Dr. Doriana Chialant is a Forensic Neuropsychologist with 20 years of practice in this field. She is currently a Clinical Associate in Psychology in the Department of Psychiatry at Harvard Medical School, and a member of the American Psychological Association, Division 40 (Neuropsychology), the Massachusetts Neuropsychological Society, the Boston Neurology and Psychiatry Association, the Associazione Alunni, Ricercatori e Professori della Scuola Normale Superiore di Pisa, and the National Register of Psychology.
Dr. Chialant, what exactly is forensic neuropsychology?
Forensic neuropsychology focuses on where a person accused of a specific crime behaved the way he or she did as a result of assessable and measurable brain damage.
The field is a relatively new and rapidly evolving subspecialty of clinical neuropsychology the scientific study of human behavior as it relates to normal and abnormal functioning of the central nervous system but applies these principles and practices to legal decision- making. Such information is key in deciding a central forensic question: not just whether a patient has a specific dysfunction, but whether that dysfunction is directly related to the legal issue at hand. Neuropsychologists use methods that have been scientifically validated through theoretical models and statistical standardization, and can distinguish various brain conditions from each other as well as from normal variation. For example, the methods must be able to determine whether dysfunction is the result of a neurological condition or a non- neurological (psychiatric or psychological/environmental) or factitious disorder. In addition, the methods must be able to establish a relationship between a dysfunction and its resulting behavioral manifestations and, finally, a correlation between such dysfunctional behaviors and the behaviors under consideration in a court of law.
Neuropsychology is a young sub-discipline of the field of neurology.
It was spawned by the practices of behavioral neurologists and neuropsychiatrists from the mid-1800s to the mid-1900s, and was associated with significant advances in the identification of conditions such as the aphasias (Broca, Wernicke), the agnosias (Lissauer), the apraxias (Liepmann), and the alexias (Déjerine)—research that was bolstered by autopsy- confirmed anatomical correlations. Only in 1962, with Luria’s publication of his seminal work—Higher Cortical Functions in Man—did the field of neuropsychology more formally come into existence. Luria, a Russian neurologist, developed an original battery of neuropsychological tests as part of his clinical work with brain- injured victims of World War II.
From these roots, the study of brain-behavior relationships—the hallmark of neuropsychology—was initially based on patterns of impaired and preserved cognitive functioning and behaviors in individuals with focal brain damage, often caused by injury (the so-called classical lesion-based approach).
More recently, the field expanded to address abnormal cognition and behavior in terms of dysfunctional processing of information, thus capturing dysfunctions in psychiatric disorders.
In the forensic setting, neuropsychology was first involved in civil litigation, where head trauma is often an issue (typically in motor vehicle accidents). In the early 1990s, criminal courts became aware of the unique contribution that neuropsychological assessments can make when central nervous system (CNS) pathology is considered in criminal proceedings. Neuropsychologists can contribute their understanding of neuroanatomy, neuropathology, and objective functional assessment to address specific questions of the court.
Neuropsychology has made substantial contributions to criminal proceedings in the detection of feigned or exaggerated cognitive deficits associated with secondary gains (e.g. being awarded larger sums of money or getting out of jail). Its contribution also helped educate courts about how cognitive difficulties present after particular injuries or illnesses. Today, courts are beginning to ask evaluators specific questions about the effect of amnesia and the possibility of feigning memory loss or general intellectual compromise.
When deprivation of liberty is at stake—as is typically the case in criminal proceedings—due process requires that the defendant be able to understand the process to a reasonable degree and be able to assist counsel in his or her own defense. Meeting this standard, which is known as competency to stand trial, strongly implies certain cognitive capacities. With few exceptions, cognition forms the basis of most mental health criminal standards. In court, common questions not only address a defendant’s competency to participate in legal proceedings, but also his or her competency to waive the right to an attorney, to plead guilty, or to waive an appeal.
Beyond questions of competency, issues of legal sanity or criminal responsibility arise as attorneys, judges, and juries grapple with how much a defendant’s brain pathology contributed to the criminal behavior. Related to sanity is the issue of diminished capacity, in which a defendant’s neuropathology may not be exculpatory, but may have contributed to the criminal behavior. Courts often take such factors into account when considering sentencing options.
What kind of professional training is required to enter this field?
Practitioners of forensic neuropsychology are trained as clinical neuropsychologists. Subsequently, they specialize in the forensic application of their knowledge and skills. Because the field of forensic neuropsychology is new, there were until recently no formal training programs, licensure requirements, or professional organizations devoted specifically to the specialty. Even today, there are very few textbooks or journals dedicated to the field.
