacities, none serve the purpose of assessing criminal responsibility. This study aims to validate a novel psychometric tool structured in vignettes for the assessment of criminal responsibility called the "Criminal Responsibility Scale." We applied the tool to 88 defendants referred for criminal responsibility assessment in a forensic medical institute in the city of Rio de Janeiro, Brazil, from December 2017 to December 2018. The validity of the Criminal Responsibility Scale and subscales were evaluated using confirmatory factor analysis. The two-factor solution proved satisfactory and met the needs for practical application of the tool (Kaiser-Meyer-Oklin = 0.82; p < 0.001). Moreover, the inter-rater reliability was evaluated by comparing the tool's final score with that of the expert's conclusion in each case and was found to be satisfactory (k = 0.667-1.0), with a resulting cutoff point of 30.50 (±2) and a Youden index of 0.509. Hence, the Criminal Responsibility Scale is an effective psychometric tool for assessments of criminal responsibility that may encourage future research in assessments of legal capacity with clinical vignette-based psychometric instruments.

The factors associated with forensic psychiatrists' decisions in criminal responsibility and social dangerousness evaluations

Despite the central role in criminal trials, there is little research on the decision-making processes of experts in forensic psychiatry. We aimed to investigate the role of sociodemographic, psychopathological, and criminological characteristics in forensic psychiatric decisions on criminal responsibility and social dangerousness in criminal trials. We analyzed 302 forensic psychiatric reports provided by 16 forensic psychiatrists from the North, Central and Southern Italy. Defendants' psychiatric symptom severity was evaluated through the 24-item Brief Psychiatric Rating Scale (BPRS), the Clinical Global Impression (CGI) scale and the Global Assessment of Functioning (GAF). Defendants judged not criminally responsible (Not-CRDs) presented with more severe psychiatric symptoms (positive symptoms, negative symptoms, manic excitement / disorganization), were more likely to be female, to be affected by a schizophrenia spectrum disorder, or bipolar spectrum disorder and to have had a higher number of previous psychiatric treatments and previous involuntary hospitalizations compared to their criminally responsible counterparts. Not-CRDs affected by a schizophrenia spectrum disorder, personality disorder, with severe psychiatric symptoms and with histories of criminal convictions and more victims were more likely to have received a judgment of social dangerousness. The forensic psychiatric evaluations were carried out on average of 770 days after the time of the crime, which in light of the other results, suggests an effect of the perceptions of the expert on the judgment of responsibility, raising the possibility of time bias on forensic judgments concerning defendants' mental responsibility.

The risks of risk. Regulating the use of machine learning for psychosis prediction

Recent advances in Machine Learning (ML) have the potential to revolutionise psychosis prediction and psychiatric assessment. This article has two objectives. First, it clarifies which aspects of English Law are relevant in order to regulate the use of ML in clinical research on psychosis prediction. It is argued that its lawful implementation will depend upon the legal requirements regarding the balance between potential harms and benefits, particularly with reference to: (i) any additional risks introduced by the use of ML for data analysis and outcome prediction; and (ii) the inclusion of vulnerable research populations such as minors or incapacitated adults. Second, this article investigates how clinical prediction via ML might affect the practice of risk assessment under mental health legislation, with reference to English Law. It is argued that there is a potential for virtuous applications of clinical prediction in psychiatry. However, reaffirming the distinction between psychosis risk and risk of harm is paramount. Establishing psychosis risk and assessing a person's risk of harm are discrete practices, and so should remain when using artificial intelligence for psychiatric assessment. Evaluating whether clinical prediction via ML might benefit individuals with psychosis will depend on which risk we try to assess and on what we try to predict, whether this is psychosis transition, a psychotic relapse, self-harm and suicidality, or harm to others.

The charm of structural neuroimaging in insanity evaluations: guidelines to avoid misinterpretation of the findings

Despite the popularity of structural neuroimaging techniques in twenty-first-century research, its results have had limited translational impact in real-world settings, where inferences need to be made at the individual level. Structural neuroimaging methods are now introduced frequently to aid in assessing defendants for insanity in criminal forensic evaluations, with the aim of providing "convergence" of evidence on the mens rea of the defendant. This approach may provide pivotal support for judges' decisions. Although neuroimaging aims to reduce uncertainty and controversies in legal settings and to increase the objectivity of criminal rulings, the application of structural neuroimaging in forensic settings is hampered by cognitive biases in the evaluation of evidence that lead to misinterpretation of the imaging results. It is thus increasingly important to have clear guidelines on the correct ways to apply and interpret neuroimaging evidence. In the current paper, we review the literature concerning structural neuroimaging in court settings with the aim of identifying rules for its correct application and interpretation. These rules, which aim to decrease the risk of biases, focus on the importance of (i) descriptive diagnoses, (ii) anatomo-clinical correlation, (iii) brain plasticity and (iv) avoiding logical fallacies, such as reverse inference. In addition, through the analysis of real forensic cases, we describe errors frequently observed due to incorrect interpretations of imaging. Clear guidelines for both the correct circumstances for introducing neuroimaging and its eventual interpretation are defined.

