Forensic Science International: Mind and Law 2 (2021) 100046Contents lists available at ScienceDirect
Forensic Science International: Mind and Law
journal homepage: www.journals.elsevier.com/forensic-science-international-mind-and-lawLaw, Legislation and JurisprudenceAdvancement of neuroscience and the assessment of mental state at the time
of offense
Daniel Lawer Egbenya a,b, Samuel Adjorlolo b,c,*
a Department of Anatomy and Cell Biology, School of Medical Sciences, College of Health and Allied Sciences, University of Cape Coast, Cape Coast, Ghana
b Research and Grant Institute of Ghana, NO 141, Rodjoe Commey Street, Adentan-Frafraha, Accra, Ghana
c Department of Mental Health, School of Nursing, University of Ghana, Legon, GhanaA R T I C L E I N F O
Keywords:
Neuroscience
Criminal responsibility
Forensic evaluations
Neuroimaging
Mental state
Decision-making* Corresponding author. Department of Mental H
E-mail address: sadjorlolo@ug.edu.gh (S. Adjorl
https://doi.org/10.1016/j.fsiml.2021.100046
Received 20 September 2020; Received in revised
2666-3538/© 2021 The Author(s). Published by Els
nc-nd/4.0/).A B S T R A C T
Neuroscience has the benefit of illuminating the neural correlates of behaviors that are of interest to the legal
system. This raises the optimism that neuroscience will be able to considerably and appropriately address some
perennial problems besetting the legal system. Notable among them are the determination of: (1) criminal re-
sponsibility; (2) mental states at the time of offense; (3) competence to stand trial (also known as fitness to plead
or adjudicative competence); and (4) whether a defendant is telling the truth. Whereas previous discussions have
focused mainly on criminal responsibility, the present review is limited to the assessment of mental states at the
time of offense as a legal pre-requisite for determining criminal responsibility in trials involving defendants
claiming mental incapacitation (insanity defense). This is one of the challenging forensic assessment endeavors,
attracting public criticisms following acquittals based on the insanity defense. We canvas the relevant neuro-
scientific evidence to elucidate how neuroscientific advances can be applied to help improve upon the assessment
of mental states at the time of offense examinations. We examine neuroscience assessments of intention,
knowledge of the nature and quality of an act, knowledge of wrongness of an act, as well as decision-making. We
conclude that neuroscience assessments would be useful as a complementary data source in insanity evaluations.
Clinical opinion based on neuroscientific findings as well as psychosocial data (biopsychosocial assessment)
would help to improve upon assessment results.1. Introduction
The application of neuroscientific advances and evidence in the legal
arena has influenced the creation of neurolaw: a discipline interested in
exploring the effects of neuroscientific discoveries on legal rules, stan-
dards, and proceedings (Jones et al., 2013). Although neurolaw is a
relatively young field, it is expanding at a high pace (Jones et al., 2013).
The present study examines the application of neuroscience to assess
mental state at the time of offense.
Technically, law and neuroscience have different professional focus
and interest. However, law has engaged neuroscientific evidence in the
quest to deliver justice (Moriarty, 2008). In general, the legal system has
found some utility in neuroscientific evidence, owing to its ability to
illuminate the biological bases of behaviors of interest (Moriarty, 2008).
Lawyers are alert for scientific developments that can help them defend
their clients successfully, and so may find neuroscience advances very
promising (Jones et al., 2013). Albeit, the relevance of neuroscience toealth, School of Nursing, Univers
olo).
form 19 January 2021; Accepted
evier B.V. This is an open access alaw depends strictly and expressly on the psycho-legal issue at hand,
neuroscientific evidence can help the law in at least seven ways (Jones
et al., 2013). These are: (1) buttress the evidence provided by
non-neuroscientific methods such as psychiatry report, thereby,
increasing the confidence of jurors or judges on a conclusion; (2) chal-
lenge other evidence types presented at trials; (3) detect the existence of
legally relevant facts, such as brain injuries, pain or whether someone is
lying; (4) separate (sort) people into meaningful groups for specific
purpose (e.g., people likely to respond to rehabilitation); (5) provide new
methods for legal purposes such as reducing recidivism; (6) explain de-
cision pathways; and (7) predict future behavior (e.g., future violent
behavior) (See Jones et al., 2013, for details).
Indeed, empirical evidence on the admissibility of neuroimage evi-
dence in the courtroom suggests that the law has benefited from neuro-
scientific evidence. For instance, in Roper v. Simmons (2005),
neuroscience evidence establishing the relationship between brain
immaturity and behavior appeared to have contributed to the decision ofity of Ghana, Legon, Ghana.
20 January 2021
rticle under the CC BY-NC-ND license (http://creativecommons.org/licenses/by-
D.L. Egbenya, S. Adjorlolo Forensic Science International: Mind and Law 2 (2021) 100046the Supreme Court of the United States to rule out the death penalty for a
defendant who was less than 18 years old. Similarly, in Commonwealth
of Pennsylvania v. Pirela (2007), death penalty was deemed unjustifiable
or inappropriate for the defendant partly because of the neuroimaging
evidence of frontal lobe dysfunction as proof of diminished responsibility
(see Moriarty, 2008, for a review of neuroimage evidence in the U. S
courts). These developments suggest that neuroscience and the law have
established some working relationship.
It is the expectation of many legal professionals and researchers that
neuroscientific advances will be able to adequately and appropriately
address some perennial problems besetting the legal system (Batts, 2009;
Bennett, 2009; Eastman & Campbell, 2006; Jones et al., 2013; Meynen,
2013; Wasserman& Johnston, 2014; Witzel et al., 2008). Notable among
them are the determination of: (1) criminal responsibility; (2) mental
states at the time of the offense; (3) competence to stand trial (also known
as fitness to plead or adjudicative competence); and (4) whether or not a
defendant is telling the truth. From clinical assessment perspective, the
latter can be construed as whether a defendant is malingering on clinical
measures. The present review focuses on mental states at the time of
offense because it has attracted professional, research and public atten-
tion over decades, forming the basis of many legal decisions, including
criminal responsibility and dispositions. More specifically, issues con-
cerning mental state at the time of offense are central to the criminal
adjudication process in instances where the insanity defense is invoked.