Moreover, there is no formal process for qualifying for the title of “forensic neuropsychologist.” Rather, the title is typically claimed, in most states, by a practitioner who is certified as a licensed psychologist and who possesses the additional training and experience necessary to qualify as a neuropsychologist. At a minimum, one’s training, background, and knowledge must meet the requirements for licensure in one’s state and the ethical guidelines for practice of the American Psychological Association. The National Academy of Neuropsychology has proposed a specific definition of a clinical neuropsychologist. A forensic neuropsychologist will further have training and experience in the legal arena—although, to date, the nature and type of this education has not been specified.
The field of forensic neuropsychology has grown significantly over the past 20 years.
Among clinical neuropsychologists, referrals from attorneys are roughly equal in number to referrals from neurosurgeons, psychologists, general physicians, and rehabilitation specialists; only neurology and psychiatry are more important referral sources than attorneys. Other evidence for the central role of forensic neuropsychology is the increasing number of presentations on this topic at national meetings, as well as increasing numbers of peer- reviewed publications. Recently, the American Board of Professional Neuropsychology (ABPN) added a subspecialty in forensic neuropsychology to its certifying process. Forensic Neuropsychology’s growth reflects the growth of clinical neuropsychology, which, over the past 40 years, has firmly established principles underlying the relationship between brain and behavior, as well as valid and reliable methods for measuring such relationships.
What does a forensic neuropsychologist do?
While a forensic neuropsychological evaluation is essentially the same as a clinical neuropsychological evaluation, the goal is quite different. Clinically, the evaluation is structured to reach a diagnosis in order to inform treatment and improve the patient’s quality of life. But forensically, the goal is to reach a diagnosis in order to determine whether and how the client’s dysfunction matches the observed behaviors that led to criminal charges. Here, the neuropsychologist’s relationship with the client is not that of doctor-patient, but rather that of an expert witness. Indeed, the neuropsychologist’s findings may or may not be useful in the client’s defense. Once a forensic neuropsychological report is completed, its findings become part of the legal process, regardless of whether they can be used in the client’s defense. The neuropsychologist, while paid to perform an evaluation, is not asked to offer a specific opinion; rather, he or she renders a scientifically-based opinion which is above parties. As an expert witness, the neuropsychologist may be called to testify for opposing counsel, or his or her findings may come to be used by opposing counsel in their prosecution of the defendant.
In a typical forensic neuropsychological evaluation, the practitioner is contacted by a lawyer on the case. At this point, the pivotal legal question is reviewed and it is determined whether the neuropsychologist’s expertise is a good match for the question under consideration. Prior to meeting with the litigant (in civil cases) or the defendant (in criminal cases), the neuropsychologist reviews available background records. These may include records pertaining to the developmental, educational, occupational, medical, psychiatric, and legal history of the client. The neuropsychologist then meets with the client to perform an extensive assessment. In this meeting, the neuropsychologist reviews the process of the evaluation and the standards and limits of confidentiality. The goal is to make sure that the client understands the nature of the neuropsychologist relationship as an expert witness, and that the client is participating freely in the evaluation.
The evaluation includes a relatively lengthy clinical interview (typically a couple of hours), during which information about the individual is gathered and often checked for consistency with information provided in background records (this offers the opportunity to assess whether the client is able or willing to provide reliable information, or to correct record inaccuracies). The interview further gathers information about the client’s mental status at the time of the evaluation. (Is there significant anxiety, depression, or cognitive confusion or clouding? How is the client feeling on the day of the evaluation? Does the client know where he/she is or is otherwise oriented to the present circumstances?) The evaluation also includes the client’s perspective on his/her history of psychological, psychiatric, physical/medical, and cognitive/learning problems.
At this point, the neuropsychologist begins to apply numerous neuropsychological tests, which measure a broad variety of cognitive functions. These tests assess attention and concentration, learning and memory for both language-based and visually-based information, language skills, visual-spatial and constructional skills. Also assessed are so-called higher executive functions: the capacity to multitask, to learn from feedback, to act flexibly in response to changes in the environment or task demands, to extrapolate abstract patterns from available data, to solve problems that require abstract reasoning, and to plan and consistently execute a plan of action. The client’s level of effort and motivation to respond in a straightforward way are also measured, to determine whether there is a conscious or unconscious bias in the way the client is responding to questions and tests. Often, measures of emotional, mood and personality functioning are also administered, to determine how such factors interact with the cognitive pattern of strengths and weaknesses of each individual and contribute to answering the forensic question at hand.
The administration of such a battery of neuropsychological tests may take from 5-7 hours to several days to complete. Upon completion of this lengthy and detailed process, all the data collected is analyzed using available standardized scoring systems. It is then compared with relevant statistical samples and correlated with the client’s specific developmental, educational/occupational, and medical/psychiatric history to reach a diagnostic impression. At the end of this process, the neuropsychologist writes a report which presents all the data collected and processes applied, as well as a summary of all the documents reviewed and information gathered from the client (and at times from collateral sources such as family members or co-workers).
