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The qEEG Goes to Court

Updated: May 1


John Davis

This post presents basic information regarding forensic testimony about qEEG findings and how they may be useful in a courtroom setting. Although this information is drawn from American federal and state jurisdictions, the principles apply worldwide.


Graphic © Gorodenkoff/Shutterstock.com.


Expert witness



Forensic Medicine


Legal disputes to settle differences often require expert testimony, which in some cases is testimony about health or medical conditions. Medical testimony does not necessarily require a physician. Still, it does require testimony by experts who are accepted or qualified by a judge to provide an opinion within their scope of expertise. Similarly, the terms “medical” and “medicine” involve physicians and the many disciplines that provide assessment and treatment for a range of health conditions.



Neuroscience Evidence


Aono, Yaffe, and Kober (2019) review the history of neuroscience in court and define neuroscientific evidence as any information about the brain. Neuroscientific evidence has been used in court since the early 20th century, with its use in criminal cases increasing in the 21st century.


As Jones (2013) summarized, there are seven main categories of forensic neuroscientific evidence. These are: “buttressing (the use of neuroscience as supporting evidence); detecting (the use of neuroscience to gain otherwise elusive insights, such as the extent of brain injuries); sorting (the use of neuroscience to categorize people into legal classifications, such as sane versus in insane); challenging (the use of neuroscience to challenge an institutionalized assumption); intervening (the use of neuroscience to create and recommend interventions); explaining (the use of neuroscience to shed light on uncontested, yet not well-understood phenomenon); and predicting (the use of neuroscience to help make predictions about people’s future behavior)” (Aono et al. 2019, p. 4).


Neuroscientific evidence can be used like any other evidence to establish or dispute a claim. For instance, neuroscientific evidence could support or challenge the credibility of an expert witness, increase or decrease the likelihood of a diagnosis, support testimony about a defendant’s state of mind, show the severity of the injury, and help the trier of fact understand some other evidence. An overview of the discipline of so-called neurolaw is given by Jones and Shen (2011).



The Effects of Neuroscientific Evidence on Legal Decisionmaking


Research to date suggests that neuroscientific evidence has some mitigating effects, for example, in cases of the death penalty (Aona et al., 2019). While neuroscience testimony may affect the verdict, the finding of insanity, and sentencing, the type of mental disorder (i.e., schizophrenia vs. psychopathy) and perceived dangerous may also moderate this effect. However, brain images per se have little persuasive effect despite their allure in nonlegal contexts (Aona et al., 2019, p. 17).


As summarized by Aono et al. (2019), experimental comparisons of expert testimony to expert testimony plus neuroimages show no significant mitigating effect among mock jurors with respect to their verdict of sentence severity. Although initial studies suggested that neuroimages were uniquely persuasive (Aono et al., 2019, p. 17), such effects were not replicated.


Aono et al. (2019) summarize results from the studies they reviewed, writing that neuroscientific evidence reduced death penalty sentences across studies under most conditions, increased not guilty by reason of insanity (NGRI) verdicts, but did not increase non-NGRI not guilty verdicts or influence length of prison sentences.


Aono et al. (2019) suggest that neuroscientific evidence might be mitigating because jurors see such evidence as more satisfying and impactful, consistent with research supporting the idea that jurors prefer reductive evidence across the neurosciences (p. 18). This remains an open question.


An additional hypothesis supported by some studies suggests that neuroscientific evidence may mitigate jurors' perception that the defendant has less-than-normal self-control. According to Aono et al. (2019, p.19), the mechanism by which neuroscience evidence has mitigating effects is likely juror perception and other cognitive factors. However, no study has addressed this hypothesis directly.


Other gaps in the studies reviewed by Aono et al. (2019) are the investigation of effects due to race, sex, and cases that do not involve murder or assault (e.g., property and drug crimes). Citing Greene and Cohen (2004), Aono et al. (2019) wrote that it is “ultimately possible that the greatest contribution of neuroscience to criminal justice will be its influence on how people think about free will, responsibility, and treatability in the context of criminal behavior, rather than to influence the legal decisions they make” (p. 19).


Neuroimaging in Court


Miller and Lindberg (2017) offer a recent review of various neuroimaging methods, how they may be helpful in forensic settings, and cautions to bear in mind. As summarized by Miller and Lindbergh (2017), Meixner (2015) writes that the “basic function of the law is to regulate behavior, and neuroimaging methods are among the most powerful, robust, and objective tools available to shed light on the biological mechanisms underlying behavior” (p. 129).