A defendant can be found guilty but may not be held criminally liable
owing to a defective mental state. Acquittals based on defective mental
states have been met with fierce public criticisms and uproar, especially
in high profile cases such as John Hinckley's attempted assassination of
former U. S president, Ronald Reagan (Costanzo & Krauss, 2012). Given
that a retrospective assessment of mental state at the time of offense is
quite a challenging endeavor, it will be useful to examine how neuro-
science can contribute to undertaking insanity evaluations.
In most jurisdictions, to be held criminally liable, blameworthy or
punishable for any criminal act (actus reus), the law requires that the
accused is capable of or has the ability to form the necessary intent (mens
rea). Mental illness is one of the common conditions that can impair the
formation of intent. As a result, many jurisdictions, especially common
law jurisdictions, have enacted a special legislation referred to as the
insanity defense (Adjorlolo et al., 2019). The defense is intended to
acquit offenders whose crimes were linked to mental illness (i.e., not
guilty by reason of insanity: NGRI). However, guilty but mentally ill or
guilty but insane has been adopted as alternative verdict in some States in
the U. S (e.g., Arizona, Alaska, Georgia; see Costanzo & Krauss, 2012),
and in other jurisdictions such as Ghana; a former British colony (Men-
sah-Bonsu, 2009). Some jurisdictions, for instance Sweden, have also
abolished the insanity defense (see Lund et al., 2011). This said, the in-
sanity defense remains a topical issue (Adjorlolo et al., 2019).
Contemporary insanity defense legislations date back to the case
involving Daniel.
M'Naghten who mistakenly killed the private secretary of the then
British Prime Minister, Robert Peel (Wondemaghen, 2014). M'Naghten
was found to be mentally incapacitated at the time of committing the
crime, hence NGRI. His acquittal eventually led to the codification of
insanity defense standards, termed the M'Naghten Rules. The Rules state
that for insanity defense plea to be successful, it must be proven that: (a)
the party accused was laboring under such a defect of reason, from a
disease of the mind, as not to know the nature and quality of the act being
committed or (b) if the accused did know it, that he or she did not know
that the act was wrong (Adjorlolo et al., 2019; Wondemaghen, 2014).
2. Legal requirements in insanity defense standards
There is a significant number of inmates who are mentally challenged
compared to the general population with psychiatric disorders (Gottfried
& Christopher, 2017). Could the high number of inmates with psychiatric
disorders result from an impaired mental state of these people at the time2
of committing the offense? Could these people plea the insanity defense?
This is because their mental impairment (for instance, those with intel-
lectual disability) may put them at a reduced cognitive functioning,
hence they may easily become perpetrators or even victims of crimes
(Mosotho et al., 2020). The M'Naghten Rules explicitly emphasize know
the nature, quality and the wrongness of an act. Some jurisdictions such
as Ghana also emphasize the Know component. Section 27 of Criminal
Offences Act, 1960 (Act 29) of Ghana states: “If that person was pre-
vented, by reason of idiocy, imbecility, or a mental derangement or
disease affecting the mind, from knowing the nature or consequences of
the act in respect of which that person is accused” (Mensah-Bonsu, 2009,
p. 50). However, other jurisdictions have extra requirements. The Model
Penal Code developed by the American Institute of Law requires that a
defendant's inability to conform his conduct to the requirements of the
law should arise from a mental disorder (Meynen, 2013). According to
the Durham Rule in U. S, criminal act is a product of mental defect or
disease (Zapf et al., 2014). The Canadian Criminal Code also requires that
a mental disorder should make “the person incapable of appreciating the
nature and quality of the act or omission or of knowing that it was wrong”
(Zhao & Ferguson, 2013, p. 640). Similarly, according to the Chinese
Criminal Code, mental illness should make a person “unable to recognize
or unable to control his own conduct” (Zhao & Ferguson, 2013, p. 639).
(Interested readers are referred to Bal& Koenraadt, 2000, for discussions
on insanity defense legislations in Norway, Denmark, Germany,
Netherlands, and Belgium).
Although there are jurisdictional differences, generally, the law on
insanity defense is not interested in the presence of mental illness per say.
Rather, the relationship between the mental disorder and the crime in
question. As stated previously, it is the question of whether intent to
commit the crime is absent or severely compromised by mental disorder
(Bal & Koenraadt, 2000).
3. Forensic evaluations of mental state at the time of offense
Criminal responsibility must be critically weighed, taking into
consideration a number of factors including the mental state of the
accused (Grossi & Green, 2017). When mental illness is claimed for an
offense, the court relies on evaluation reports produced by forensic
psychiatrists and/forensic psychologists in the adjudication process.
Stated alternatively, forensic evaluations are very instrumental in
assisting the court to determine whether a defendant actually labors
under the defect of mental illness at the time of committing the crime.