The report offers the neuropsychologist’s interpretation of the findings, addressing the questions of 1) Is there measurable brain damage (or psychiatric disorder or both); 2) Are there well-established functional and behavioral manifestations of such damage or disorder; and 3) Do such well established manifestations correlate with the client’s observed behaviors during the evaluation as well as at the time of the alleged offense?
Dr. Chialant, what drew you to this field?
I have always enjoyed solving puzzles, and I was drawn to this field by the complexity of its questions. Fascinated by the workings of the brain, I studied neuroscience and worked in research with individuals with brain damage. In relating to these clients, I became more deeply aware of the terrible difficulties people face when struck by the onset of a neurological disorder. I was doing work on language deficits and was moved by individuals who had lost the capacity to communicate and struggled to interact with family members or otherwise with their environment. I found myself in a position where I could understand their deficits and help them communicate better. I developed a desire to become a clinician, and eventually became a licensed psychologist with a specialization in neuropsychology. I eventually had the opportunity to collaborate with a supervisor who did some work in forensic neuropsychology and I was immediately hooked. The complexity of the cases intrigued me, and finding a solution to the puzzle at hand kept me motivated.
Can you describe some of the most interesting or intriguing or surprising assignments that you have worked on? How did you handle them?
For me, the most common assignments have been to aid courts in sentencing. These cases typically involve robberies or violent assaults while the perpetrator was under the influence of alcohol or drugs, and where there appears to be a history of significant developmental disorder or head trauma or other neurologic disorder. Most intriguing are often the murder cases. Most of these cases have had a certain degree of the unexpected, either in the sequence of events that led the person to act as he or she did, or in terms of something that touched me emotionally in ways I had not anticipated. Here are several cases that changed me a bit, both professionally and personally.
One is the case of a man who had undiagnosed—and therefore untreated—bipolar disorder. He had started using heavy drugs, which provoked his first full-blown manic episode. He was living with a girlfriend, and the relationship was quickly collapsing under the blows of his irritability and loss of temper for no apparent reason. One night, alone in the house, music blasting, he started throwing his furniture into the yard. He then started taking off his clothes. The neighbors yelled at him to stop, he yelled back louder. When the police were called, he took off in his car, in which he had a gun. He began shooting out of the window as he drove. He hit two young men who were sitting on a fence. He then threw away the gun, ran out of the car, and headed into backyards, stripping off whatever garments he still had on. The police caught up with him and made an arrest. One victim of the shooting suffered permanent severe damage, the other recovered relatively quickly from the wounds.
When I met the defendant in jail about two years after the events, two things became apparent early on in the evaluation. First, he clearly suffered from bipolar disorder—an opinion shared by the jail psychiatrist, who had started the man on medications prior to the evaluation. Second, the man was eager to tell his story. He talked about the events rather freely, as if he was experiencing them from a state of high emotion. He was quite eager to relate how he had succumbed to drug use and how his bipolar disorder had destroyed his life. He barely remembered the two men he had shot, and noted that though he had not inquired as to their health afterwards, he was relieved that neither had died. He knew that one of the men had suffered permanent bodily injuries, but felt that the victim was exaggerating his symptoms to see if he could get something out of it.
The interview reached emotional intensity when the defendant talked about his childhood and disclosed a history of sexual abuse. At that point, he became hesitant in his speech and pensive. He subsequently disclosed having molested his own daughter when she was about 14 years old (about 20 years earlier). But rather than express distress about his own wrongdoing, he talked about how clearly that act had stemmed from his own history of abuse. Unlike the recollection of his own abuse, he now talked from his head and not from his heart.
Throughout the interview, the man’s perspective remained anchored in his own point of view. He felt and expressed a sense of being a victim of his illness, and seemed to seek understanding and even appreciation for what he had gone through. I did not see any trace of remorse or even concern for what he had done to others. To top this off, once cognitive testing began, he became clearly involved with the quality of his performance. He enjoyed the challenge of the tests and wanted to excel. He had read about I.Q. measurements and other tests, and was sure he was smarter than anyone else I had ever tested. Not only did he ask whether he could have the results of his tests (which he could not) but he also wanted to know if I could write a letter in support of his application to MENSA.
This case took me by surprise because it was the first time I had to write on behalf of someone who, although a victim himself, had no compassion for the people he had hurt: his daughter and the two men. From a legal point of view, he had shot two people while in the throws of mania, and therefore faced proceedings for the charges in question. However when talking about his upbringing, he felt a need to unburden himself by confessing to having molested his daughter and showing no remorse or concern for either action. I did not want to help release this man back into society, but I had to. This was the first time I had to truly confront myself with what, at that time, felt like a question of moral integrity: How can I do the work I am ethically called to do while feeling such a struggle within?
Another case centered on a young man, just turned eighteen, who was the mildly mentally-retarded and psychiatrically-ill father of a newborn son. His history was difficult to establish because he was not able to provide a linear story or any significant biographical detail, and because there were no background records available. He had dropped out of school at a very young age, had been estranged from his family of origin for a long time, and had no history of employment or a permanent address. Mostly, he seemed to have lived on the streets.
