Journal of Criminal Law and CriminologyVolume 50Issue 4 November-December Article 15

Winter 1959

Electroencephalograph (EEG) as Evidence ofCriminal ResponsitilityEdwin C. Conrad

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Recommended CitationEdwin C. Conrad, Electroencephalograph (EEG) as Evidence of Criminal Responsitility, 50 J. Crim. L. & Criminology 405(1959-1960)

POLICE SCIENCE

THE ELECTROENCEPHALOGRAPH (EEG) AS EVIDENCE OF CRIMINALRESPONSIBILITY

EDWIN C. CONRAD

Edwin C. Conrad is Professor of Law, Syracuse University, Syracuse, NLwv York. For twenty-four years he maintained a practice as a trial attorney in Madison, Wisconsin and has taught aseminar in scientific evidence at the University of Wisconsin. Mr. Conrad is the author of ModernTrial Evidence (1956) and Wisconsin Evidence (1949) and has contributed several articles to thisJournal. He is a fellow in the American Academy of Forensic Sciences and a member of the Ameri-can Law Institute.-EDITOR.

CRIMINAL RESPONSIBILITY

The Durham case' has revived the contro-versial issue of criminal responsibility. Theproponents of M'Naghten's rule, the right andwrong test, still maintain that it is scientificallyadequate, founded upon necessity, and dictatedby the experience of mankind.2 Inherent in thisposition is the concept that criminal responsibilityis a legal and not a medical problem and thatwholesale acquittals under Durham will endangersociety. On the other hand, Durham, the socalled "product of mental disease" test, to whichhas been added in some cases the idea of "irre-sistible impulse," maintains that insanity isbasically a medical, not a legal problem, that theM'Naghten rule ignores medical developmentsof the past century, and that the "right and wrong"test should be discarded in favor of the "productof mental disease" criterion.;

This article will concern itself with proof ofcriminal responsibility under any of the pre-

' Durham v. United States, 214 F. 2d. 862 (C.A.,D.C. 1954).

2 See People v. Ricks, 327 P. 2d. 209 (Cal. Apps.1958); State v. Goza, 317 S.W. 2d. 609 (Mo. 1958).

A very searching analysis of the adequacy ofM'Naghten is contained in the recent case of Sollars v.State, 316 P. 2d. 917 (Nev. 1957), motion for rehearingdenied 319 P. 2d. 139 (Nev. 1957).

• Durham v. United States, 214 F. 2d. 862 (C.A.D.C.1954); Commonwealth v. Chester, 150 N.E. 2d. 914(Mass., 1958); State v. Pike, 49 N.H. 399, & Amer.Rep. 533 (1869).

New Hampshire was the first state to be influencedby the teaching of Dr. Isaac Ray, the eminent Englishpsychiatrist, that insanity is a medical problem. Asearly as 1869 New Hampshire abandoned theM'Naghten rule and in its stead introduced the conceptthat an accused is not to be held criminally responsibleif his unlawful act was the result of mental disease ordefect. Under the New Hampshire rule, insanity is notdefined as a matter of law but in effect is made aquestion of fact to be determined by the jury as anyother fact would be determined.

vailing tests by the use of electroencephalographicstudies.

HISTORICAL ORIGINS OF THE ELECTRO-

ENCEPHALOGRAPH

The electroencephalograph, hereinafter referredto as EEG, is a modern scientific, medical instru-ment which records the brain wave patterns ofindividuals.

While the EEG was developed after 1929,Galvani, the Italian scientist, as early as 1790,demonstrated that: (1) contraction of muscles willoccur on electrical stimulation; (2) during acontraction of a muscle by use of external force,an electric current is generated. 4 Later in 1875,Caton in England was able to show that theexposed brain of a rabbit produced electricaldisturbances, which could be graphed and re-corded., However, while there was some workalong these lines, it was not until 1924 that HansBerger, a German psychiatrist, visualized theprocess of recording brain waves and using therecords obtained to analyze specific psychiatricproblems. Berger's publications on the subject,beginning in 1929 and ending in 1939, have earnedfor him the title of father of electroencephalog-raphy.1

I GALVANI, L.: De Viribus Electricitatis in MotoMusculari Commentarius. MEMOIRS OF THE INSTITUTEOF SCIENCES. Vol. 7, p. 1791, Bologna, Italy.

5 CATON, R.: The Electric Currents of the Brain.BRIT. MED. J., Vol. 2., p. 278, 1875. CATON. R.: Re-searches on Electrical Phenomena of Cerebral GrayMatter. TR. INTERN. MED. CONGRESS, 9th Session,Section VIII. (Physiology), Washington, D. C., Vol.III, pp. 246-249.