This is very essential because the pronouncement of guilt or absence of it
has serious consequences such as compromising the safety of society or
depriving the accused of their innate right and freedom due to incar-
ceration. Also, the need to know the extent of severity and persistence of
mental illness of an accused should be considered (Grossi & Green,
2017). Insanity evaluations have largely relied on psychosocial data
collected via: (1) interviews with defendants, and sometimes with sig-
nificant others; (2) administration of traditional and/or forensic assess-
ment instruments; and (3) third-party information, including collateral
reports, witness statements, victim statements if applicable, police re-
ports, previous medical and psychiatric histories (Adjorlolo et al., 2019;
Zapf et al., 2014). Based on the information gathered, forensic psychia-
trists or psychologists attempt to disentangle mental state at the time of
offense from present mental state. The difference provides useful infor-
mation to estimate mental state at the time of offense. However, this is
often difficult since in most cases, the offenders have to be “stabilized”
with psychotropic medications before assessments are undertaken. The
ability of offenders to recall events or behaviors leading up to or occur-
ring at the time of the offense is particularly challenging. The adminis-
tration of standardized tests also presents additional challenge. This is the
case when the offenders do not cooperate meaningfully. Third-party in-
formation or collateral information, and crime scene data sometimes do
not also concur. In general, conflicting accounts are inevitable in mental
state examinations. Amidst all the challenges, the examiner is expected to
D.L. Egbenya, S. Adjorlolo Forensic Science International: Mind and Law 2 (2021) 100046reconcile accurately the evidence gathered to form opinion about the
presence of mental disorder (including characteristics such as type,
severity, possible duration etc.) at the time of the offense. The most
important requirement is the opinion about the effect of mental disorder
on the commission of the crime, i.e., causal relationship between the
mental disorder and the crime (see Zapf et al., 2014, for a comprehensive
review of assessment of mental state at the time of offense). The evalu-
ation report is scrutinized by the referring court, and is also subjected to
cross examination, mostly in adversarial judicial system. Despite the
conspicuous challenges, forensic psychiatrists and/forensic psychologists
have contributed immensely to the adjudication process of offenders
claiming insanity in jurisdictions that allow the insanity defense.
Researchers have expressed concerns about the validity and quality of
forensic assessments, including insanity evaluations (Fuger et al., 2014;
Gowensmith et al., 2013; Nguyen et al., 2011). To improve upon forensic
examinations in general, there have been discussions on incorporating
neuroscientific research techniques and principles (Bennett, 2009;
Meynen, 2013; Wasserman & Johnston, 2014; Witzel et al., 2008). A
well-discussed area in applying neuroscientific technologies is criminal
responsibility assessment (Aharoni et al., 2008; Batts, 2009; Eastman &
Campbell, 2006; Meynen, 2013; Wasserman & Johnston, 2014; Witzel
et al., 2008). This is connected to the idea that neuroscience has become
sophisticated to delineate the neural correlates of different behaviors,
including criminal behaviors. However, the usefulness of neuroscience in
forensic examinations has been approached cautiously. Thus, there is a
wealth of scholarship debating and discussing issues relating to the op-
portunities, threats and limitations of applying neuroscience in law. This
notwithstanding, the proliferation of neuroimage evidence in courts, and
the admittance of the neuroimage evidence in some cases (Moriarty,
2008) have reinforced optimism in the potential of neuroscience to
contribute significantly to criminal responsibility evaluations. These
neuroimages include pieces of evidence as adduced by Functional Mag-
netic Resonance Imaging (fMRI) and Magnetic Resonance Imaging (MRI)
investigations. These imaging techniques respectively, suggest the
possible functional and structural changes that the brain of the accused
may be undergoing during the time of the investigations. Additionally, a
relatively newer technique, the Diffusor Tensor Imaging (DTI) can be
used to detect defects in the white matter of the brain. This approach
enables us to evaluate the brain's neural or structural connectivity as
parametres such as fibre or axonal orientation and strength can be
determined.
Whereas previous discussions have focused colossally on criminal
responsibility as a broad concept, the present study focuses narrowly on
the application of neuroscientific advances in determining the mental
state at the time of offense. It also aims to assess the potential of these
advances to improve upon insanity evaluations. Indeed, neuroscience is
increasingly uncovering the neural correlates of psychological concepts
such as freewill, consciousness, moral judgment, decision-making, and
the self (Witzel et al., 2008), which may be useful for forensic assessment
endeavors. Given these developments, the study will examine the neural
correlates of intention since it is the foundation of the insanity defense
(Wondemaghen, 2014). In addition, the neural correlates of “know the
nature and quality of the act” and “know the act was wrong” (M'Naghten
Rules) will be investigated. Furthermore, the extent to which defective
decision making might translate into requirements in insanity defense
standards, such as appreciate, control, and recognize will also be
examined.
The more we know about the cognitive and neural correlates of
certain constructs in insanity defense standards, the more we would be
able to adequately assess the potential utility of neuroscience in insanity
evaluations. This endeavor will also inform and direct researchers
interested in exploring the brain basis of insanity defense standards. This
may also facilitate the acquisition of the needed resources and logistics to
expand and advance neuroscientific applications in forensic practice. By
doing so, opinions in insanity evaluations would be based on biological
and psychosocial data (biopsychosocial approach), which may help to3
improve upon the evaluations.
The overarching goal of the present study is to examine how neuro-
scientific advances can be applied to assess mental state at the time of
offense. Firstly, we review evidence for brain pathologies in mental
disorders commonly diagnosed in defendants claiming insanity at the
time of offense such as psychosis/schizophrenia (Adjorlolo et al., 2019).
Evidence for brain abnormalities would, also, determine the potential
contribution of neuroscience in insanity evaluations. Secondly, we
discuss the application of neuroscience in insanity evaluations. Lastly, the
findings are discussed briefly, together with recommendations.
4. Mental illness at the time of offense and functional and
structural brain deficits
The presence of mental disorder at the time of offense is crucial to the
successful use of insanity defense. Over a decade (2004–2019) review of
the insanity defense literature revealed a range of mental disorders
(Adjorlolo et al., 2019). The most occurring include schizophrenia, psy-
chosis, major depression, bipolar disorder, substance abuse disorder,
personality disorders (e.g., antisocial personality disorders, borderline
personality disorders), and mental retardation.
Schizophrenia is a debilitating disorder characterized by positive and
negative symptoms.
The positive symptoms include auditory hallucinations, paranoid
delusions, or disorganized speech and thinking, while the negative
symptoms include flattened affect, loss of a sense of pleasure, loss of will
or drive, and social withdrawal (Schultz et al., 2007).