Because of his circumstances, he had never been identified as mentally retarded, and the department of mental retardation was never involved. Likewise, his mental illness was never diagnosed and he never received any services or treatments. Somehow, the state’s department of social and family services had also failed to become involved, in spite of the man’s early history of running away from home and falling into drug use and small dealing. He had slipped from one crack to another.
The man continued on in his young life, dealing drugs and getting caught for it. At some point, he became involved with a young woman a few years older than he. They had unprotected sex and she became pregnant. He moved in with her. She quickly became fed up with him. He was no good in dealing and was not skilled at anything else, either. He totally depended on her, while she now had two children and a part-time, poorly-paying job. One day, she went to work and left the young man to babysit. Their son was just a few months old—a screaming machine. The young man closed the door to the child’s room, hoping to muffle the screeching. He turned up the volume on the TV. The child screamed louder. The young man started screaming himself, holding his head in between his hands. He finally ran into the baby’s room, grabbed the infant, and shook him up and down. The baby’s head hit the crib’s post, and the child finally became quiet. Believing the child was now asleep, the young man returned to his TV. A few hours later, the mother arrived home. She found the baby blue, cold, and stiff.
Meeting with this young man felt utterly “strange.” He had a slim, graceful build and seemed younger than his age—a child himself. He looked up at me as if I were a rescue line. In his mind, perhaps someone had finally come to take him home, perhaps there was going to be milk and cookies at the end of this story. His demeanor and physical features were at odds with the unwelcoming and sterile jail room, the metallic noises around us, the cold chairs. Above all, the young man’s features were at odds with the task at hand: preparing for his criminal trial. How does a child understand the enormity of his actions? What awareness did he have of his actions? Had he reached for the baby with the intention of quieting him or of killing him? Was he capable of well-formed intentions? Or had he acted in a knee-jerk fashion, not caring for the child but not intending harm either? Eventually, it became clear to me that he had little understanding of the consequences of his actions and had not acted with malice. In one single reactive gesture he had permanently harmed two children: his baby and himself.
A third case that I have returned to many times in my mind was that of a man who had allegedly raped a woman repeatedly over the course of one night and claimed to have no memory of the events. He said that he had been hit on the head several times while living on the streets, and claimed to have memory deficits. In this instance, I did not end up having to write on the man’s behalf, because he had “faked bad” on all measures of malingering, symptom exaggeration, and memory. In fact, he was the most obvious case of symptom creation that I have ever encountered in my forensic work. Here, the dilemma was of a totally different nature. I sat with the man for about seven hours in a small interview room, just big enough for a small table and two chairs. Unlike most other evaluations, safety measures required the door to the room to remain open. A guard sat at a far end of a large room with several inmates visiting with their attorneys. This was a high-security prison, and most inmates did not have the privilege of a separate room for visits. The defendant and I already stood out for having been granted a separate space: he, after all, needed to be able to concentrate and be removed from potential distractions. The jail had granted that special status, one which gave him comfort but gave me discomfort.
Several factors made the situation uncomfortable. First of all, although I sat closer to the open door, I was separated from him only by a small round table. Our knees almost touched. His feet did touch mine on several occasions, as he adjusted his posture on the chair throughout the day. Unlike other inmates’ visitors, I spent several hours with him, which is an extraordinary amount of attention for men like him, and I was the only woman in that setting throughout the day. None of these conditions was particularly different from those in my other evaluations. What made the situation different was the nature of his crime, the fact that I was a woman, and the demeanor of this man throughout the day. From the very beginning, this man seemed to be gloating. I felt that he was pleasantly surprised to find out that his defense attorney had retained a woman.
It became clear during the evaluation that he held a deep-rooted belief that women are inferior or can be easily overpowered—and he did not even try to hide this belief. It seemed clear to me that he thought he could outsmart me. He approached the testing situation with great arrogance: He did not follow my directions or learn from feedback (which would have helped him perform in more reasonable ways on the tests, and potentially result in a valid and therefore potentially useful protocol), and he tended to talk over me and act as if he was in charge. He never appeared to recognize my authority as an evaluator and there was never any deference in his attitude. He was so self-assured that he was convinced he would win his case. He also spoke of the woman that had been raped as a liar and a person of little worth. He seemed to draw malignant pleasure from the misfortune of this woman.
Although this man did not outsmart me or the tests, did not win his case, and had little to gloat about in the end, he was able to make me intensely uncomfortable throughout the evaluation and afterwards. I left the jail as if running away from peril. I felt dirty and exposed, and I felt as if I had colluded with him in a sordid crime. What had happened that day? At the time, I realized that I had been overwhelmed by the visit, that I felt unsettled and was mad at myself for having let this happen. I rationalized it with the fact that he was a rapist, that he was disrespectful, and that he acted with arrogance in spite of the fact that he was in jail and not likely to get out. But these rationalizations merely felt like a rephrasing of what was clear intellectually: that this was a rape case, that the man’s claim of total amnesia during the time of his actions was likely bogus, and that such a black-and-white self-defense posture could only be held with arrogance.
