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Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

Traumatic Brain Injury

A Beginners Guide for Criminal Justice and Legal Professionals

Traumatic-brain injury (TBI) is a serious disorder that can result in a host of short and long-term deficits and is common among individuals involved in the criminal justice system. Individuals affected by TBI may experience a broad range of symptoms, including disturbances in adaptive functioning (e.g., independent living skills), executive function (e.g., information processing; problem-solving), attention, memory (e.g., immediate; long-term), language (e.g., speech production, comprehension) affective regulation (e.g., mood swings and depression), sensory processing (e.g., sensitivity to lights and sounds), motor impairments (e.g. ataxia, apraxia), and medical functioning (e.g., insomnia, headaches, and migraines). 

Despite these consequences, TBIs often go unrecognized and untreated, particularly in criminal justice-involved populations. As such, it is imperative for criminal justice and legal professionals to acquire an awareness and understanding of TBI and its impact on the various stages of the criminal justice system. The high prevalence of TBI in the criminal justice system emphasizes the need to better equip the professionals working in that system with training on how to screen, identify, and treat this disorder. As such, legal professionals should seek out continuing legal education trainings that focus on the impact TBI has on defendant populations.

TBI deficits and symptoms

A diverse range, intensity, and manifestation of symptoms characterizes TBI.

Symptom severity. TBI can vary in its symptoms and their severity. TBI symptoms may lead to difficulties in understanding legal terminology, interview and interrogation questions, and legal proceedings.

Adaptive functioning deficits. Individuals who sustain a TBI may have deficits in adaptive functioning—their capacity to deal with everyday challenges and problems.

Attention deficits. The attention deficits common among individuals who have sustained a TBI could result in a propensity for confusion and frustration when subjected to repeat questioning. Deficits associated with attention can also impact the individual’s ability to stay focused during courtroom proceedings and effectively participate in a court-ordered forensic evaluation.

Comprehension deficits. Defendants with TBI may have trouble comprehending legal terminology, questions, and proceedings. Further, criminal justice and legal professionals should be careful not to confuse talkativeness with comprehension or competency.

Decision-making deficits. The cognitive and adaptive deficits of TBI may hinder the ability to make decisions, solve problems, consider different points of view, and understand how context can change options. Individuals with TBI may be at increased risk for acquiescence and/or suggestibility when faced with certain decisions. 

Difficulty learning from past experiences. TBI’s cognitive deficits (i.e., executive control, memory, attention, and decision-making) make it difficult for some individuals with TBI to learn from past experiences and anticipate future problems.

Emotion regulation deficits. TBI can cause impairments in a person’s ability to effectively regulate his or her emotions. Such deficits may lead to aggression, anxiety, and/or excessive emotional reactivity. In such instances, it is important for officers of the court to understand that some of these behaviors may be the result of the brain injury rather than intentional choice.

Executive function deficits. Individuals impacted by TBI commonly experience executive function deficits—difficulties in problem solving, planning, and judgment. Executive functioning deficits may contribute to behaviors that result in criminal justice system involvement and can impact legal decision making. 

Impulsivity. In light of the cognitive deficits of TBI, some impacted individuals tend to commit impulsive and reactive crimes rather than offenses that have been thought out in advance.

Language deficits. The ability to accurately comprehend inquiry and effectively communicate a response can be affected by TBI. Such impairments have the potential to affect an individual’s functioning during interrogation, when interacting with his/her lawyer and the courts, and communicating his/her needs while incarcerated. 

Memory deficits. Memory impairments are common among individuals impacted by a TBI and could inhibit processing the cognitive and emotional antecedents of criminal behavior. Memory and learning impairments can be a contributory factor in some cases involving false testimony and false confessions. 

Comorbidity. The presence of a comorbid psychiatric diagnosis and/or substance use problems is common for offenders with TBI. Evidence of TBI’s comorbidity with other psychiatric and substance use disorders suggests that individuals with TBI will likely benefit from varied treatment and services.

Processing speed. Many individuals who have sustained a TBI experience slow speed of metal processing and may require additional time to respond to questions, complete tasks, and accomplish certain goals. As such, certain modifications and accommodations may be necessary to assist the individual as he or she navigates the various stages of the legal system.