Neuroimaging studies have found prefrontal deficits in schizophrenic
patients (Larquet et al., 2010; Shin et al., 2015), although other brain
regions such as the parietal cortex (Teixeira et al., 2014), and limbic
cortex (Hanlon & Sutherland, 2000) have also been implicated. A fMRI
study designed to assess social perception in schizophrenic patients
found lower activity in the dorsolateral prefrontal cortex (Shin et al.,
2015). Additionally, DTI has shown a significant reduction in fractional
anisotropy in brain regions such as arcuate fasciculus, corpus callosum,
cingulum bundle and fornix of schizophrenic patients (Kelly et al., 2018;
Whitford et al., 2011, pp. 1–7). This is indicative of axonal abnormality
(for instance, damage to white matter tract coherence, destruction of the
axonal membrane and reduction in myelination of axons as well as
axonal packing density) (Kubicki et al., 2005; Whitford et al., 2011, pp.
1–7).
Major depressive disorder is characterized by depressive mood,
decreased energy and interest in performing general activities, psycho-
motor retardation, appetite disorders, and suicidal thoughts (American
Psychiatric Association; APA, 2013). Neuroimaging studies have
revealed the involvement of the nucleus accumbens (Teixeira et al.,
2014), prefrontal cortex and amygdala (Rive et al., 2013), and dorsal
anterior cingulate cortex and insula (Hamilton et al., 2012) in major
depression.
Bipolar disorder has two phases: depressive and manic, each with
distinct clinical features. The features in the manic phase include inap-
propriate speech and behavior, distractibility, a tendency to make de-
cisions associated with potential painful consequences, and increased
goal-directed behavior (APA, 2013). The features of the depressive
phase include, difficulty making decisions, motor slowing, a lack of
concentration, and changes in memory (APA, 2013). Structural and
functional brain imaging studies in bipolar disorders found the involve-
ment of the prefrontal cortex (e.g., lateral orbitofrontal cortex, medial
orbitofrontal cortex), the parietal cortex (Teixeira et al., 2014), and the
amygdala, thalamus, and basal ganglia (Clark & Sahakian, 2008). Also,
patients with substance abuse disorder have also shown impaired pre-
frontal cortex in neuroimaging studies (Goldstein & Volkow, 2011),
likewise patients with antisocial personality disorder (APD). A review of
functional neuroimaging found evidence for hypo-perfusion in the
frontal lobes in APD (Wahlund & Kristiansson, 2009). In addition, a
meta-analysis of 31 functional imaging studies revealed stronger
D.L. Egbenya, S. Adjorlolo Forensic Science International: Mind and Law 2 (2021) 100046association between antisocial behaviors and dysfunctional prefrontal
cortex, specifically the orbitofrontal cortex, dorsolateral prefrontal cor-
tex, and the anterior cingulate cortex (Yang & Raine, 2009). Individuals
with psychopathic traits have also been found to be deficient in empa-
thetic abilities; the set of abilities needed for prosocial behavior and
moral development (van Dongen, 2020). Among persons with limited or
no empathy, evidence suggests structural and functional alteration in
critical brain regions, including the anterior insula (AIC), anterior mid
and dorsal anterior cingulate cortex (ACC), and periaqueductal gray
(Lamm et al., 2011).
Although the evidence reviewed is based on mentally ill patients, it,
nonetheless, provides a gauge of brain pathologies in offenders whose
crimes are linked to mental disorder (insanity acquittees). It is evinced
from the review that neuropathology in the prefrontal cortex underlie
majority of the disorders diagnosed in insanity acquittees. The ongoing
elucidation of the brain correlates in mental disorders has raised the
optimism of the usefulness of neuroscientific evidence in insanity
determination.
5. Neuroscience mechanisms in determining mental state at the
time of offense
This section examines the mechanisms through which neuroscience
can contribute to assessing mental state at the time of offense. The po-
tential utility of neuroscientific advances may be tied to its ability to,
among other things, locate the neural networks responsible for the
various mechanisms (e.g., intention) as well as demonstrate where these
neural networks are located. The present study focused on the applica-
tion of neuroscience in these two critical areas.
5.1. Neuroscientific assessment of intention
One major requirement in forensic evaluations is to ascertain whether
the presence of mental disorder at the time of offense “significantly”
impaired intention formation. The available evidence suggests that the
neural basis of intention is located in the presupplementary motor area
(pre-SMA) (Boccardi et al., 2002; Haynes et al., 2007; Lau et al., 2004;
Sumner et al., 2007). In an experimental study (Lau et al., 2004), found
that the pre-SMA was activated when participants responded to their
intentions to undertake a task. Studies have, also, found that patients
with lesions in the pre-SMA reported no activations on cognitive tasks,
compared to healthy controls (Boccardi et al., 2002; Haynes et al., 2007;
Lau et al., 2004; Sumner et al., 2007). These findings suggest that dys-
functions arising from the pre-SMA may negatively affect an individual's
ability to form the necessary intentions to carry out a crime. Most
pertinently, some researchers (e.g., Haynes et al., 2007; Lau et al., 2004)
have been able to disentangle intention from the ability to carry out an
act. This raises the possibility that mentally disordered offenders (MDOs)
can commit crimes without the requisite intentions associated with the
crimes. By extension, a crime can occur when the “storehouse” of
intention (pre-SMA) is impaired. Individuals with damage to pre-SMA
can still have the intact ability to carry out crimes by responding to
environmental and other non-intentional sources of information (Ahar-
oni et al., 2008). For MDOs, these sources could be the content of com-
manding voices (auditory hallucinations), visual stimuli (visual
hallucination), or false beliefs (delusions). On these bases, neuroscientific
evidence on the activities of the pre- SMA could help determine whether
offenders were capable of formulating the necessary intent in relation to
the crimes committed.
