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The Champion

April 2009 , Page 24 

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Forensic Neuropsychological Assessment and Death Penalty Litigation

By John Matthew Fabian

The state attorney prosecuting a capital case will emphasize words and phrases such as “inherent evil,” “psychopath,” “predator,” and “abuse is no excuse” while deeming irrelevant alternative explanations of human behavior other than free will. The prosecutor will not acknowledge that human behavior is deterministic in nature and based on biopsychosocial interactions within one’s life. Capital defense attorneys must combat the state’s narrow and simplistic view of human behavior by educating the jury through their experts about relevant mitigating evidence applicable to the defendant’s life history and level of functioning. Frequently in capital cases there will be a significant history of neuropathology/dysfunction (cognitive impairment) that needs to be examined by a forensic mental health professional and presented to the jury.

More than one-third of capital defendants have histories of neuropathological damage, and it appears a “no-brainer” to request neuropsychological assessment

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