Sensory processing and self-regulation issues. The deficits caused by TBI can result in sensory processing and self-regulation issues, which may limit the individual’s ability to regulate their own emotions. These issues can increase in unstructured or stressful situations and may present negatively in a courtroom setting.

Social skill deficits. Social skill deficits are commonly experienced by individuals affected by TBI. For example, misinterpretation of social cues is not uncommon for this population. This can lead to boundary violation issues, which can in turn result in involvement in the criminal justice system. Such social skill deficits can also increase the individual’s vulnerability to manipulation by others and an inability to detect unsafe situations and people. Deficits in these domains can lead to an increased risk for victimization while incarcerated.

Theory of Mind (ToM). Theory of Mind (ToM) is the skill to appreciate that the behavior of others is driven by their beliefs, desires, and other mental states. Individuals who have sustained a TBI sometimes have deficits in ToM.

Criminal justice and legal considerations

Deficits associated with TBI can negatively impact how effectively someone navigates the various stages of the criminal justice and legal systems.

Miscarriages of justice. TBIs can cause impairments in decision-making, long-term planning, and understanding cause-and-effect and consequences, all of which may predispose such individuals to contact with the criminal justice system. Without proper awareness, understanding, and recognition, defendants with TBI may suffer miscarriages of justice at various points in the criminal justice system.

Attorney interaction. TBI-related impairments can affect a defendant’s ability to effectively interact with and assist his/her attorney in a variety of ways. In some instances, the court may need to order an evaluation to determine the defendant’s competency to proceed. 

Testimony. Some witnesses and defendants with TBI-related impairments have difficulty testifying effectively. For example, they may exhibit impaired retrieval and communication of memories, expressive and/or receptive language impairments, or difficulty managing their emotions during cross-examination.

Expert evaluation. TBI can have a profound impact on a person’s behavior at the time of an alleged offense, understanding/appreciation of their rights, decision making, and ability to assist his/her attorney. Accordingly, evaluation by an appropriately trained forensic mental professional may be necessary to inform the proceedings (e.g., competency to proceed) and defense strategies (e.g., capacity to waive Miranda; diminished capacity). 

Statement reliability. The veracity of statements made by individuals with TBI, whether they are the confessions of a suspect or the testimony of a victim or witness, must be considered in the context of the person’s deficits and with sensitivity to the legal rights of this population.

Miranda rights. Some individuals may not be equipped to knowingly and intelligently waive their Miranda rights due to TBI-related impairments. For example, cognitive limitations may limit their ability to understand verbal communication, to understand and appreciate their right to silence, to accurately recall/convey facts, or to make an independent decision to waive their rights.  

Culpability. TBI not only impacts a defendant’s competency to make weighty legal decisions throughout the legal process (e.g., waive Miranda rights, enter a plea), but also may also impact decision making and behavior when engaging in criminal behavior. 

Mitigating factor. TBI-related impairments may be a mitigating factor to be considered during sentencing. 

Sentencing considerations. TBI may be a factor with respect to the length of sentence, disposition, and supervision requirements. These considerations are integral because the future functioning of a defendant could be improved or worsened by different types of dispositions.

Suggestibility. Some individuals with TBI may be prone to suggestibility during police interviews and interrogations, which could occur when they provide answers that they believe the authorities want in response to manipulation, repeated questions, and intense pressure (both internal and external). In particular, social and cognitive deficits may increase the individual’s proneness to suggestibility (i.e., an inclination to agree with others) and acquiescence, which could increase the likelihood of providing inaccurate information and false confessions.

Confabulation. The phenomenon of confabulation is characterized by false memories. These false memories may consist of exaggerations of actual events, inserting memories of one event into another time or place, or the creation of a new memory of an event that never occurred. Confabulation can occur among individuals impacted by brain injury and can lead to problematic outcomes if not recognized. In the worst-case scenario, TBI in conjunction with confabulation may lead to wrongful arrest, false confessions, and wrongful conviction. 

Problematic, concerning, and criminal behaviors

Deficits associated with TBI can sometimes contribute to behaviors that bring the impacted individual into contact with this criminal justice system. This is especially the case when the individual has not been properly assessed, treated, and supported. 