The pre-SMA is also thought to be responsible for self-control (Boc-
cardi et al., 2002). For instance, Boccardi et al. (2002) found that lesions
in the pre-SMA resulted in difficulty resisting picking up an item, sug-
gesting lack of self-control. This might also suggest inability to resist
impulses, and therefore can help determine whether MDOs suffer from
irresistible impulse. The pre-SMA has, also, been implicated in impulsive
behaviors commonly observed in violent offenders, as well as difficulties4
in avoiding socially unacceptable behaviors (see Bennett, 2009, for re-
view). This can help in irresistible impulse evaluations in jurisdictions
with such a requirement (e.g., China, see Zhao & Ferguson, 2013). From
the foregoing, it can be deduced that MDOs may have impaired intention
formation arising from dysfunctions in the pre-SMA. Therefore, by
measuring the activities in the pre-SMA, neuroscientists would be able to
determine the capacity of intention formation at the time of carrying out
criminal activities.
While the purported localization of intention in the brain may have
useful applications in forensic assessments, there are some challenges,
presently. First, it is not known how much of activation is required in the
pre-SMA that indicates the ability or inability to form intention. Reduced
activations might imply that an individual needs less activation to
function, and not necessarily impaired intention formation (Aharoni
et al., 2008). Secondly, abnormal activations in the pre-SMA can occur as
a result of hypoactivation, hyperactivation, positive or negative activa-
tion, or erratic pattern of brain activities, which necessarily do not sug-
gest dysfunctional pre-SMA (Aharoni et al., 2008). Thus, it might be
difficult to establish when the activations are due to normal or disordered
brain processes at the time of offense. Furthermore, disruptions in other
brain processes such as a decrease in gray matter may, also, produce
deficits similar to those observed in dysfunctional pre-SMA, especially if
the lesion is small (Bennett, 2009). The challenge, here, is to determine
whether the deficits emanated from impaired pre-SMA and/or other
brain regions, and which brain region to assess. Also, because of
distributed neural processing and brain redundancy, other neural net-
works may provide supplementary role or take up intention computa-
tions when the pre-SMA is dysfunctional (Aharoni et al., 2008). Thus,
dysfunctions in the pre-SMA might not necessarily translate into the
overall lack of ability to form intention.
5.2. Neuroscientific assessment of knowledge of nature and quality of act
“Know the nature and quality of the act” is legally construed; how-
ever, it is clinically ambiguous and challenging to determine. Forensic
Mental Health Professionals (FMHP) conducting insanity evaluations in
jurisdictions using this requirement have approached it differently, based
on their individual understanding (Witzel et al., 2008). But can neuro-
science measure something as ambiguous as “know the nature and
quality of the act”? There is evidence that the human brain gains
knowledge about actions from two sources: efferent information and
afferent information (Aharoni et al., 2008). While efferent information
entails information from the brain and spinal cord (central nervous sys-
tem) to muscles and glands of the body, afferent deals with information
from the peripheral system and sent towards the central nervous system
(Kandel et al., 2013). In other words, efferent information is governed by
motor planning whereas afferent information provides somatosensory
feedback (Aharoni et al., 2008). Important to the discussion is motor
planning and initiations of behaviors or actions. To gain knowledge of a
particular act requires awareness of intentions to perform the act, fol-
lowed by the perceptual awareness of committing the act (Aharoni et al.,
2008). For the individual to possess knowledge of an act, and subse-
quently inhibit or refrain from committing the act, then the subjective or
perceptual awareness of the act must precede the execution of the act
(Brass & Haggard, 2007). Otherwise, the act may occur but the person
committing it may lack knowledge about its nature and quality. An in-
dividual who is deficient in empathetic abilities will have challenges
inferring the mental states of others (i.e., deficit in Theory of Mind). This
makes it likely that persons with psychopathic traits, for instance, who
have been shown to lack empathy will have difficulty knowing the na-
ture, extent of and quality of criminal acts they undertake.
The perceptual awareness of an act is also modulated by the angular
gyrus, an area within the parietal cortex (Sirigu et al., 2004). In an
experimental study, Sirigu et al. (2004) found that patients with parietal
lesions reported when they started moving, only after becoming aware of
the intention to move. This finding suggests that impairment in
D.L. Egbenya, S. Adjorlolo Forensic Science International: Mind and Law 2 (2021) 100046awareness of intention can lead to impairment in perceptual awareness of
the act. This will in turn deprive the individual of the knowledge of the
nature and the quality of the act. This could apply to MDOs with
dysfunctional angular gyrus. Aharoni et al. (2008) argued that offenders,
in this case MDOs, with dysfunctional angular gyrus can perform quick
behaviors such as pull a trigger before becoming aware of the act. This,
also, indicates the possibility that MDOs might know they have
committed a crime after the crime had actually occurred. This perhaps
might satisfy the requirement of “know the nature and quality of the act”.
The decision to inhibit an ongoing act after gaining knowledge of it
deserves attention. The human brain network contains a control structure
(e.g., the dorsolateral fronto-median cortex) for self-initiation, inhibition
or withholding of actions one intended to perform (Brass & Haggard,
2007; Krieghoff et al., 2011). That is, humans have the innate power and
ability to control their behaviors via initiations and inhibitions. However,
the brain control mechanism for self-inhibition can be incapacitated by
dysfunctional structural and functional brain processes commonly seen
in patients with mental disorders (Bahraini et al., 2014). This circum-
stance increases the probability that an individual with mental disorder
with corresponding dorsolateral fronto-median cortex damage will have
substantial challenges inhibiting ongoing act, even if they have knowl-
edge about its execution. This, also, has implications for the insanity
defense incorporating irresistible impulse or those requiring the inability
to conform one's behavior to the requirement of the law (Model Penal
Code, see above). However, it is not clear the extent of awareness that
will enable MDOs know the nature and quality of the crimes committed.
Furthermore, as noted by Aharoni et al. (2008), it is not clear whether
awareness is a unitary construct or it has other dimensions distributed
across the brain.