Miller and Lingbergh (2017) focus their review of structural and functional neuroimaging methods in court with respect to brain damage and mild traumatic brain injury (mTBI), discussing EEG techniques only in the category of functional neuroimaging. Their review provides an excellent overview of each method, its strengths and weaknesses, and its relevance for forensic testimony. These authors note that functional neuroimaging, with its emphasis on physiological and metabolic activity, complements methods that assess structural integrity.


As Miller and Lindbergh note, functional neuroimaging can be especially important because brain injury and recovery are dynamic, with sequelae that unfold over time across several levels of analysis (e.g., individual neurons, networks, cognition, emotion, and behavior). That is, qEEG findings may help track an injury's evolution and recovery.


As discussed by Miller and Lindbergh (2017), qEEG measures provide important information about brain regions' connectivity and the timing and direction of neuronal activity. Compared to other methods, qEEG data, like MEG and ERP data, have excellent time resolution but limited spatial resolution and depth of signal detection. Furthermore, qEEG methods, according to Miller and Lindbergh, have limited specificity (i.e., with the pattern of qEEG findings being limited to only a specific condition) and reliability (in the sense of producing findings replicated across scientific studies). Nevertheless, EEG data have the potential to supplement the diagnosis and treatment of many disorders (e.g., mood disorders, learning disabilities, schizophrenia, chronic pain, and Alzheimer's disease; Leiser, Dunlop, Bowlby, & Devilbiss, 2011).


EEG methods are also prominent in the monitoring of epileptic conditions (Maganti & Rutecki, 2013), with Gutmann (2007) describing its application in the famous case of Jack Ruby, who shot and killed President John F. Kennedy’s assassin, Lee Harvey Oswald.


Miller and Lindbergh (2017) indicate that qEEG can be especially relevant to cases of TBI because of its superior temporal resolution, but EEG is not routinely used following traumatic brain damage. Studies investigating EEG have shown somewhat inconsistent findings, though generalized or focal slow wave activity and attenuated posterior alpha activity have been reported within several hours post-injury (Nuwer, Hovda, Schrader, & Vespa, 2005). Different investigators have found different EEG abnormalities (e.g., generalized bursting) or the absence of abnormality entirely (Arciniegas, 2011). Different severities of TBI may account for such discrepancies, with excess slow-wave activity being more likely among severely injured patients (Thatcher, North, Curtin, Walker, Biver, Gomez, & Salazar, 2011).


EEG measured within 24 hours of TBI has some predictive value, showing a correlation between abnormality and outcome 23 years later when factored in with posttraumatic amnesia (Hessen & Nestvold, 2009). Persisting EEG abnormality is predicted by the degree of abnormality in the acute phase of injury (Rapp et al., 2015). Changes in the ratio of local to distant connectivity (i.e., reduced theta clustering) after mTBI have been found (Tsirka et al., 2011) and interpreted as showing neural disorganization. Despite the typical normalization of EEG changes within a few months post-mTBI, some findings, such as diffuse intermixed slowing, may continue in some cases. However, this may be due to confounds such as medication (Arciniegas, 2011).


The Forensic Value of qEEG Findings


The presentation of qEEG results in forensic settings helps to inform the court about a litigant or claimant’s brain health and how that might be related to the person’s behavior, cognition, or emotional functioning so that the trier of fact, whether a judge or jury, can better make a just legal decision such as a verdict or sentence in the case. Because of its quantitative nature, use of normative values, and basis in brain science, qEEG findings can serve as a credible source of information in legal proceedings.


qEEG findings may be of interest in forensic cases for several reasons. Because the brain has an extremely significant role to play in behavior, the understanding that qEEG provides about the brain’s integrity can help the trier of fact in formal or informal proceedings make well-informed decisions about the nature and degree of injury, its effects on the brain, as well as about disability, prognosis, and culpability so that the trier of fact can reach a just adjudication. The quantitative nature of qEEG findings imparts them with an objective character, particularly because findings are compared to norms. The scientific foundation of qEEG methods furthermore leads to a discussion that is helpful in forensic hearings insofar as it embodies consideration of hypotheses and their alternatives regarding the subject’s diagnosis or condition, levels of certainty, an acknowledgment that studies have limitations, willingness to address potential criticisms, and demonstration of reasoning that logically traces propositions from the general, nomothetic scientific literature to the specific idiographic individual case in the context in which it occurs. These latter qualities parallel the types of thinking that the trier of fact must employ to reach their decision in a legal case.