Causality in criminal forensic and in civil disability cases: Legal and psychological comparison

Causality (or causation) is central to every legal case, yet its underlying philosophical, legal, and psychological definitions and conceptions vary. In the criminal context, it refers to establishing the responsibility of the perpetrator of the criminal act at issue in terms of the person's mental state (mens rea), and whether the insanity defense applies. In the forensic disability and related context, it refers to whether the index event is a material or contributing cause in the multifactorial array that led to the psychological condition at issue. In both the criminal and tort contexts, the legal test is a counterfactual one. For the former, it refers to whether the outcome involved would have resulted absent the act (e.g., in cases of simultaneous criminal lethal action, which one is the but-for responsible one). For the latter, it concerns whether the claimed psychological condition would be present only because of the incident at issue. The latter event at issue is distinguished from the criminal one by its negligence compared to the voluntary intent in the criminal case. The psychological state of the perpetrator of criminal conduct can be analyzed from a biopsychosocial perspective as much as the civil one. In this regard, in the civil case, such as in forensic disability and related assessments, pre-existing, precipitating, and perpetuating factors need to be considered causally, with personal and social resilience and protective factors added, as well. In the criminal context, the same biopsychosocial model applies, but with mental competence and voluntariness added as a critical factor. The advent of neurolaw has led to use of neuroscience in court, but it risks reducing the complexity of criminal cases to unifactorial, biological models.

Adolescents' Neural Processing of Risky Decisions: Effects of Sex and Behavioral Disinhibition

Background

Accidental injury and homicide, relatively common among adolescents, often follow risky behaviors; those are done more by boys and by adolescents with greater behavioral disinhibition (BD).

Hypothesis

Neural processing during adolescents' risky decision-making will differ in youths with greater BD severity, and in males vs. females, both before cautious behaviors and before risky behaviors.

Methodology/Principal Findings

81 adolescents (Patients with substance and conduct problems, and comparison youths (Comparisons)), assessed in a 2 x 2 design (Patients:Comparisons x Male:Female) repeatedly decided between doing a cautious behavior that earned 1 cent, or a risky one that either won 5 or lost 10 cents. Odds of winning after risky responses gradually decreased. Functional magnetic resonance imaging captured brain activity during 4-sec deliberation periods preceding responses. Most neural activation appeared in known decision-making structures. Patients, who had more severe BD scores and clinical problems than Comparisons, also had extensive neural hypoactivity. Comparisons' greater activation before cautious responses included frontal pole, medial prefrontal cortex, striatum, and other regions; and before risky responses, insula, temporal, and parietal regions. Males made more risky and fewer cautious responses than females, but before cautious responses males activated numerous regions more than females. Before risky behaviors female-greater activation was more posterior, and male-greater more anterior.

Conclusions/Significance

Neural processing differences during risky-cautious decision-making may underlie group differences in adolescents' substance-related and antisocial risk-taking. Patients reported harmful real-life decisions and showed extensive neural hypoactivity during risky-or-cautious decision-making. Males made more risky responses than females; apparently biased toward risky decisions, males (compared with females) utilized many more neural resources to make and maintain cautious decisions, indicating an important risk-related brain sexual dimorphism. The results suggest new possibilities for prevention and management of excessive, dangerous adolescent risk-taking.

Mental disorder and legal responsibility: the relevance of stages of decision making

The paper discusses the relevance of decision-making models for evaluating the impact of mental disorder on legal responsibility. A three-stage model is presented that analyzes decision making in terms of behavioral control. We argue that understanding dysfunctions in each of the three stages of decision making could provide important insights in the relation between mental disorder and legal responsibility. In particular, it is argued that generating options for action constitutes an important but largely ignored stage of the decision-making process, and that dysfunctions in this early stage might undermine the whole process of making decisions (and thus behavioral control) more strongly than dysfunctions in later stages. Lastly, we show how the presented framework could be relevant to the actual psychiatric assessment of a defendant's decision making within the context of an insanity defense.

Interdisciplinary benefits of a theory of cultural evolution centered at the group-level: the emergence of macro-neuroeconomics and social evolutionary game theory

The theoretical concepts developed in the target article, in which the author proposes a new paradigm of cultural evolution based not on the individuals' characteristics, but rather on more global collective properties described as "group-traits" (which emerge when a group of individuals exhibit both differentiation and organization), may have a broader scientific impact that transcend the boundaries of social and evolutionary psychology, paving the way for the emergence of macro-neuroeconomics and social evolutionary game theory.