6 See BERGER, H.: Uber das Elektrenkephalogrammdes Menschen. ARCH. F. PSyciLAT. Vol. 87, pp. 527-570, 1929.

See also SCHWAB, ROBERT S., ELECTROENCEPHALOG-RAPH'Y, pp. 1-7. (W. B. Saunders Co., Philadelphia,1951.)

EDWIN C. CONRAD

Figure 1.Electroencephalograph in operation. The 8 brain wave patterns are visible on the graph. (Courtesy, Edin,

Worcester, Mass.)

THE BRAIN WAVE RECORDER

The EEG is an apparatus for making graphicrecords of the actual electric potentials of thehuman cerebrum. Two or more electrodes con-nected to the instrument are placed on differentparts of the skull or scalp. The difference in poten-tial brought about by electrical action within thebrain is traced by styluses writing with ink on acontinuous paper strip. The EEG is a rather com-plex electronic instrument, an integral part ofwhich is a powerful amplification system necessaryto record the small voltages occurring across theelectrodes placed on the skull. (See figure 1). Inessence the EEG records both the cyclical activityand amplitude of brain wave patterns of the humanbeing. In other words, the EEG records perma-nently and in readable form the electrical oscilla-tions of the brain due to the electrical activity ofthe cortical cells.

A study such as this can only skim the surface

with respect to the subject of brain wave patternsand their significance. Medical men, however,will agree that in general a normal brain wavepattern in human beings is discernible and thatall other patterns are considered abnormal. Byway of illustration, Gibbs teaches us that therhythmic activity of the cortex of the brain rangesfrom below 1 cycle per second to above 100 cyclesper second, and the voltage range is from I micro-volt (one millionth of a volt) to 1000 microvolts.Adult normal persons will show a frequency rangeof 8Y2 to 12 cycles per second and a voltage rangefrom 5 to 50 microvolts; also many types of in-jury to the brain, such as trauma and infection,will slow or speed up the electrical activity of thecortex.7 According to the Gibbs classification, anEEG with a dominant 8%/ to 12 cycles per second

7 GIBBs, F. A. AND ERNA, L., ATLAS OF ELECTRO-

ENCEPHALOGRAPHY, VOl. 1, pp. 70, 106, Ch. 10, What isNormal, p. 106, (2nd. ed., Addison-Wesley Press,Cambridge, Mass. 1950).

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ELECTROEXCEPIHALOGRAPH .IS El7DENCE

activity and no abnormal slow or fast activity isclassified as normal for adults, all others beingabnormal. At the other extreme, organic damage tothe brain will slow cortical activity, and a slow orvery fast EEG suggests an epileptic diathesis oran organic brain disorder., The dart or spike anddome configurations of the brain wave pattern withincreased activity in cycles per second is quitecharacteristic of certain types of epilepsy. 9 (Forcharacteristic brain wave patterns, see figure 2).

Obviously, what is a normal EEG depends on agreat number of factors, beyond the reach of thisarticle. That many variables will affect the resultsas recorded by the EEG is obvious. The observa-tions of Gibbs on brain wave patterns are illumi-nating:

1. A normal EEG is presumptive but not posi-tive evidence of normality.

2. A slight abnormally slow or fast EEG is byitself not significant but adds support toother evidence of an epileptic diathesis oran organic brain disorder.

3. A very slow or exceedingly slow EEG as wellas a very fast or exceedingly fast EEG sug-gests an epileptic diathesis or an organicbrain disorder.'0

Brain wave patterns will be influenced by thefollowing EEG parameters or factors:

1. Age.2. Level of consciousness (whether asleep,

awake, relaxed, attentive).3. Brain metabolism.4. The clinical symptomatology of epilepsy

and related brain disorder (trauma, en-cephalitis, vascular disease).

5. Pharmacological action of stimulants, seda-tives and anti-epileptic substances."

These variables do suggest certain limitationswhich must be considered in interpreting any EEGstudies.

In passing it should be noted that the AmericanMedical Association and the American Electro-encephalographic Society have adopted minimumstandards and specifications for acceptable EEGinstruments.u These are set forth in the Gibb'sbook and should be thoroughly studied beforeconsidering the presentation of EEG evidence.

SIbid., Vol. 1, pp. 70, 106.9GRAY, ROSCOE N., ATTORNEY'S TEXTBOOK OF

MIIEDICINE, Vol. 1, pp. 1033-1036, (NM. Bender & Co.,Albany, N.Y., 1951).

