Guidelines for the ethical use of neuroimages in medical testimony: report of a multidisciplinary consensus conference

Forensic neurology: a distinct subspecialty at the intersection of neurology, neuroscience and law

Neurological evidence is increasingly used in criminal cases to argue that a defendant is less responsible for their behaviour, is not competent to stand trial or should receive a reduced punishment for the crime. Unfortunately, neurologists are rarely involved in such cases despite having the expertise to help to inform these decisions in court. In this Perspective, we advocate for the development of 'forensic neurology', a subspecialty of neurology focused on using neurological clinical and scientific expertise to address legal questions for the criminal justice system. We review literature suggesting that the incidence of criminal behaviour is higher in people with certain neurological disorders than the general public and that undiagnosed neurological abnormalities are common in people who commit crimes. We discuss the need for forensic neurologists in criminal cases to provide an opinion on what neurological diagnoses are present, the resulting symptoms and ultimately whether the symptoms affect legal determinations such as criminal responsibility or competency.

Neuroethics and neurolaw in forensic neuropsychiatry: A guide for clinicians

As neuroscience technologies develop, ethical and legal questions arise regarding their use and societal impact. Neuroethics and neurolaw are growing interdisciplinary fields that address these questions. This review article presents the research agenda of both areas, examines the use and admissibility of neuroscience in expert testimony and legal settings, and discusses ethical issues related to forensic neuropsychiatrists claiming expertise in neuroscience, formulating medical opinions based on neuroscience, and considering its relevance to criminal responsibility. Forensic neuropsychiatrists should be aware of emerging neuroscientific evidence, its utility and limits in rendering diagnoses and explaining behavior, and, before seeking such evidence for legal purposes, its availability and admissibility. When testifying in matters involving neuroscientific evidence, ensuring truthfulness and balance, having sufficient and validated knowledge (including openness with confirming and disconfirming evidence), understanding standards of practice, and drawing relevant and appropriate conclusions remain important.

Diffusion tensor imaging in the courtroom: Distinction between scientific specificity and legally admissible evidence

Interest and uptake of science and medicine peer-reviewed literature by readers outside of a paper’s topical subject, field or even discipline is ever-expanding. While the application of knowledge from one field or discipline to others can stimulate innovative solutions to problems facing modern society, it is also fraught with danger for misuse. In the practice of law in the United States, academic papers are submitted to the courts as evidence in personal injury litigation from both the plaintiff (complainant) and defendant. Such transcendence of an academic publication over disciplinary boundaries is immediately met with the challenge of application by a group that inherently lacks in-depth knowledge on the scientific method, the practice of evidence-based medicine, or the publication process as a structured and internationally synthesized process involving peer review and guided by ethical standards and norms. A modern-day example of this is the ongoing conflict between the sensitivity of diffusion tensor imaging (DTI) and the legal standards for admissibility of evidence in litigation cases of mild traumatic brain injury (mTBI). In this review, we amalgamate the peer-reviewed research on DTI in mTBI with the court’s rationale underlying decisions to admit or exclude evidence of DTI abnormalities to support claims of brain injury. We found that the papers which are critical of the use of DTI in the courtroom reflect a primary misunderstanding about how diagnostic biomarkers differ legally from relevant and admissible evidence. The clinical use of DTI to identify white matter abnormalities in the brain at the chronic stage is a valid methodology both clinically as well as forensically, contributes data that may or may not corroborate the existence of white matter damage, and should be admitted into evidence in personal injury trials if supported by a clinician. We also delve into an aspect of science publication and peer review that can be manipulated by scientists and clinicians to publish an opinion piece and misrepresent it as an unbiased, evidence-based, systematic research article in court cases, the decisions of which establish precedence for future cases and have implications on future legislation that will impact the lives of every citizen and erode the integrity of science and medicine practitioners.

Mild traumatic brain injury: Is DTI ready for the courtroom?