What I did not realize was the impact of one person’s malignant energy on another. In retrospect, I now see clearly that during the evaluation, as in any close exchange between two individuals, at least two different conversations were taking place simultaneously. One was the pragmatic and mind-driven conversation of interviewing, test administration, response patterns, etc. The other was the emotional and energetic dialogue. I felt as if I had been assaulted and invaded by this man. I felt as if I had tried to hold myself together and keep from running out of the room. Looking back, I see that I had failed to realize and acknowledge and therefore prepare for this kind of frightening type of nonverbal communication. Put simply, I had left myself exposed to this man’s predatorial energy.
A fourth case what that of a man in his 90s, who had been married to his wife for more than 60 years. They had lived harmoniously together, raised their children together, and had worked as tailors together for over 40 years. This gentleman had been affected by diabetes most of his life and eventually succumbed to dementia. During his illness, he had become unreliable about taking his diabetes medications and had begun experiencing extreme sugar levels, accompanied by delirium. At the time, he still lived with his wife, who was very dependent on him. One day while the couple was in the kitchen he took a large kitchen knife and stabbed his wife nine times, and himself three times. Both were rushed to the emergency room, barely alive. Both survived and physically recovered, although his wife was left with permanent damage to a lung. While in the hospital, the man kept calling his wife’s name, wanting her next to him. He was delirious and confused, and his speech poorly barely intelligible Once medically stable, he was transferred to a jail. He was the oldest inmate in the facility and the most infirm. The prosecution maintained that the defendant was pretending not to remember, the defense that he was demented and not responsible for his action. Complicating the case was the fact that the couple was Italian and neither spoke much English. Attempts at reconstructing the events had resulted in more confusion.
This is when I came into the picture. Prior to meeting the man, I was carefully warned that he was irritable and belligerent and had a number of times been placed in restraint on his geriatric chair. Upon meeting him, it was immediately clear that I was in the presence of a demented man who was struggling with missing his wife, with having no understanding of where he was and why, and with feeling profoundly isolated in his inability to communicate with anyone around him. He spoke in his Italian dialect, his speech fragmented and disorganized by his dementia and confusion. He would become frustrated at the failure of people around him to respond to him, and would grow more and more demanding of attention, care, food, a blanket. He sobbed inconsolably about the absence of his wife. Having lost the cognitive capacity to reason through the bleak facts of his existence, he was prey to despair. She was not there, and that’s all he knew. She was not there this instant and then the next and the next. I witnessed an agony that could not be stopped. As I worked with him, it became clear that prior to these events, he had become obsessed with the idea of dying and abandoning his wife, whom he had cared for his whole life. He was worried she could not take care of herself. Who would, then, if he could not? It seemed to me that he had suddenly resolved to kill her and himself to avoid the inevitable abandonment. He was able to offer fragments of the events, but mostly expressed his worry about his wife. He recalled seeing blood and that she was taken away. He could not make sense of her absence.
I spent eight hours with this man. What I most strongly recall is the profound sense of protectiveness I experienced toward him. I wanted to stanch his emotional gushing, and if that could not be done—and it could not—I wanted to at least ensure that he received a blanket when he felt cold, a holding hand when he wobbled on his feet, and that he could be eased a bit out of his isolation. Most of all, I wished he could be placed in a residence other than a jail. He belonged in a nursing home—but none existed that could take on the responsibility of caring for someone with his history. Personally, I did not experience an ounce of aggression in this man. I felt his pain and his vulnerability. I witnessed his physical frailty and mental decay.
Upon meeting me he had looked at me suspiciously. After a few hours sitting together, during which our conversation consisted of a few questions asked repeatedly by me in the hope of eliciting a consistent answer, and of small gestures of kindness on my part, such as ensuring that he was sitting comfortably or calling someone to assist him with a blanket or a snack, I had become his whole world. This is often the case with the limited attention span of dementia, where the present is the only temporal dimension. When the lunch break arrived, he became afraid of being separated, and I agreed to walk him to the lunchroom. I held his hand under my arm as we walked and talked to him as I would have to a dear friend or sick child. I left him to his lunch once the distraction in the room had diverted his attention away from me. When I met him again after lunch, he had no recollection of who I was. The initial look of suspicion returned to his face.
I wrote a strong evaluation on his behalf. Although he won the case and was found not guilty by reason of insanity, the verdict did not benefit him none, as there was no place for him to go. The last I heard of him, a bit more than a year later, he was still where I had found him—likely in the same distress, or perhaps eased by the relenting progression of his illness into some deeper oblivion.