Vulnerability. Some individuals with TBI may fall victim to manipulation due to difficulty gauging the appropriateness and depth of social relationships. The issue of vulnerability is likely to be further exacerbated within correctional settings. As such, correctional professionals should become familiar with the topic of TBI and its impact on an offender’s level of functioning and vulnerability.

Criminal behavior. A contributing factor to criminal behavior in some individuals with TBI includes cognitive and neurological deficits, psychiatric comorbidity, impulsivity, decision-making deficits, and a reduced ability to contextualize social situations.

Screening and assessment considerations

The combination of nuanced symptomatology and diagnostic comorbidity makes the screening and diagnosis process for TBI difficult.

Under-diagnosis. TBI among criminal justice-involved populations often goes under-diagnosed. In some instances, missed or mis-diagnoses can occur. When TBI is not accurately identified in criminal justice and legal settings, problematic outcomes may arise. 

Importance of early diagnosis. Medical and behavioral interventions for TBI are enhanced by early and accurate diagnosis. In some instances, the impacted individual may require some level of long-term community-based supports and services.

Importance of screening. Individuals involved in the criminal justice and legal systems are more likely to have sustained a TBI than the general population, which necessitates increased screening for cognitive impairment and the development of TBI-informed supports, services, and programming in these settings.

Screening and assessment. Assessment should be conducted by appropriately qualified medical and mental health professionals. Only screening instruments with established reliability and validity should be employed for diagnostic and classification purposes. 

Diagnostic confusion. TBI is commonly mistaken for other behavioral, attentional, developmental, and learning disorders. Misdiagnosis can lead to the development of an ineffective treatment plan as well as problematic outcomes when the impacted individual is involved in the criminal justice system.

Supports, services, interventions, and important reminders

Providing TBI-informed supports, services, and interventions is crucial to long-term success for the impacted individual. 

Structured programming. Involvement in a structured program of support and care, which can include family and care providers, may be helpful in assisting individuals who become entangled in the criminal justice system.

Supervision and case management. The cognitive, neurological, and social deficits of TBI often necessitate intense supervision and case management when the individual is involved in the criminal justice system. Depending on the severity of the TBI, impacted individuals may need long-term and, in some cases, life-long supports. 

Specialized treatment. Some individuals with TBI may require specialized treatment approaches given their cognitive, neurological, and social deficits. As such, it is suggested that criminal justice and legal professionals reach out to medical and mental health professionals who are knowledgeable about the various supports and services available to individuals with TBI.

Vocational and social services. Mental health care and social service professionals may assist individuals with TBI in several areas including education and work, parenting and childcare, housing and transportation, and socialization.

Social support. The functioning of individuals with TBI can improve when the appropriate treatment and services are combined with strong social support systems. Prosocial supports can assist the impacted individual in learning skills and establishing daily routines that promote long-term success. 

Importance of corroboration. In light of the memory and comprehension deficits of TBI, obtaining corroboration from other information sources is essential. Criminal justice and legal professionals should seek to obtain collateral records and collaborate with other professionals who are familiar with the impacted individual’s history, day-to-day routines, and functional abilities.

Transitioning difficulties. Some individuals impacted by TBI struggle with transitioning from task to task or location to location. This may become problematic in a fast-paced environment such as a courtroom. 

Offender reentry. To increase the likelihood of successful reintegration after incarceration, offenders with TBI often require more social support than general offenders. As such, it is suggested that correctional professionals as well as probation/parole officers become TBI-informed. 

Community-based programming. When community-based service professionals engage in sustained communication among the team of providers, as well as regular coordination meetings, there is a higher likelihood that treatment interventions will be more effective for those impacted by TBI.

Conclusion

TBIs can lead to myriad short- and long-term impairments that can affect an individual at all stages of the criminal justice and legal systems. Given the high prevalence of TBI among criminal justice-involved populations, legal professionals are likely to encounter defendants with a history of TBI on a regular basis. As such, legal professionals should seek training related to the impact TBI can have on defendants trying to navigate the various stages of the legal process. In order to promote justice and appropriate interventions and outcomes, criminal justice and legal professionals should make themselves aware of the potential impact of TBI and employ appropriate methods to screen for/identify for such a history.

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