Important advances in neuroscience and neuroimaging have revolutionized our understanding of the human brain. Many of these advances provide new evidence regarding compensable injuries that have been used to support changes in legal policy. For example, we now know that regions of the brain involved in decision making continue to develop into the mid-20s, and this information weighs heavily in determining that execution or automatic sentence of life without the possibility of parole for someone younger than 18 years old, at the time of the crime, violates the 8th Amendment prohibition against "cruel and unusual punishment." The probative value of other testimony regarding neuroimaging, however, is less clear, particularly for mild traumatic brain injury (mTBI), also known as concussion. There is nonetheless some evidence that new imaging technologies, most notably diffusion tensor imaging (DTI), may be useful in detecting mTBI. More specifically, DTI is sensitive to detecting diffuse axonal brain injuries in white matter, the most common brain injury in mTBI. DTI is, in fact, the most promising technique available today for such injuries and it is beginning to be used clinically, although it remains largely within the purview of research. Its probative value is also not clear as it may be both prejudicial and misleading given that standardization is not yet established for use in either the clinic or the courtroom, and thus it may be premature for use in either. There are also concerns with the methods and analyses that have been used to provide quantitative evidence in legal cases. It is within this context that we provide a commentary on the use of neuroimaging in the courtroom, most particularly DTI, and the admissibility of evidence, as well as the definition and role of expert testimony. While there is a great deal of evidence demonstrating cognitive impairments in attention, processing speed, memory, and concentration from neuropsychological testing following mTBI, we focus here on the more recent introduction of DTI imaging in the courtroom. We also review definitions of mTBI followed by admissibility standards for scientific evidence in the courtroom, including Daubert criteria and two subsequent cases that comprise the so-called Daubert trilogy rulings on the admissibility of expert testimony. This is followed by a brief review of neuroimaging techniques available today, the latter with an emphasis on DTI and its application to mTBI. We then review some of the court rulings on the use of DTI. We end by highlighting the importance of neuroimaging in providing a new window on the brain, while cautioning against the premature use of new advances in imaging in the courtroom before standards are established in the clinical arena, which are informed by research. We also discuss further what is needed to reach a tipping point where such advances will provide important and meaningful data with respect to their probative value.

Traumatic shaking: The role of the triad in medical investigations of suspected traumatic shaking

The Swedish Agency for Health Technology Assessment and Assesment of Social Services (SBU) is an independent national authority, tasked by the government with assessing methods used in health, medical and dental services and social service interventions from a broad perspective, covering medical, economic, ethical and social aspects. The language in SBU's reports are adjusted to a wide audience. SBU's Board of Directors has approved the conclusions in this report. The systematic review showed the following graded results: There is limited scientific evidence that the triad (Three components of a whole. The triad associated with SBS usually comprises subdural haematoma, retinal haemorrhages and encephalopathy.) and therefore, its components can be associated with traumatic shaking (low-quality evidence). There is insufficient scientific evidence on which to assess the diagnostic accuracy of the triad in identifying traumatic shaking (very low-quality evidence). Limited scientific evidence (low-quality evidence) represents a combined assessment of studies of high or moderate quality which disclose factors that markedly weaken the evidence. It is important to note that limited scientific evidence for the reliability of a method or an effect does not imply complete lack of scientific support. Insufficient scientific evidence (very low-quality evidence) represents either a lack of studies or situations when available studies are of low quality or show contradictory results. Evaluation of the evidence was not based on formal grading of the evidence according to GRADE but on an evaluation of the total scientific basis.

Medicolegal Issues in Traumatic Brain Injury

The role of the physiatrist in provision of medicolegal expert testimony in cases involving traumatic brain injury is challenging and complex. This article provides an overview of how such work should be conducted from a practical perspective including discussion of ethical, legal, medical, and business aspects of such activities. Additionally, pointers are provided with regards to how information including preinjury, injury, and postinjury (including neuroimaging and neuropsychological data) should be considered and integrated into medicolegal opinions and testimony.