How were you able to make a difference in people’s lives or in the carrying out of justice?
This is a tough question to answer because often, even when justice feels done in a case, this does not necessarily translate into an improvement in the circumstances of the client. As a clinician, this is at times hard to accept. The most obvious way in which my work has made a difference in the lives of the people I have worked with is in terms of judicial sentences. My evaluations may lead to a reduction in years of prison, a placement in a different setting (a hospital-jail rather than a regular jail), or even a dismissal of charges on the basis of being “not guilty by reason of mental deficit or defect.”
The most interesting cases are the latter. The lay person often believes that “not guilty” means a perpetrator goes home free. This is usually not the case. More often, the individual is sent to a treatment facility and is only sent “home free” once treated. The duration of this treatment is often undetermined. For example, someone with schizophrenia may never be treated sufficiently to return home. Someone who suffered a significant stroke that cause extensive brain damage to the areas that control behavior, or someone who suffers from a type of dementia that has predominantly behavioral manifestations, may never go home. These individuals will remain in treatment facilities for the rest of their lives. Rehabilitation programs are scarce and not as state-of-the-art as one may hope. However, often the fact that an individual’s behavior, as atrocious as it may be, has come to be viewed as the result of their brain damage or defect rather than as the outcome of a personal choice, is in itself a great relief to many perpetrators and their families. The stigma is removed and defendants and their families can regain a deeper sense of integration in their lives, even amidst changed circumstances.
For example, I have had cases of individuals who, late in their lives, began to exhibit changes in personality and behaviors, which eventually resulted in them killing a family member. As a result of my work, they were properly diagnosed with specific types of dementia that initially manifest with dramatic changes in personality and behaviors. While the perpetrators themselves may or may not fully understand what the diagnosis means (because their cognition is also already impaired), their family members are profoundly grateful and have an easier time coming to terms with the events and retaining a reasonable degree of relationship with the perpetrator.
Another example is that of someone who has committed a crime because he or she was in the throes of a first episode of severe mental illness. This often occurs in relatively young individuals who have their first manic break associated with undiagnosed bipolar disorder, or their first psychotic break associated with undiagnosed schizophrenia. In these cases, once the individual is diagnosed, pharmacological treatment can begin, which can significantly restore a person’s cognitive and behavioral capacity. These individuals may indeed return home free, as long as they remain compliant with medical treatments.
Sometimes the outcomes are more bitter than sweet. One may diagnose an individual and obtain an acquittal, but the individual may no longer be eligible for appropriate treatments. For example, individuals who are diagnosed with mental retardation late in life may not be eligible for state programs or be able to benefit from such programs. While these individuals may be discharged, they have nowhere to go. They end up back on the streets and are bound to engage again in the only behaviors they know—such as small robberies or low-level drug dealing. They quickly become prey again to manipulative figures in their lives who “help” them return to such unlawful practices. Similarly, women may return to abusive relationships with a pimp or with “boyfriends,” whom they perceive as protective figures, and who often are the only people they have in their lives.
What to do in these cases? This is where a practitioner has to believe in the judicial process, maintain a professional attitude, and see the legal case through its course, even though the outcome yields no improvement in the perpetrator’s life. Ironically, in these cases, a jail stay may be a better outcome, because the individual would have had a roof over his or her head and would not have suffered further abuse on the streets. The problem is that regular jails are not suited for people which such degrees of disability. They become vulnerable to manipulative or abusive figures in the jails are well, and may end up becoming victims of sexual or physical violence. What is the answer? In my opinion, as a society, we need to create specialized housing for such damaged individuals, where they can be monitored and treated and maintained safely.
Dr. Chialant, how would you like to see the role of forensic neuropsychology expanded?
In an ideal world, the role of the expert witness in general, and that of the forensic neuropsychologist in particular, would become more educational to the courts and less “pro parte.” Ideally, a panel of forensic experts would meet to discuss their findings and points of view in order to reach an understanding of what happened and why. This would represent a collaborative approach to reaching a shared “truth” about the case rather than an adversarial process of litigation. The common conclusions of the panel would then be shared with the judge and the jury so that they could make an informed decision about guilt and associated sentences.
In the meantime, a more reachable goal would be to consistently use neuropsychologist experts in legal proceedings. At the moment, whether a neuropsychologist expert is going to be called to participate in a case remains almost entirely in the hands of the attorneys on the case. Public defense attorneys are often overburdened and thus may pay insufficient attention to their clients’ presentation to detect the signs that should trigger a request for a neuropsychologist expert. Here, too, what is needed is an educational program for the courts that employs neuropsychologists and other types of experts to inform lawyers during their legal training, as well as an effort to make high-quality neuropsychological evaluations required in specific circumstances.
