What Effect Does Brain Imaging Have On A Defense?

Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.

Brain imaging is not used in the guilt-innocence stage of the case. It’s not appropriate for guilt-innocence at this juncture. However, every time you open up your news feed and especially if you read medical journals, you find some new thing that’s been learned about the brain. For instance, researcher have identified some 15 genetic markers for depression. These are things that really matter because they affect people and especially those with depressive illnesses who are not necessarily criminals, but a lot of defendants in assault and battery cases have had depressive illnesses.

The better the treatment, the better the outcome, long-term. But in terms of guilt-innocence, defense attorneys use it strictly for damage control because Florida, like many states, has a set of mitigating factors when someone is being sentenced. It is similar to a defense because it is used in negotiations. If a defense attorney is trying to get a negotiated dismissal on a first offense assault charge, there is a very aggravated fact pattern for some reason, and this particular second degree misdemeanor is on a first offense, the state is looking for 60 days in jail, which doesn’t happen too often, but it does happen. We would use that in negotiations or alternatively in sentencing.

If it’s successful in negotiations, it can be thought of as a defense because it results in a negotiated dismissal. Under that type of a fact pattern, it would be a negotiated dismissal where the defense team would create their own diversion program. They would have their own set of treatment parameters, and this is the beauty of a negotiated dismissal, instead of the generic diversion programs. This can actually solve the problem of crime one person at a time. Brain imaging can also be used for a negotiated dismissal in many cases where people don’t qualify.

Sometimes, showing courtroom images of a brain ravaged by trauma and mental illness can be a dramatic moment, whether seen by the prosecutor’s face or a panel of jurors. This can bring an entirely different way of thinking about the individual. It is as if the person went from being a case number who needed punishment to “Oh My God! No wonder!” Brain imaging is not something used technically as a defense damage control mechanism, but it could operate as a defense if negotiating a dismissal is feasible.

Is Every Client A Good Candidate For Brain Imaging?

Anybody is a candidate. Some questions need to be asked: #1, are there red flag indicators in the intake interview? A good interviewer will prepare the best reports and ask questions designed to see if there are red flags. If there are a certain number of red flags, there will need to be a diagnostic evaluation even before the case can move forward.

In some scenarios, it may even be inadvisable to take the case. In other scenarios, the defense attorney may look at the red flags and have a heart to heart talk with the client. The attorney might say, “It looks to me like you’ve got some red flag indicators. Here’s what they are, and here’s what I am thinking. I would like for you to take a look at You’ll see what healthy normal brain images look like, and you’ll see what unhealthy abnormal brain images look like. You may want to take a look at this.” This is not to say, however, that they are a bad person, are crazy or should be locked up for the rest of their lives in a mental institution.

It’s just that when you see certain things, when people have certain life experiences, it’s very common for people who ran into trouble with the law to have brain problems. However, just about anybody can benefit from learning how to optimize their brain, and a brain imaging diagnostic evaluation will certainly give a lot of insight into this but can run about $2,700 to $3,500, so it’s something that is recommended with a great deal of deliberation.

When you see somebody who has been arrested three or four times and has had behavioral problems for a long period of time, or somebody comes from a great family with plenty of money and their siblings are doing extremely well but they aren’t, we find out why. The answers can come in the form of a brain imaging diagnostic evaluation, and there it is in true color and even 3D. If someone is having problems that result in repeated arrests or it’s their first arrest and there are other things in their history, then this individual is a prime candidate for a heart to heart talk about solving all these problems at one time.

Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.

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