qEEG findings can be likened to findings from any other medical tests, particularly other biological tests of brain structure and function (cf. CT, MRI, fMRI) (Miller & Lindbergh, 2017). They are meaningless unless interpreted in the context of personal history, other tests, normative values, and the network of research on which brain science is based. The degree to which such interpretation can be usefully made in any legal case depends on its relevance, scientific reliability and validity of the method, the type of findings that bear on the case, and the expertise of the professional who conducts the interpretation. At the least, interpretation of qEEG results should be made by a professional who is thoroughly knowledgeable about the EEG and how it is measured, scientific and statistical methods, and applying qEEG findings to cases resembling the one at issue in the legal matter that presents itself. Further, an interpretation of qEEG findings should be made by someone who thoroughly understands brain-behavior relationships and health at levels of impairment, disability, and handicap (Carter, 2023; Thatcher, 2010).


qEEG findings provide information about the possible location and type of brain dysfunction a litigant may present (defendant, plaintiff, claimant). Such findings may implicate disruption of central nervous system structures and their interactions. However, mere disruption of function (i.e., an impairment) may be irrelevant unless the functions involved and related abilities are pertinent to the mental condition or behavior (i.e., action, ability/disability, or handicap/ participation) at issue in the legal proceedings. The ecological validity of qEEG findings is at stake and is best supported by logical reasoning and empirical links between CNS function and real-world behavior. For example, a qEEG finding of significantly abnormal cortical activity in the left frontotemporal region (an impairment) is only imperfectly correlated with language function (an ability), let alone use of language at the sales desk of an auto parts store (participation in a vocational role). Therefore, qEEG findings may be only one thread in the entire fabric of evidence weighed by the trier of fact when they decide that the total of evidence reaches the threshold of the civil or legal burden of proof (i.e., the balance of probabilities or beyond a reasonable doubt, respectively).


qEEG findings carry more weight when they are consistent with other case-related data. qEEG findings may be considered in terms of their consistency with the claimed etiology of a brain injury, the severity of damage documented by other means, and behavioral observations (Greiffenstein & Kaufmann, 2018). Consistency with nomothetic (general scientific) factors is also important to consider. For example, do the qEEG findings conform to a nomothetic dose-response curve where more severe damage (dose) has reliably been found with scientific methods to produce more severe qEEG findings (response)? Or, do qEEG findings of dysfunction in the orbitofrontal region conform to a scientifically reliable association between damage to that region and disinhibited behavior?


qEEG findings are one piece of data that can help the trier of fact appreciate that an individual’s thinking, emotion, or behavior has been or is currently affected by brain dysfunction. In civil and criminal matters, qEEG results may be one of several objective data points that converge to help the trier of fact when considering a legal decision. If the question concerns diagnosis and its effects, qEEG findings alone will not answer it. However, a qEEG finding that shows dysfunction of particular regions of interest or networks may converge with other findings related to cognition, emotional function, and behavior or, in fact, with a diagnosis. For example, a finding of disinhibition in the contexts of results from neuropsychological and other tests, physical examination, and behavioral observations may be further strengthened as a consideration for the trier of fact when qEEG results show dysfunction of the orbitofrontal cortex (OFC), with the additional provision of scientific knowledge to the trier of fact that the OFC is involved in inhibitory control.


qEEG findings may be of value for the trier of fact insofar as they help to stage the severity of brain dysfunction (cf. Greiffenstein & Kaufmann, 2018). This may be the case even with mild traumatic brain injury (mTBI), a condition that presents many thorny conundrums. For example, many clinical neuropsychologists assert that late post-concussive symptoms (LPCS) following mTBI (e.g., symptoms that begin following concussion and continue for a year or longer) are most likely not due to any persistent neurobiological dysfunction or structural damage but instead relate to a complex of psychological, social, and environmental factors that perpetuate early symptoms that involve brain injury or worsen predisposing conditions. A competing hypothesis is that we lack sufficiently sensitive measurements. Our current inability to measure subtle changes does not mean they don't exist.


The genuine, though transitory, disruption of neurochemical and network connectivity processes seen in mTBI may, however, be an immediate effect of the precipitating concussive event along with its associated physical trauma and consequent disruption of functional activities. Objective qEEG findings, either soon after injury or in the several months following, may demonstrate changes in connectivity measures (Thatcher, Walker, Gerson, &Geisler, 1989) and, in this way, help the trier of fact to consider the possibility that biological changes related to injury may have been significantly involved in the initiation of cognitive, emotional, and behavioral changes. An immediate brain-related datum (i.e., qEEG findings) that is consistent with the severity of a precipitating injury may then be understood as showing changes in the brain that contribute to the initiation of injury-related impairment and disability, which in turn are maintained by perpetuating factors of a psychological and socially-mediated type that act on a person who may have predisposing vulnerabilities. Nevertheless, recent research shows that mTBI can produce lasting changes to the brain that may also be involved in persistent symptoms.