A change in the language of the courts, and more specifically in the laws, would also be beneficial. For example, today, we still say “not-guilty by reason of mental deficit or defect.” I would love to see the word “mental” replaced with the word “brain.” This would help sustain a cultural change wherein individuals who work in the courts become accustomed to thinking about perpetrators’ behaviors in terms of biology rather than of personal responsibility or personal choice—a Galilean shift, to be sure.
If people want to enter this unique field, what advice do you give them?
I advise people to find a supervisor who does this type of work and ask to assist in a few forensic cases. This is not a specialty suited for everyone. Jail settings can be harsh. The conditions of the testing day can be quite trying—once the evaluations has started, the neuropsychologist and the inmate alike cannot leave the room for any reason, lest the visit is deemed to be over. Typically, one is not allowed to use the bathroom for the seven- to-eight -hour duration of the visit. Often, no food is allowed in the evaluation room; in about half of the cases in which I participated, water was not allowed either. On occasions when one is called to testify in court, one has to ask oneself whether one can endure the harsh counter-questioning by opposing counsel, which quite often involves a strategic assault on the neuropsychologist’s ego and whether one can endure the stress of the situation. This sometimes involves a full day- in court; sometimes hours on the stand; sometimes lengthy rescheduling at the last minute. It may also entail changes in legal strategies that require more work or last- minute modifications and research, as well as questions that involve leading the expert to testify on topics that may or may not fall within his or her range of expertise.
Beyond the practical challenges of the work, one has to ask oneself whether the overall meaning of the role one is planning to take on—often involving being part of a defense team of individuals who have committed serious and gruesome crimes—is something one can reconcile with one’s personal ethics. One has to allow the concept of “justice for all” to seep deep into one’s bones. As a neuropsychologist, one has to allow the concept of “brain damage and behavioral relationship” to become second nature, so that one works without bias and maintaining a scientific approach. All this must be balanced with the capacity to relate in a human way with a client, so that true collaboration can be sustained during the evaluation process.
Female neuropsychologists must ask themselves whether they feel ready or able to work with primarily male offenders, and what type of offenders they feel they can honestly and without bias evaluate. Crimes involving sexual offenders and predators are themselves a subspecialty of the forensic neuropsychology subspecialty, and female practitioners may or may not choose to work in this domain. Crimes involving impulsive killers and serial killers are another subspecialty. Female neuropsychologists who want to specialize in working with women must ask themselves whether they can work with mothers who have killed their children or with women who have suffered profound abuse.
As one can see, this work requires deep-rooted centeredness and emotional stability. One must actively try this work in order to answer the question: “Am I ready?” If the answer is yes, it will prove to be a rewarding area of practice, which promises a continued degree of intellectual stimulation, professional growth, and personal discovery.
Is there anything else to add about the topic of forensic neuropsychology?
I would like to highlight two important points:
The first is how I have come to understand the work from an ethical point of view. What does it mean for me to assist in the defense of these individuals merely on the basis of scientific test findings and regardless of the “moral beauty” of the situation or events? How do I understand my professional role in the large scheme of things?
The cases I have discussed here are very diverse in their moral implications. Many readers will relatively easily feel a measure of compassion for the old Italian man and think that it was right for me to assist in his defense. Few will feel compassion for the bipolar man or for the baby killer and may wonder whether it was appropriate to assist in such types of defenses. Most may feel that I was lucky I did not have to participate in the defense of the rapist.
But what distinguishes these cases from each other? Certainly not the outcome of the perpetrators’ actions (someone dies or gets severely hurt), but rather what we believe the motivations were for the actions, or the intent with which they were performed, or whether or not guilt or remorse were experienced and expressed by the perpetrator. Often, we trace these boundaries with a moral compass steeped in a culture of judgment for people whom we perceive as somehow “different” from us. But if I can set aside the moral and legal aspects of these cases—the issues of judgment and the issue of how to deal with these individuals as a society—I can ask the following questions: What if the individuals, who were not able to feel or express remorse or compassion for their victims, simply suffer from a neurogenic deficit of compassion? What if their brains are wired differently or have suffered damage, so that they have diminished capacity to experience guilt and remorse? How is their illness different and less worthy of compassion than that of the old Italian man who nearly killed his beloved wife?
What is the difference between an individual who has lost his capacity for awareness of his actions (the Italian man) or has no capacity to distinguish between right and wrong (the mentally retarded 18-year-old) or the capacity to control ones behavior (the bipolar man) and the individual who has lost the capacity to feel for others and therefore experience remorse? More provocatively, what is the difference between someone born with a learning disability that affects the capacity to learn certain elements of language and someone born with a deficit of compassion which affects the capacity to feel for others and experience remorse? What if the latter individual has damage or miswiring in those areas of the brain that control the capacity to feel or express empathy and compassion?