Dementia, Decision Making, and Capacity

After participating in this activity, learners should be better able to:• Assess the neuropsychological literature on decision making and the medical and legal assessment of capacity in patients with dementia• Identify the limitations of integrating findings from decision-making research into capacity assessments for patients with dementia ABSTRACT: Medical and legal professionals face the challenge of assessing capacity and competency to make medical, legal, and financial decisions in dementia patients with impaired decision making. While such assessments have classically focused on the capacity for complex reasoning and executive functions, research in decision making has revealed that motivational and metacognitive processes are also important. We first briefly review the neuropsychological literature on decision making and on the medical and legal assessment of capacity. Next, we discuss the limitations of integrating findings from decision-making research into capacity assessments, including the group-to-individual inference problem, the unclear role of neuroimaging in capacity assessments, and the lack of capacity measures that integrate important facets of decision making. Finally, we present several case examples where we attempt to demonstrate the potential benefits and important limitations of using decision-making research to aid in capacity determinations.

Minimising bias in the forensic evaluation of suspicious paediatric injury

In the rules of evidence in all legal jurisdictions, medical experts are required to maintain objectivity when providing opinions. When interpreting medical evidence, doctors must recognise, acknowledge and manage uncertainties to ensure their evidence is reliable to legal decision-makers. Even in the forensic sciences such as DNA analysis, implicit bias has been shown to influence how results are interpreted from cognitive and contextual biases unconsciously operating. In cases involving allegations of child abuse there has been significant exposure in the media, popular magazines, legal journals and in the published medical literature debating the reliability of medical evidence given in these proceedings. In these cases judges have historically been critical of experts they perceived had sacrificed objectivity for advocacy by having an investment in a 'side'. This paper firstly discusses the issue of bias then describes types of cognitive biases identified from psychological research applied to forensic evidence including adversarial bias, context bias, confirmation bias and explains how terminology can influence the communication of opinion. It follows with previously published guidelines of how to reduce the risk of bias compromising objectivity in forensic practices then concludes with my own recommendations of practices that can be used by child protection paediatricians and within an organisation when conducting forensic evaluations of suspicious childhood injury to improve objectivity in formulation of opinion evidence.

Advocacy opportunities for pediatricians caring for maltreated children

Pediatricians are advocates for children. It is one of the central elements of the job description. In the course of their work, pediatricians have many opportunities to advocate for abused and neglected children. The most effective form of advocacy that most pediatricians will engage in with regard to child abuse and neglect is by being highly skilled doctors who provide excellent clinical care to children and families, knowing how to recognize child abuse and what to do when they encounter it, and being familiar with the resources of their communities.

Expert witnesses: neuroradiologists' perspectives

PURPOSE

Physician malpractice expert witnesses may testify on behalf of physicians or patients. The goal of the study was to assess the experience of neuroradiologists as expert witnesses and their attitudes about such testimony.

METHODS

A survey was distributed to the 4,357 e-mail addresses of the members of the American Society of Neuroradiology with questions about expert witnesses.

RESULTS

The survey found that 1,301 of 4,357 answered at least one survey question. Five hundred twenty seven of 1194 (44.1%) of respondents had experience as expert witnesses. Most offer to testify on behalf of both plaintiffs and defendant physicians (324 of 465; 69.7%). Some do not testify/review cases on behalf of a plaintiff because they do not think that physicians should testify against other physicians, even if negligence is a factor (40 of 198; 20.2%). This reason was the most common for not agreeing to be an expert witness for a plaintiff, for all age groups. Of those expressing an opinion, 312 of 874 (35.7%) of neuroradiologists feel negatively about expert witnesses, whereas 434 of 874 (49.6%) say they serve a purpose, and 105 of 874 (12.0%) feel they should be commended for their work on behalf of the justice system.

CONCLUSIONS

Of neuroradiologists answering the survey, nearly half have served as expert witnesses, and most feel comfortable testifying for both plaintiffs and defendants. Substantive negative perceptions (35.7%) of expert witnesses were found.