Typically, there is a dose-response relationship following TBI, with injury severity positively correlated with the severity of cognitive impairment. Nonetheless, it is wise to heed Greiffenstein and Kaufmann’s (2018, p. 902) advice to “always be open to new and objective case-specific information that may ‘trump’ base rates and provide compelling evidence” of long-term symptoms that are attributable to mTBI, that is directly to trauma-related changes to brain structure and/or function that may be objectively identified only with specialized tests (Dean & Sterr, 2013).


Whereas many clinical neuropsychologists assert that there are virtually no measurable cognitive differences several months post-injury between groups of mTBI and normal subjects, such findings may not account for the increased effort required by mTBI subjects to achieve normal performance levels.


As attributed to Carl Sagan, “Absence of evidence [in this case, of biological or cognitive differences between mTBI and normal subjects one-year post-injury] is not evidence of absence.”


To that point, and that of Greiffenstein and Kaufmann’s (2018, p. 902) advice, there is some accumulating research that shows evidence of cellular, perfusion, and both functional and structural connectivity changes long after mTBI among some subjects, which may have implications for emotional function, independent activities of daily living, socialization, and work performance (Chan et al., 2015; Dall'Acqua et al., 2017; Kan, Ling, & Lu, 2012; Lemme et al., 2021).


The trier of fact may find the objective qEEG findings probative and as contributing to the body of evidence they use to judge whether the event at issue and its injuries have led to persisting loss of function that merits compensation. Nevertheless, in cases of mTBI, neurotoxicity, or other maladies, it is important to avoid reasoning that an exposure or trauma of a magnitude that does not normally lead to persistent, significant brain injury, plus nonspecific subjective complaints, is sufficient proof of chronic changes to the brain that can only be found with qEEG methods of assessing brain function. Knowing the relevant science and avoiding reasoning beyond one’s data is important.


The greatest value of neuroimaging and qEEG in court is when integrated with data from other sources. Miller and Lindbergh (2017) suggest that several studies have found that neuroimaging improves the accuracy of specific conclusions about brain injury and the meaningful consequences thereof and that complementary methods such as qEEG and fMRI are prime candidates for combination (Mayer, Bellgowan, & Hanlon, 2015; Miller & Lindbergh, 2018, p. 134).



Glossary


acceptance, general or widespread: one of the standards for admissibility of evidence, general or wide-spread acceptance is defined as occurring in a scientific community that uses the scientific method and relies on peer-reviewed publication.


admissibility: U.S. Supreme Court rulings such as Frye, Daubert, Joiner, and Carmichael have established standards for evidence to be admitted to court.


adversarial: adversarial legal actions involve two or more interested parties who must resolve a common concern or disagreement from potentially antagonistic positions.


applicant: the type of litigant in an administrative legal matter who is applying for benefits, accommodation, license reinstatement, etc. (cf. claimant)


balance of probabilities: A level of certainty with which an opinion is offered such that the opinion is more likely than not, or more than 50 percent likely to be true (see also preponderance of evidence).


burden of proof: depending on the nature of the case, the burden of proof is a legal standard assigned to the prosecution (in criminal matters) or the plaintiff (in civil matters). It requires the party to which it is assigned to demonstrate that their claim of criminal offense or injury is valid. The burden of proof has three levels. Civil cases require a preponderance of evidence (more than 50% certainty), cases of job discrimination may require clear and convincing evidence (more than 75% certainty), and criminal cases require evidence beyond a reasonable doubt (more than 90% certainty).


capacity: functional ability to carry out a specific activity (e.g., capacity to complete personal activities of daily living).


