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50 Ct. Rev. 62 (2014)
The Admissibility of Brain Scans in Criminal Trails: The Case of Positron Emission Tomography

handle is hein.journals/ctrev50 and id is 62 raw text is: The Admissibility of Brain Scans in Criminal Trials: The Case of Positron Emission Tomography Susan E. Rushing he People of the State of New York v. Herbert Weinstein (1992)1 is one of the earliest and most prominent exam- ples of an attorney offering a Positron Emission Tomog- raphy (PET) scan as evidence in a criminal trial. Mr. Wein- stein, a 68-year-old, married, Caucasian male worked in adver- tising. Mr. Weinstein had no past criminal history and no his- tory of violence, but he was accused of strangling his wife and throwing her body from their 12th-story Manhattan apartment to make her death appear to be a suicide. When confronted, Mr. Weinstein admitted his guilt and even readily admitted his attempts to cover up his crime.2 Mr. Weinstein's lack of emo- tion when discussing the crime and apparent lack of remorse for his action caused his legal team to question whether the older gentleman could be suffering from a neurological impair- ment that caused an uncharacteristic act of aggression.3 Acts of aggression have been hypothesized to arise from dysfunction within the prefrontal cortex and impaired connec- tions between the frontal lobe and associated limbic brain regions. Physicians consulting with Mr. Weinstein's defense attorneys suggested Mr. Weinstein undergo neuropsychologi- cal testing and brain scanning that could demonstrate poten- tial structural and/or functional deficits in his brain.4 An MRI of Mr. Weinstein's brain revealed a large cyst in the arachnoid mater, a protective lining that covers the brain tis- sue. The arachnoid cyst was situated within the left sylvian fis- sure and compressed the left frontal, temporal, and insular regions of Weinstein's brain. A functional scan of Mr. Wein- stein's brain demonstrated that the areas of brain tissue that were compressed by the cyst were not metabolizing glucose at the expected rate. Mr. Weinstein's attorneys offered the PET scan in support of a claim of not guilty by reason of insanity (NGRI). Prosecutor Zachery Weiss moved for an order to pre- clude Weinstein from offering any testimony or other evidence concerning his PET scan. The prosecution argued that PET scans were not accurate or reliable depictions of cerebral metabolism5 The prosecutor further argued that the idea that hypometabolism in the frontal lobes causes frontal lobe dys- function was not generally accepted in the psychiatric and neurological community6 Likewise, Weiss argued that it was debatable whether a causal link could be established between the presence of a congenital cyst and a single violent act. A Frye hearing followed, and Judge Richard Carruthers consid- ered whether the PET scan was generally accepted as a diag- nostic instrument within the psychiatric and neurological community7 A PET scan measures brain function by determining the brain's use of glucose-the main energy source for the brain. Brain cells, called neurons, need glucose to survive and to function properly In order to assess glucose metabolism, glu- cose is radioactively labeled with a tracer. The most common radiotracer in use today in PET scanning is 18F-fluo- rodeoxyglucose (18F-FDG).8 FDG-PET is the only established technique that allows analysis of brain glucose metabolism in a live person. Before the PET scan, 18F-FDG is injected into the vein of a patient who has previously been fasting. As the radioactive glucose is metabolized by the brain, a pair of pho- tons is emitted and captured by detectors within the PET scanner through a process called co-incidental detection.9 The scanner records the number of times that photons are captured. The resulting counts are used to calculate a meta- bolic rate. The metabolic rates are displayed in color-coded fashion in which metabolic increases are typically shown in shades from yellow to red and metabolic decreases are shaded from blue to purple. The 18F-FDG PET (FDG-PET) images are used to determine sites of abnormal glucose metabolism and can be used to characterize and localize brain abnormali- ties. Edward Hoffman and Michael Phelps developed the PET scanner in 1973, and techniques for diagnosing diseases in humans soon followed. FDG-PET is an accepted clinical test Footnotes 1. People v. Weinstein, 591 N.Y.S.2d 715 (N.Y. Sup. Ct. 1992). For an excellent discussion of the Weinstein case including commen- tary from attorneys and expert witnesses, see Owen D. Jones, Jef- fery D. Schall & Francis X. Shen, The Case of the Murdering Brain, in LAW AND NEUROSCIENCE 41-67 (2014). 2. Daniel A. Martell, Causal Relation Between Brain Damage and Homicide: The Prosecution, 1 SEMINARS IN CLINICAL NEUROPSYCHIA- TRY 184 (1996). 3. Norman Relkin et al., Impulsive Homicide Associated with an Arach- noid Cyst and Unilateral Frontotemporal Cerebral Dysfunction, 1 SEMINARS IN CLINICAL NEUROPSYCHIATRY 172 (1996). 4. Id. 5. Zachary Weiss, The Legal Admissibility of Positron Emission Tomog- raphy Scans in Criminal Cases: People v Spyder Cystkopf, 1 SEMI- NARS CLINICAL NEUROPSYCHIATRY 202 (1996). 6. Id. 7. Weinstein, 591 N.Y.S.2d 715. 8. In this paper, the radiotracer used in PET scanning is 18F-FDG. The term PET will signify 18F-FDG PET. 9. For a detailed explanation of how a PET scanner measures glucose metabolism, see Susan E. Rushing & Daniel D. Langleben, Nuclear Neuro-imaging, PET and SPECT, in 1 NEUROIMAGING IN FORENSIC PSYCHIATRY: FROM THE CLINIC TO THE COURTROOM 3 (J. Simpson ed., 2012). 62 Court Review - Volume 50

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