The Daily Digest, 3/3/11

The Law and Memory Conference at Stanford Law School on April 1, 2011 will bring together leading scientists, practitioners and scholars on the intersection of law and memory. The conference will begin with the science, and then focus on the issues around detecting and manipulating memories. The first case today is but one of the many ways in which memory is an issue. Challenges to witness credibility based on head injuries or other neurological impairments have been made often, now with better science to substantiate the claims.

The second case shows how claims have become increasingly more specific using neuroscience to challenge responsibility and punishment. A few years ago, a defendant would introduce non-specific evidence of an earlier head injury. Here, the defendant is claiming he received ineffective assistance of counsel because his trial counsel did not order neuroimaging to evaluate his frontal lobe damage.

Brain Injury, Memory, Witness Credibility
State v. Smith, 2011 WL 680151 (Ct. App. La. 2011)
The Defendant was charged with first-degree murder, attempted first-degree murder, and possession of a firearm by a convicted felon. The Defendant entered a plea of not guilty, and the jury found the Defendant guilty as charged. Defendant was sentenced to serve life imprisonment at hard labor, without benefit of probation, parole, or suspension of sentence for first degree murder; to fifty years at hard labor, without benefit of probation, parole, or suspension of sentence for attempted first degree murder; and to fifteen years at hard labor, without benefit of probation, parole, or suspension of sentence for possession of a firearm by a convicted felon. Defendant now appeals and asserts three assignments of error. In his first assignment of error, the Defendant contends the evidence presented is insufficient to prove beyond a reasonable doubt that he shot the victim drug dealer and his companion. He contends that the sole evidence submitted by the State was the statement of a witness who suffered brain damage and memory loss in the shooting and there was no corroborating evidence. The witness testified that he experienced memory problems at times. He further testified, “I might remember and forget, but it’ll come back to me shortly.” He was asked if anything ever came back to him that was not correct, and he responded, “Sometimes.” He also admitted that his memories were “scrambled” sometimes. The witness victim testified that he actually lost his memory for three to four months after he was shot. He then testified that he could trust his memory and agreed that what he was saying at trial was an absolute fact. The Defendant argues that the witness’s physical injuries and the resulting mental confusion render his uncorroborated testimony insufficient as a matter of law. The court held that the jury chose to believe the witness’s testimony and that determination should not be second-guessed by the court. Accordingly, it found this assignment of error lacks merit. It likewise found the second and third assignments of error lacked merit and affirmed the convictions and sentence.

IAC, Non-Capital Sentencing Mitigation, Cumulative Evidence
Lathram v. Johnson, 2011 WL 676962 (E.D. Va. 2011)
Petitioner, proceeding pro se, filed a petition for a writ of habeas corpus challenging the constitutionality of his convictions of multiple felonies.  He was indicted by a grand jury for seven felonies, was certified for trial as an adult, entered a guilty plea to all of the charges, and was ultimately sentenced to a fifty-year aggregate sentence, with twenty-five years suspended. In his petition, he argues, inter alia, that his trial counsel failed to present a meaningful defense. Specifically, while he recognizes that his trial counsel attempted to establish that petitioner’s frontal lobe was underdeveloped at the time of the offense trial counsel failed to procure a neurology expert and failed to have “neuroimaging” done. Petitioner failed to provide an affidavit from a neurology expert to indicate what the expert’s testimony would have been or what “neuroimaging” would have shown. Consequently, the court affirmed the judgment that petitioner failed to demonstrate that counsel’s performance was deficient or that there was a reasonable probability that, but for counsel’s alleged errors, the result of the proceeding would have been different. Respondent’s motion to dismiss was granted, and this petition dismissed.

About Nita A. Farahany

Professor of Law and Philosophy, Professor of Genome Sciences and Policy
This entry was posted in Criminal, Neuroscience and tagged , , , , . Bookmark the permalink.

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