QEEG Brain Mapping and the Death Penalty

As discussed earlier this week, the ability to consider QEEG Brain Mapping as evidence in capital trials is of major importance

QEEG is different than other brain imaging tools.

Over the years, the ability of experts to provide analysis of the human brain through x-rays, CAT scans (Computerized Axial Tomography scans) or MRIs (Magnetic Resonance Imaging) has become routinely accepted, although each in their own time was considered to be a scientific breakthrough into the understanding of how the brain functions (or malfunctions).  These types of scientific tools, however, deal more with the structure of the brain itself.  Use any of them, get a visual of the particular subject's brain structure.  A snapshot of sorts.

With QEEG (Quantitative Electroencephalography), you get more. QEEG goes to function, not just structure.  Through this new technology, experts can study how a particular subject's brain is functioning -- in real time -- through this painless evaluation of the brain's electrical activity.  This is done by around 20 sensors being placed upon the person's scalp; they then read electrical neuron activity under certain conditions (eyes closed, open, etc.).  QEEG provides more than a snapshot; through expert analysis, these results more fully explain exactly how well, or how lacking, a particular person's brain is capable of functioning. 

Why is this so vital in capital cases?

Intellectual functioning has been considered in regard to the death penalty by the United States Supreme Court.  In the landmark case of Atkins v. Virginia, 536 U.S. 304 (2002) the High Court ruled that it is unconstitutional to execute an individual suffering from "mental retardation" because this would be in violation of the Eighth Amendment's prohibition against cruel and unusual punishment.  The Supreme Court had also considered the issue in Penry v. Lynaugh, 492 U.S. 302 (1989)("Penry 1") opining that "mental retardation" should be a mitigating factor to be considered by the jury during sentencing - a case that was referenced and not expressly overruled in Atkins but which has come to be considered as effectively overruled by the Atkins case.  Consider the Florida statute (Florida Code Section 921.141(6)) listing our state's mitigating factors in death cases:

Mitigating circumstances shall be the following:
(a) The defendant has no significant history of prior criminal activity.
(b) The capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance.
(c) The victim was a participant in the defendant’s conduct or consented to the act.
(d) The defendant was an accomplice in the capital felony committed by another person and his or
her participation was relatively minor.
(e) The defendant acted under extreme duress or under the substantial domination of another person.
(f) The capacity of the defendant to appreciate the criminality of his or her conduct or to conform his or her conduct to the requirements of law was substantially impaired.
(g) The age of the defendant at the time of the crime.
(h) The existence of any other factors in the defendant’s background that would mitigate against imposition of the death penalty

Over time, reference to the term "mental retardation" as it appears in precedent has been replaced with the more appropriate term "intellectual disability."  See, R. Schalock et al., "The Renaming of Mental Retardation: Understanding the Change to the Term Intellectual Disability," 45 Intellectual and Developmental Disabilities 2 (April 2007).  

Determination of a defendant's intellectual ability is therefore paramount to the issue of sentencing - and the ability to use QEEG brain analysis here is of paramount importance to those interested in both the imposition of justice and the application of mercy.

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Comments (4) Read through and enter the discussion with the form at the end
Rob Gregg - November 5, 2010 2:48 PM

Atkins was 2002, not 1968 (as stated above). The timeframe of the Court's decisions on execution of the mentally retarded is a little confusing in this entry, as it states, "Later, the Supreme Court returned to the issue in Penry v. Lynaugh, 492 U.S. 302 (1989)..." Penry was obviously decided earlier than Atkins, and (in Atkins) the Court did an about face from its decision in Penry, with respect to the constitutionality of executing mentally retarded persons.

Tim Titolo - November 7, 2010 5:16 PM

qEEG in the field of traumatic brain injury has kind of come and gone in terms of being at the forefront of new diagnostic procedures. New fMRI and Diffuse Tensor Imaging Techniques are now available.
The major qEEG cases involve criminal matters and for good reason. If you come across new information on qEEG use in the courtroom, I am most interested in learning about it.

Terry Lenamon - November 9, 2010 12:38 PM

thanks for writing - the post has been clarified (hopefully).

Tim Titolo - November 11, 2010 3:45 PM


I worked in Las Vegas with Dr. Michael Krieger before he moved to Canada. Dr. Krieger and Dr. Thatcher wrote a paper refuting the criticism of qEEG some years ago. I have spoken to Dr. Thatcher, though he may not remember, and I am aware that he created the protocol. I was a huge believer in the process and still am. It quantifies what the human brain upon visual observation, may not. I agree that it is useful for diagnosis and treatment. And I agree it should be admitted into evidence. I have fought and won many admissibility arguments in trials over the years.

I just see less qEEG data being used these days. I know Dr. Krusz in Dallas uses it. If I had a doctor who used it, I would welcome it – not as a stand alone diagnostic, but in corroboration with other data, including before and after witnesses.

I am happy to hear Dr. Thatcher is still the strong proponent of qEEG. Anything that helps brain injured people get proper diagnosis and care is right. Please do put me on the subscription or whatever to keep me updated on what you do with qEEG.


Timothy R. Titolo
Timothy R. Titolo
Titolo Law Office
10100 West Charleston Boulevard 100
Las Vegas, Nevada 89134
Brain and Spine Injury Law Blog

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