Carmichael: The U.S. Supreme Court case of Kumho Tire Co v. Carmichael (1999) found that Daubert factors apply to experts who are not necessarily scientists and that testimony can be admitted to trial based on scientific knowledge and skill, experience, and other specialized knowledge. Kumho also specifically includes behavioral science and posits that the Daubert factors are not exhaustive, that is, one or more is sufficient reason to admit or reject evidence. The Kumho court also stated that expert witnesses must use “in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.”


certainty: the confidence level with which a verdict is found or an expert witness provides an opinion.


civil law: legal cases pertaining to personal injury, liability, negligence, and malpractice.


claimant: a litigant in an administrative legal matter who is applying for benefits, accommodation, license reinstatement, etc. (cf. claimant).


clear and convincing: the burden of proof in civil law requires a preponderance of evidence (more than 50% certainty).


competence: in contrast to an expert witness’s testimony about capacity, competence (e.g., activities noted parenthetically above) is determined by a judge or legal body, relying on evidence that a medical condition is causative. In competency hearings, capacity is only one consideration in addition to others, such as age.


criminal law: criminal law makes some acts illegal, such as murder and robbery. Criminal law is an area of the law that concerns crimes and laws applied to those who commit them. There are two main types of criminal law offenses: felonies and misdemeanors. The most serious crimes are felonies, which include offenses like murder, robbery, and arson. Misdemeanors are more minor offenses, like traffic violations or petty thefts.


cross-examination: formal interrogation of a witness called by the opposing party in a court of law to challenge or extend testimony already given.


culpability: responsibility for wrongdoing or failure.


Daubert: the U.S. Supreme Court decision in Daubert v. Merrell Dow Pharms., Inc (1993) regarding the admissibility of evidence set standards for admissibility of “general acceptance” as per Frye, and assert that the gatekeeping function belongs to the judge, who should consider whether the expert’s methodology was subjected to peer review, testable (falsifiability and hypothesis testing), and has a known error rate. Some see the existence and maintenance of standards controlling its operation as another requirement.


defendant: the person accused of committing a crime or injury.


expert witness: a person with extensive experience or knowledge in a specific field or discipline beyond that expected from a layperson.


fact witness: a witness who testifies only to that of which they have firsthand knowledge and who describes only facts (as opposed to expressing opinions).


Frye: The U.S. Supreme Court decision in Frye v. United States (1923) gave requirements for the admissibility of evidence. This standard stated that experts can give evidence that must be “generally accepted” in their field of scientific practice.


liability: one party's legal obligation to another party that they've injured or whose property they've damaged.


litigant: a person involved in a civil legal case, either because they are making a formal complaint about someone or because a complaint is being made about them, a claimant, party, or plaintiff.


mitigation: a complex, multi-pronged approach to preparing for sentencing for a defendant's crime to reduce or lessen the effects of aggravating factors.


opinion: expert opinion is testimonial evidence that gives an opinion on facts perceived by them or another that concerns an issue that is likely outside the experience and knowledge of the trier-of-fact (i.e., a layperson).


persuasive: evidence that has the power to influence or persuade someone to believe in its truth.


peer review: the use of scientific standards by others working in the same field to evaluate experimental work before publication.


plaintiff: a person who brings an action; the party who complains or sues.


prejudicial: prejudicial evidence is that which negatively impacts the fairness and integrity of the case. This can include misused evidence, confusing issues, wasting time, or simply taking too much time.


preponderance of evidence: See “clear and convincing.”


probable cause: a reasonable person would believe that a crime was in the process of being committed, had been committed, or was going to be committed.


probate: the probing of a will’s validity.


probative: tending to prove a particular proposition or to persuade as to the truth of an allegation. The probative value is the relative weight of the particular evidence.


qualification: before introducing an expert's opinion, the expert must first be found by the judge to possess some unique knowledge, skill, experience, or other quality that enables the witness to assist the trier-of-fact.


reasonable doubt: a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence.


reliability: reliability addresses the accuracy of a witness's testimony. Reliability addresses the accuracy of a witness's testimony based on methods that can be consistently used to produce similar results. In the courtroom, reliability takes on a scientific rather than psychometric meaning. The psychometric meaning of reliability is the degree to which a test score approximates a true score (cf. internal consistency, test-retest, split-half, alternate forms of reliability) or the consistency and stability of an observation, for example, using a particular measurement tool. On the other hand, reliability in the courtroom refers to the degree to which multiple studies reach the same finding or conclusion using similar methodology and reasoning (e.g., scientific methods result in consistent findings). Courts take reliability to mean that findings of one scientific study are replicated in subsequent scientific studies (similar scientific methods in multiple studies give the same result).


testimony: oral or written evidence given by the witness under oath, affidavit, or deposition during a trial or other legal procedures.


tort: an unfair action that causes an individual physical, psychological, or emotional distress, irrespective of the offender's intention.


trier of fact: the judge or jury who decides the facts and law of the court case.


verdict: the decision that is given by the jury or judge at the end of a trial.



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