5.3. Neuroscientific assessment of knowledge of wrongness of an act
Neuroscience can help understand or determine whether people have
knowledge of wrongness of their acts based on research into the neural
correlates of salient concepts such as moral judgment, social contract
reasoning and Theory of Mind (ToM) (Aharoni et al., 2008). As humans
interact with others, and engage in various actions, they are, also,
required to evaluate the morality of their actions. Studies have revealed
that the ability to judge the morality of one's actions is influenced by the
integration of cognitive, emotional and motivational mechanisms (Dec-
ety & Howard, 2013). Moral judgment has been found to emerge very
early in life (around 3 months of age), and continues throughout adult-
hood (Decety & Cacioppo, 2012, p. 108). Studies that have employed
fMRI on both healthy participants and neurological patients have
revealed the brain mechanisms implicated in moral thinking or judg-
ment. This network of regions includes the ventromedial prefrontal
cortex, dorsolateral prefrontal cortex, medial prefrontal cortex, tempor-
oparietal junction, amygdala, and insula (Avram et al., 2013; Decety &
Cacioppo, 2012, p. 108; Hayashi et al., 2014; Koenigs et al., 2007; Young
& Dungan, 2011). Damages to these brain regions are very common in
patients with mental disorder (see the section on mental illness and brain
deficits).
There is evidence that patients with lesions to these brain regions
have profound difficulties in judging whether an act or a behavior pro-
duced by themselves or by others is wrong (Hayashi et al., 2014; Koenigs
et al., 2007; Moll et al., 2005). Thus, dysfunctions arising from these
brain regions might suggest that MDOs would be deprived of the
knowledge of the wrongness of the act. It is, however, unclear whether
impairment in moral judgment is general or specific. That is, whether
offenders with lesions to these brain regions will have deficient moral
judgment in specific situations or in all situations. One study found that
patients with damage to the ventromedial prefrontal cortex do not
necessarily lack the capacity to judge the moral wrongness of an act, as
their moral judgments were normal in some cases (Koenigs et al., 2007).
If so, the challenge is how to demonstrate that during the commission of a
particular crime, the offender could not know the moral wrongness of5
that act. This raises the question about whether there are specific acts in
which moral judgment would be impaired after damage to the prefrontal
cortex.
Neuroscience investigations of the neuronal basis of applications of
social rules (i.e., social contract reasoning) can help to demonstrate
whether an act is wrong. Generally, as humans, we coordinate our ac-
tivities with those around us, care deeply about ourselves and others, and
want to be treated in fairly and trustworthy manner: all these processes
contribute to a coherent social world guided by social rules (Lieberman,
2007). A social network of inter-dependency is based on clear and
explicit social rules. In other words, humans have social contractual
agreements to ensure peaceful co-existence. We are bound by this con-
tract to recognize and appraise our behaviors and actions, and their re-
percussions on others. The rule of thumb is to refrain from engaging in
behaviors that are socially undesirable. Interestingly, the ability to
engage in or apply social rules in appraising the appropriateness of one's
act has neural underpinnings. The brain regions implicated in social rules
include the ventrolateral prefrontal cortex, the medial frontal gyrus, left
angular gyrus, and the orbitofrontal cortex (Fiddick et al., 2005;
Krawczyk, 2012; Krawczyk et al., 2011). The prevailing hypothesis is that
dysfunctions associated with social contract reasoning might hinder an
individual's capacity to judge any particular social contract violations as
right or wrong (Aharoni et al., 2008). In essence, MDOs with concomitant
damage to these brain regions may not be able to appreciate the
wrongness of their crimes.
Furthermore, neuroscientific research advances in ToM can help
assess knowledge about wrongness of an act. ToM refers to reasoning
about the mental states of others (Yang et al., 2015). That is, ToM is the
ability to predict the relationships between internal states of one's mind
and external states of affairs (Frith, 1989). It involves differentiating the
reality that others perceive from one's subjective reality (Baillargeon
et al., 2010). ToM has been reported to emerge by age four, and continues
into adulthood (For review, see Lieberman, 2007). It is a common,
effortless, and indispensable part of human reasoning (Fodor, 1987)
which help individuals in their daily navigations in the complex social
environment (Wan, 2012).
Neuroimaging studies have shown activations in several cortical and
subcortical structures, including: medial prefrontal cortex, the temporo-
parietal junction, the posterior cingulate cortex/precuneus, posterior
superior temporal sulcus, and the ventrolateral prefrontal cortex (Bah-
nemann et al., 2010; Frith & Frith, 2003; Lieberman, 2007; Mar 2011;
Saxe & Wexler, 2005). In general, the temporo-parietal junction is
associated with evaluating others' mental states, particularly from
third-person perspective (Carter et al., 2012). In one study, when the
participants were tasked to attribute beliefs and desires to another per-
son, it was found that the temporo-parietal junction was activated (Saxe
& Wexler, 2005). Abnormal activations (i.e., hypoactivations) in the
temporo-parietal junction result in two conditions. The first relates to
deficit in ToM (e.g., inadequate belief attribution), and the second in-
volves over-attributions of others mental state (Aharoni et al., 2008).
MDOs with deficit in ToM may be unable to judge the wrongness of their
acts. Similarly, frightening delusions can be the result of the
over-attributions of others' mental states (Aharoni et al., 2008). MDOs
can over-attribute others’mental states to mean that people are planning
evil against them (persecutor delusion), gestures or comments of people
are directed at them (delusions of reference), or that someone in love
with them (erotomanic delusion). In sum, the inability to appropriately
and accurately recognize the mental states of others, either arising from
deficits in ToM or over-attributions, could provide biological basis to
determine whether MDOs have knowledge of the wrongness of their
crimes.
Despite the above promising potential of neuroscience in contributing
to detecting whether or not MDOs have knowledge of the wrongness of
their actions, the major challenge is that, there could be other brain re-
gions holding cues to determining the knowledge of wrongness of act that
have not yet been detected (Aharoni et al., 2008). It is, therefore, possible
D.L. Egbenya, S. Adjorlolo Forensic Science International: Mind and Law 2 (2021) 100046that damages to brain regions, other than those above, may result in
deficits in whether MDOs have knowledge of the wrongness of their
crimes. In addition, depending on the extent of deficits in ToM, indi-
vidual can extract moral information by observing the behaviors of
others in the environment (Aharoni et al., 2008).