"I Gibbs, op. cit., Note 7, supra, Vol. 1, p. 110.I Gibbs, op. cit., Note 7. supra, Vol. 1, pp. 79-80.12 Gibbs, op. cit., Note 7, supra, Vol. 1, pp. 126-136.

I.AAAAAMANI VVII \MAP11 11 1 1 1IIW IVA2. MWAAkfivAAWV'

3. VVVV'V'1AIA

Figure 2.Brain Wave Patterns.

A diagrammatic illustration of various types of brainwaves as recorded on EEG tracings, the x or horizontalaxis being the time base and the y or vertical axis theamplitude of the wave. (1) and (2) represent normalalpha 9-11 c/s rhythm. (3) and (4) demonstrate vari-ous types of "slow waves" from 3 c/s to 6 c/s, thetype of cerebral dysrhythmia seen after cerebral con-cussion. (5) represents the isolated "spike" found asa sign of focal irritation of the underlying cortex.(6) represents a seizure discharge. Source: GORDY,DR. LouisF, Concussion of the Brain, AwERCANBAR AssN., 1955 PROCEEDINGS, Section of InsuranceLaw, pp. 437, 463.

LIMITATIONS ON THE USE OF THE EEG

The science of electroencephalography is stillin its early stages of development, and therefore,it may take the medical man many years more tofathom the meaning of the various brain wavepatterns. At the present time the EEG can onlybe regarded as a diagnostic aid to be used alongwith the history of the patient and other scientifictools. In itself it cannot replace adequate clinicalexaminations. In other words, can EEGs only beinterpreted with the aid of case histories and clini-cal findings.'3 As Gray points out, aside from thedart and dome of epilepsy, the EEG serves in

13Belgium Correspondent. Symposium, BelgiumSociety of Mental and Legal Medicine and Neurology,JOURN. Ai. MED. Ass N., Vol. 155, July 31, 1954, 1).1273.

t959]

EDWIN C. CONRAD

confirmation of other studies, but will not in itselfpermit diagnostic conclusions; moreover, the EEGis not positively diagnostic of epilepsy.1 4

In a sense, every individual has a unique EEGof his own.15 Thus, abnormal waves may be foundin normal individuals, and normal waves may evenbe found in epileptics. 16 Many demented patients

have a normal EEG.17 Consequently, it is ex-tremely difficult to define a normal EEG. Underpresent techniques two examiners investigatingthe same subject may come up with different con-clusions. Of course, "the greatest care is necessaryin the interpretation of tracings and the practicalconclusions which can be derived from them". 8

While legal medicine can profit presently fromthe use of the EEG, the following preliminaryconsiderations affecting its use must still be re-solved:

1. Standardization of the technique of record-ing.

2. A clear definition of the normal rhythm andits alterations.

3. Knowledge of the metabolic factors whichcontrol cerebral rhythm.

4. A consideration, on the basis of extensivestatistics, of the percentage of normal andabnormal tracings in disorders pertaining tolegal medicine."9

The lack of definite standards with respect tothese four points is an important objection to theuse of the EEG and has led to the charge that in-terpretation of such graphs is a matter of individualuncontrolled judgment rather than scientific cer-tainty. As a matter of fact, the accuracy of meas-urements on the EEG depends largely on the re-corder's skill, care, and knowledge of the variousvariables involved, including the particular posi-tion of the electrodes with respect to the lines offorce in the electric field. Therefore, any absolutemeasurements of voltage on the EEG are nearlyimpossible.2 0

'4 Gray, op. cit., Note 9, supra, Vol. 1, pp. 1031-1041.

15 Gibbs, op. cit., Note 7, supra, Vol. 1, p. 106.16 Gray, op. cit., Note 9, supra, Vol. 1, pp. 1033-

1035.17 HILL, DENIS, ELECTROENCEPHALOGRAPHY, p. 360

(McMillan Co., N.Y., 1950).18 Paris Correspondent, Application of Electroenceph-

alograph in Legal Medicine, JOURN. Am. MED. ASS'N.,Vol. 129, Dec. 27, 1945, p. 1220.

19 Observations of A. Boudoin and Fischgold, 64thCongress of French Ass'n for the Advancement ofScience, Paris Correspondent, JOURN. Am. MED. ASS'N.,Vol. 129, Dec. 22, 1945, p. 1220.