My answer to these questions is that there is no difference. We should not think of individuals who, in the absence of a history of abuse, trauma, mental illness or neurological deficit, experience no guilt or remorse for their actions as “evil” or “bad.” Instead, they should be thought of as individuals who suffer from a developmental or acquired brain dysfunction. Their deficits are those of an illness and their nature is that of a human being. While their actions still call for societal intervention (whatever society chooses to do), we need not feel compelled to hold a judgment that blocks any chance of seeing these individuals as humans with a potential for change, for connection or reconnection with others, or even for connection with hidden parts of themselves.
My other point: What is the personal moral of these stories—and, for me, of this work? No matter where we are or for what purpose, when we are engaging with another there is always a two-way stream of emotions and energy.
Years ago, I wrote in reflection:
When I prepare for an evaluation in jail, I pack myself up, armed with tests, a laptop and a shield of professional clothing. When I enter a prison visiting contact room, I wear my intellectual curiosity, the kind a chess player may need. I enter expecting an outsmarting contest, which I intend to play with an upper hand. I hold awareness at all times of my role, sustaining a certain professional distance, and armed with knowledge drawn both from studies and direct clinical experience. I have tools and methods and strategies at my disposal, as well as a clear path to a goal, its steps precisely timed by my stopwatch. I control the situation by keeping the pace and a certain facial neutrality. I give instructions and I write down notes. I don’t usually shake hands, unless the inmate extends his hand first. I am untouchable. A pilot in his cockpit… I come into the room with an intention to search, methodically and skillfully, for the signs of intention, motivation, capacity and the interplay of emotion and cognition in my playmate. I am watchful, not vigilant, hoping for a letting down of the other person’s guard. During the interview, I search for the arising of the emotions in the facial expression, the tone of voice, the body movement, and only finally in the content of what is being said to me. This process is like a dance, a pas de deux. At strategic moments I open a little crack in my responsiveness, I then step back and hope for a coming forward of the other into this freshly created space. I watch this process as well.
In spite of it all, a certain intimacy occurs—it has to occur. In this space of great physical proximity and extended hours, my awareness of the affective energy in the room is at its sharpest. In this space, the dial is turned up, and I can hear and feel as if I had some special x-ray vision. I think any clinician has known moments like this. In this “expanded sphere” of awareness, I learn much about the inner emotional world of the other. If I am pulled to tears, I know there is sadness in the room. If I feel tension or anxiety, I know there is fear. The space becomes filled with this listening, which is as tangible as a touch or pressure. When this contact occurs, I somehow reach. For a moment, a quiet sharing occurs, a silent solidarity. There is a certain kind of honest nakedness in this.
As I mentioned before, the first time I had to truly confront myself with these questions of “energy” and “feel” rather than “thought” and “ethics” or “morality,” was during the case of the bipolar man who showed no concern for the severe emotional pain and physical harm his actions had caused in others, but had great “compassion” or concern only for himself. A brilliant writer, Gobodo-Madikizela Pumla (2003; A Human Being Died that Night; Mariner Books), offers insight into the “energetic” meaning of such a situation. She writes: “When violators of human rights allow themselves to be emotionally vulnerable, they are giving others a chance to encounter them as human beings.”
This man, beyond his arrogance and lack of remorse, was expressing a need to disclose and share his story, a need to unburden himself. He was clearly eager to have a witness to his own suffering. He was asking to be listened to, asking even for compassion. In other words, he was asking to be seen as a human being. And if he could feel like a human being, if he could share a human moment with another, what was the chance that he could eventually find a broader humanity within himself? Was the act of listening, the act of being present, a potential catalyst for change? I often ask myself this question, and I often tell myself, “I hope so.”
What was the message of the encounter with the rapist? He had succeeded in making short shrift of any sort of boundary between interviewer and subject, me and him. He had penetrated my defenses. I felt invaded, naked, angry. In paying him attention and sharing space with him, I had in ways come to be on his side—and he was fully aware of it. From that moment, I was infected with the memory of such intimacy, which felt like an acknowledgment of his evil.
Yet I myself was changed by that difficult encounter. It caused me to reflect on my own actions in ways I never had before. What does my energy do? What does the energy of another do to me? How does intention translate into energy? Is it possible to embrace human suffering as a mother embraces, physically or emotionally, her child, regardless of the child’s behavior, qualities, social approval, choices, or destiny? Is there a path towards this kind of capacious embrace? In letting this man penetrate my affective boundary, I had lost the opportunity to step back and embrace the situation fully, like a mother would. I had lost my chance to offer an opportunity for change.
Pumla may have put it best. “How much evidence is necessary for one to change perspective and for transformation in one’s life to result? Is knowledge enough to change a person’s heart? Is it sufficient simply to know that the beliefs on which one has based one’s behavior are wrong? Perhaps one doesn’t need more knowledge, one needs the resolve to use the knowledge that one has. Moving from reflection to engagement requires a new way of seeing the old—the kind of shift in perspective that information rarely yields but spiritual conviction sometimes brings.”