5.4. Neuroscientific assessment of decision making in insanity
Neuroscientists have been interested in elucidating decision-making
deficits in patients with mental disorder (Hori et al., 2014; Larquet
et al., 2010; Struglia et al., 2011). Deficits in decision making have been
suggested as one of the mechanisms influencing the commission of
crimes by MDOs (Meynen, 2013). Kalis et al. (2008) categorized
decision-making process into three stages. The first stage involves
generating possible actions to accomplish an act. The second involves
selecting the most appropriate actions from the action list generated in
the first stage to execute an act. The last stage, initiation of the
decision-making process, is where the actions chosen in the second stage
are implemented. According to Meynen (2013), the ability to execute
each stage of the decision-making process is severely compromised in
patients with mental disorders. Thus, decision-making is relevant to the
various insanity defense standards, although it is not explicitly stated
(Meynen, 2013). Accordingly, deficient decision-making might result in
inability to follow appropriate social behaviors. This could lead to diffi-
culties in conforming one's conduct to the requirement of the law (Model
Panel Code insanity criteria). Impaired decision-making might also result
in challenges in possessing knowledge of the nature and quality of act, or
knowledge of wrongness of act (M'Naghten Rules). Compromised deci-
sion making processes may also culminate in substantial challenge to
appreciate (Canadian Criminal Code insanity criteria) or recognize
(Chinese Criminal Code insanity criteria) the nature or quality of the
crimes committed. Other ramifications include challenges to inhibit
ongoing proscribed act (irresistible impulse). In essence, defective
decision-making might satisfy some criteria in the various insanity de-
fense standards.
Neuroscience has evinced that decision making is a biopsychosocial
phenomenon (Witzel et al., 2008). Indeed, neuroscientific studies have
implicated predominantly the prefrontal cortex (dorsolateral, orbito-
frontal, and ventromedial) (Onge et al., 2012; Wilbertz et al., 2012) in
decision-making. The prefrontal cortex modulates cognitive functions
collectively termed executive functioning. Executive functioning is an
umbrella term referring to higher-order, goal-directed cognitive pro-
cesses, including those related to planning, goal-setting, self-awareness,
self-initiation, self-inhibition, self-monitoring, strategic behavior, prob-
lem solving, and cognitive flexibility (Hargrave et al., 2012). These
abilities are relevant in decision-making in ambiguous and risky situa-
tions (Del Missier et al., 2010). Studies comparing clinical patients and
normal healthy controls have found gross impairments on decision
making tasks (Larquet et al., 2010; Struglia et al., 2011). Larquet et al.
(2010) assessed the feeling of regret following the execution of regretful
decisions. It emerged that schizophrenic patients, compared to healthy
controls, did not report any regret and did not anticipate any negative
consequences of their choices. Similarly, using Iowa Gambling Task (IGT)
(a laboratory task designed to measure emotion-based decision-making),
Struglia et al. (2011) found that schizophrenic patients performed poorly
on the task than the normal controls. Patients with attention deficit hy-
peractivity disorder (ADHD) also reported deficits in decision-making on
a combined fMRI and electrodermal neuroimaging tasks (Wilbertz et al.,
2012). Another study found that major depressive patients have diffi-
culties making decisions in a social context interaction (Wang et al.,
2014). In addition, Witzel et al. (2008) asserted that individuals’ emo-
tions have significant influence on decision making even when they have
intact decision-making abilities. Accordingly, disordered emotions may
affect negatively the decision-making stages described above. Similarly,
defective emotions would compromise the ability to undertake voluntary
acts. The neural correlates of emotions in decision making, including6
emotional judgments, are the prefrontal cortex (Coricelli et al., 2007),
and the amygdala (Seymour & Dolan, 2008). In summary, by assessing
the neural correlates of decision making, including emotion, neurosci-
ence will be able to contribute to the assessment of mental states at the
time of the offense.
6. Discussion
As stated previously, the application of neuroscience in insanity ex-
aminations may be tied to its ability to among other things; (1) identify
the neural networks responsible for the various mechanisms (e.g.,
intention) and (2) demonstrate where these neural networks are located.
This review has found evidence for some of these mechanisms, particu-
larly those relating to neural correlates and their locations.
In general, progress has been made in delineating some brain regions
and/or neuronal connections that appear germane for insanity evalua-
tions. Neuroscience can advance the argument that abnormalities in
certain brain regions are likely to result in significant cognitive and
behavioral dysregulations that are observed in insanity acquittees. The
available evidence suggests that the prefrontal cortex and its connections
might help neuroscientific investigations to satisfy some of the criteria in
insanity defense legislations. Thus, assessments of pertinent neural cor-
relates might help to reveal whether a defendant can formulate the
necessary intentions, know the nature and the quality of the act, as well
as know the wrongness of the acts. In addition, terms such as appreciate,
recognize and conform can be understood with neuroscientific advances.
Also, neuroscientific evidence may help determine the decision-making
capacity and the emotional states of MDOs at the time of offense.
It should also be noted that lesions to a range of brain regions may be
relevant in undertaking neuroscientific assessment of insanity. For
instance, damage to the temporal lobes and the limbic system can result
in unprovoked anger, memory and intellectual difficulties, behavioral
dyscontrol, and difficulty in regulating oneself amidst threatening stimuli
(Fabian, 2010). Similarly, because of the rich neuronal inter-
connectivities, damage to a neural network may affect the functioning of
others (Jurado & Rosselli, 2007). Thus, impairment in the prefrontal
cortex may result from injuries sustained by the cortex, as well as injuries
sustained by other connected cortical and subcortical structures. Like-
wise, damage to the prefrontal cortex may result in damages to the
subcortical structures regulating emotion (e.g., the amygdala and hip-
pocampus) (Seo et al., 2008).