20 Schwab, op. cit., Note 6, supra, pp. 22-23.

Medical authorities are in general agreementthat the EEG serves a very useful function in de-termining organic brain damage and certain formsof epilepsy.2' But there is a disagreement as towhether the EEG can detect functiomal disorders.One school of thought in the medical field hasclaimed some degree of correlation between theabnormal EEG and the functional disorder of thehuman being.2 A review of the medical literatureindicates that most medical authorities shy awayfrom any conclusion that the EEG will revealfunctional, as distinguished from organic, disorderin the individual. Rowntree has characterized thisviewpoint in these words:

"Electroencephalography is of value in thediagnosis and localization of space occupyingbrain lesions, in the diagnosis and classificationof epilepsy, and in the localization and progno-sis of head injuries. It is of some value in certainorganic diseases of the nervous system, mainlyas an index of cortical involvement, in the diag-nosis of mental diseases with an organic basis,in medicolegal cases and in the diagnosis ofbarbiturate intoxication. It is of little value indifferential diagnosis of functional nervous andmental disorders, does not indicate loss of braintissue and is not a measure of intelligence.Electroencephalography is just another lab-oratory procedure and should be regarded asskeptically as any other test in which resultsdepend on machine, technician, and inter-preter." 3

Hughes confirms this thinking:"While the usefulness of electroencephalog-

21 HUGHES, JOSEPH, Electroencephalography, Am.JOURN. OF PSYCHIATY, Vol. 105, Feb. 1949, p. 627.2"The frequent finding of abnormal cortical rhythms

in psychopaths and behavior disorders generally sug-gested that direct evidence ot abnormal brain functionin criminals might be obtained by electroencephalog-raphy." HILL, DENIS, ELECTROENCEPHALOGRAPHY, p.350 (McMillan Co., N.Y., 1950).

Sol Levy and Margaret Kennard, examining 100prisoners, found that 30% of the EEG records of suchprisoners showed abnormal EEG's as compared to5-10% usually found in the normal population. LEvy,SOL, and KENNARD, MARGARET, A Study of the Elec-troencephalogram, as Related to Personality Structurein a Group of Inmates of a State Penitentiary, Vol. 109,Am. JOURN. PSVCHIAT., April 1953, pp. 832-839.

For similar studies, see: HEUYER, G., NEKHOROCHEF,I., and LELoRD, G., Semaine Hop., Paris, Vol. 33, pp.211-220, Jan. 20, 1957. Abstract. JouRN. Am. MED.AsS'N., Vol. 163, Ap. 27, 1957, p. 1652.

23 ROWNTREE, D. W., Clinical Uses of Electro-encephalography, Vol. 50, N. ZEALAND MED. JOURNAL,Oct., 1951, pp. 433-536. Abstract, Vol. 148, JoURN.AMER. MED. ASS'N., Ap. 5, 1952, p. 1255.

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ELECTROENCEPHALOGRAPH AS EVIDENCE

raphy in the fields of organic mental disease isacknowledged, there is, as yet, no convincingevidence of specific EEG abnormalities in func-tional psychiatry disorders, nor is there anyevidence that the incidence of EEG variabilityis any greater in patients with such disordersthan in the general population despite the nu-merous reports in the literature to the contrary.These divergent views in the EEG literatureare not only confusing but indicate a pressingneed for all workers to agree on accepted normalEEG controls against which to check their re-spective findings." 24

Fetterman and Victoroff have concluded:"The EEG has taken its place with the ECG

(electrocardiograph) and other devices as a re-search and diagnostic instrument. Properly in-tegrated with other clinical laboratory andsurvey procedures, it can help in removal ofpersons from jobs they should not hold, evaluatemental capacity following a brain injury, detectlatent cortical seizure states such as epilepsy,estimate the effect of environment and toxicagents on cerebral function and separate somehysterical from organic disorders. In medicolegalcases it is of special value in the determinationof mental capacity in testamentary cases, culpa-bility in criminal cases, latent and actual cere-bral damage in compensation cases and malin-gering in litigation claiming loss of vision,hearing or tactile sensation." 25

THE EARLY USE OF THrE EEGIN ENGLISH CASES

The use of the EEG in criminal cases to proveor disprove the sanity of an accused was a logicaldevelopment arising out of the studies and demon-strations of Hans Berger. However, as pointed outby Gray:

"The study of criminals is among the most24 HUGHES, JOSEPH, Electroencephalography, Vol.

105, AmER, JoURN. OF PSYCHIATRY, Feb. 1949, pp. 627-628.

There is no rigid overall relation between the EEGand personality. Gibbs, op. cit., Note 7, supra, Vol. 1,p. 78.

The EEG has no absolute value in differentiating theresponsible from the irresponsible, Paris Correspondent.Observations of Titeca, Symposium, Belgium Society ofLegal Medicine, and Neurology. Vol. 155, JotURN. Am.

IED. