Can Brain Imaging Be Used In Misdemeanor Cases?

Mar 14, 2023

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.

I have used brain imaging it in misdemeanor cases, juvenile cases, and just about every type of case imaginable. We have had great success with it, the proof is in the pudding, and we are currently living in an era where there is growing recognition that treatment is desperately needed. Unfortunately, when a new era starts there is a great deal of uncertainty and a lot of unsettling that goes on. There is a lot of unsettling within the treatment community because of the prevalence of faith-based treatment, such as the twelve step programs. This is not an attack on anyone’s faith at all; it is just a matter of reality that seven of the twelve steps are faith-based instead of evidence-based and science-based. Some consider this to be highly controversial. I think that the proof is so abundantly clear that it is not even close.

We use this in misdemeanor DUI cases, in situations, for example, where someone is driving, has a child in the vehicle, and they are charged with a DUI and show a very high blood alcohol level. What that person does not realize is yes it is a first DUI, however, this one actually had three red flags in it in terms of mental health and risk of jail time. The risk of the jail time flag were things like the child in a car, high alcohol level, a bad driving pattern was alleged, it was dangerous. So you put all three of those things together, and those are the types of cases where when people wander into court and go wow, I really screwed up. I am just going to plead no contest and get it over with. That fact pattern right there is the one that leaves everybody’s jaw falling open in the courtroom when the judge imposes the maximum sentence on a first-time DUI.

In this case, it would have been six months in jail. But fortunately we were able to intervene, and that case has resolved itself well. When we have a very bad fact pattern in a misdemeanor case that can result in jail time, and there are other indicators, and in this case this particular person had been battling mental health problems for well over a decade and had gone through the let us change your medicine, no, let us increase the dose, no, let us change it again and increase the dose dance several times. It had never worked, and now has a chance with an actual treatment program that is effective. I have used this with misdemeanor cases, juvenile cases, felony cases, and virtually any kind of case out there.

Wherever you have an individual who is at a fork in the road, they are really at a tipping point. It may be their first offense or their second and it is a misdemeanor, but the indicators are just there. From experience that person, if they do not make the right call, and do not get their SNAP, and if they do not make the right decision in the here and now that they are going to have a lifetime of pain starting with this case. It is my duty to say something, and I have had a lot of people turn me down. I have had people say oh it is too expensive, but compared to the pain and suffering long-term, this is pennies. The pain of not taking care of a brain problem is a lifelong cost, and part of that cost is intense suffering including within the legal system. I bring this up to people a lot.

Do not worry there are critics of brain imaging. There are insurance companies more than happy to pay semi-qualified pseudo-experts who will criticize brain imaging and it is always the same argument. Gosh, it is great for research, and it is just not ready for use clinically. That is the biggest line of crap in the world. Those insurance companies do not want to pay benefits, that is what that is. Nothing more. Those supposed critics of brain imaging would change their tone if somebody else were lining their pockets other than those with a vested interest in opposing brain imaging.

Can Use Of Brain Imaging Actually Hurt A Criminal Case?

I have been waiting for a set of healthy, normal brain images from someone who is actually guilty of a criminal offense, since 2005. I have not seen one that is even close. If we were to come across a scenario where the release of a report would do more harm than good, then, of course, we would not release it. There are certain rules and laws regarding when each side in a Florida criminal case has to release information as part of the discovery process. Many states have preliminary hearings. If someone is charged with anything from a DUI to manslaughter, they have a series of hearings in order to prove probable cause in front of the judge.

This is because in those states, and also in the federal system, you do not have robust discovery rules like you do in a money damages case such as personal injury or medical malpractice. In those types of civil cases, you have a great deal of discovery. Discovery simply means that each side is required to disclose certain information to the other side in order to prevent trial by ambush. Certain things are privileged and are not subject to disclosure. If I were to get a healthy, normal set of brain images from someone and it would hurt their case to release that information, we would just leave it in the file and not release it. There would be no obligation to do so if I were not going to call the doctor to testify.

However, I have been waiting an awfully long time for that healthy normal set of brain images and have not seen one yet, so it could happen. But the general rule of criminal defense is the same as the basic rule of medicine everywhere. Do no harm. If we find something that can cause harm, we do everything we can to protect our client and make sure that potential harm does not come to pass.

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