Most importantly, neuroscience currently may not be able to inde-
pendently determine insanity (Gazzaniga, 2006; Morse, 2004). Insanity,
and for that matter criminal responsibility, is a human construct that may
not be explained by neuroscience whose tenets are only based on cells of
the brain (Gazzaniga, 2006). However, neuroscientific assessments may
add more objective information to bolster the accuracy and validity of
clinical opinions that are based largely on psychosocial data. This was
demonstrated by Rigoni et al. (2010) when they assessed the mental state
of a woman who committed murder but was suspected to be mentally ill
at the time of the crime. The authors incorporated neuropsychological,
brain morphometry (neuroimaging using MRI scan), genetic analysis and
psychiatric (both clinical interview and Minnesota Multiphasic Person-
ality Inventory, MMPI-2) and the Psychopathic Personality
Inventory-Revised (PPI-R) assessment modalities. The neuroimaging
data revealed the offender had reduced gray matter volume in the left
prefrontal cortex (left middle frontal gyrus, left superior frontal gyrus),
lateral temporal cortex and the superior occipital cortex, compared to the
control group. The psychiatric and neuropsychological data, also,
revealed that the defendant had a reduced capacity to control her
behavior, as evidenced by high impulsivity, poor behavioral control,
emotional disorder and borderline personality disorder. As noted previ-
ously, impairment in the prefrontal cortex is associated with reduced
self-control (also see Bennett, 2009). Thus, neuroimaging evidence of
impaired frontal lobe has corroborated the psychosocial evidence on
reduced self-control. The assessment has provided holistic data covering
D.L. Egbenya, S. Adjorlolo Forensic Science International: Mind and Law 2 (2021) 100046the biological and psychosocial indicators of disordered behaviors.
Interdisciplinary approach in forensic assessments will invariably
improve the outcome of the assessment. The uncertainties that charac-
terize decision-making regarding mental state at the time of the crime
may be reduced substantially with evidence from neuroscience. As noted
previously, neuroscience provides a general knowledge which aims at
elucidating how brain injuries and mental disorders may prevent an in-
dividual from effectively making rightful decisions and taking steps to
correct or avoid wrongful decisions. Consequently, clinical opinion based
on neuroscientific and psychosocial data will be able to respond appro-
priately and adequately to the demands of the assessment requests by the
judicial system. These assessment results might be able to withstand
cross-examinations that epitomize adversarial systems. There is also the
tendency for judicial acceptance and confidence in evaluations that are
supplanted with neuroscientific data (Greene & Cahill, 2012; Rendell
et al., 2010).
There are, however, other substantial challenges for neuroscience to
overcome, in addition to the challenges discussed earlier. It is important
that neuroscience demonstrates the extent of brain injuries necessary to
produce corresponding behavior deficits. This is because, not all lesions
and pathologies in the brain regions implicated in insanity evaluations
indicate a compromised mental state (Batts, 2009). In addition, not all
people with similar brain lesions do commit crimes. Therefore, the mere
presence of a brain lesion might not provide enough biological justifi-
cations as to why a crime occurred (Gazzaniga & Steven, 2005; Sinnot-
t-Armstrong et al., 2008). Furthermore, the exact mechanisms through
which neuroscience can retroactively or retrospectively determine
mental states at the time of a crime have not been explicated. The major
concern is how evidence of brain lesion at a later date will reveal the true
state of the brain at the time of the offense. Even if neuroscientific
findings truly reflect the state of brain at the time of offense, the accuracy
of neuroscience techniques to detect impairment is also another limita-
tion (Aharoni et al., 2008). Interpreting and relating the neuroimage data
to mental state at the time of offense is another major challenge besetting
neuroscientific evidence in the courtroom (see Moriarty, 2008, for de-
tails). In this regard, it is postulated that neuroscientific evidencemay not
necessarily meet the legal standard on admissibility or otherwise of sci-
entific evidence. The criteria outlined in Daubert and Frye by the Supreme
Court in the United States include (i) empirical testability, (ii) support
from peer review, (iii) error rate and whether acceptable, (iv) general
acceptability in the scientific community. In particular, questions remain
regarding the acceptance of neuroimaging evidence by the general
neuroscience community, as well as the error rates associated with pro-
ducing neuroscientific evidence and whether they are acceptable.
Currently, there is a paucity of empirical data detailing these essential
criteria; a development that may have contributed to the slow use of
neuroscientific in criminal adjudication.
The ecological validity of neuroscientific findings is another
constraint. That is, the extent to which neuroscience findings relate to
normal daily behaviors in the social environment (Kasai et al., 2015).
Neuroscience has traditionally measured brain activity in
laboratory-based settings. These settings are largely artificial, with few or
no competing stimuli. This contrasts the real-world environment where
individuals, including offenders, are exposed to several competing and
interfering stimuli. How the brain functions in these two settings might
differ substantially. As a result, laboratory-based measurements might
not provide adequate information regarding an individual's brain func-
tion in real-world environments. Indeed, ecological validity of neuro-
scientific findings has been identified as a recurring problem when
applying neuroscience in law (Aharoni et al., 2008). Overcoming this
limitation involves measuring the action of the brain in the real-world, as
this can help to understand the human brain and its mental functions
beyond the laboratory settings (Kasai et al., 2015). Therefore, the exact
influence of neuroscience data on judicial pronouncements is an area of
growing interest that is yet to be seen.7
7. Conclusion
The complex and challenging task involving assessing mental state at
the time of offense apparently may not be answered satisfactorily by
neuroscience alone. It will prove very useful as a complementary data
source in insanity evaluations. Clinical opinion based on neuroscientific
findings as well as psychosocial data (biopsychosocial assessment) would
help to improve upon assessment results in the legal system.
Funding
No funding was secured for this study.Declaration of competing interest
The authors have no competing interest to declare. Samuel Adjorlolo
is on the Editorial Board of FSI Mind and Law and has no access to the
peer review of this manuscript.
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