Competency proceedings are a natural area where one should expect increasing use of behavioral science to substantiate defendants’ claims of incompetency. Because competency is an individualized and subjective determination, rather than an objective or reasonableness determination, behavioral sciences (including behavioral genetics and neuroscience) may have greater relevance and salience than in adjudications of guilt. The case today illustrates how neuroscience is being used both to support and to rebut claims of competency. Despite the failure in this case, as I’ve reported previously, it seems anecdotally that the use of neuroscience in competency proceedings is relatively successful for criminal defendants.

Despite excellent scholarship by notable scholars, the use of behavioral sciences in law remains inadequate. This is because most scholarship focuses on the discussion of genetics and neuroscience in written opinions. Such evidence may in fact be enjoying widespread use in plea bargaining, competency and other pre-trial applications, but because the records in these proceedings aren’t readily accessible, its use and success in such contexts has not been well characterized.

Together with Neil Vidmar of Duke Law School, I have applied for an NIH grant to survey defense attorneys, prosecutors, and judges on the use, impressions and experience with behavioral genetics and neuroscience in criminal cases. If funded, this survey will provide an empirical study of invisible contexts in which such evidence is being used, and help inform the relative success or failure of such evidence in these contexts.

If you are a reader of the blog, and you would be willing to participate in the survey, or to contribute your experiences with such evidence, please comment below or contact me offline!

Competency, Brain Damage, and Malingering
Noel v. State, 2011 WL 744759 (Tenn.Crim.App. 2011)
Petitioner was convicted by a jury of attempted first-degree murder, aggravated assault, retaliation for past action, unlawful possession of a weapon, and driving on a revoked license, and was sentenced by the trial court to an effective term of twenty-three years. He now appeals the denial of his petition for post-conviction relief, raising the four issues on appeal, including whether he was incompetent to stand trial due to a stroke he suffered less than a month prior to trial. The post-conviction court found that he had been seen and treated by a physician who believed at first that the Petitioner had a small strike, but based on the test results believed he was malingering. Petitioner had no difficulty communicating; no difficulty processing information; and was alert and oriented to person, place and time. The MRI was “unimpressive,” that is[,] it did not show a stroke. Counsel also felt petitioner was physically competent to stand trial and able to assist in his defense. Petitioner appeared during trial physically and mentally competent. The court held that the record fully supports the findings and conclusions of the post-conviction court and that the Petitioner was not, therefore, entitled to post-conviction relief on the basis of this claim. The court found against the Petitioner on his other three claims and affirmed the denial of the petition for post-conviction relief.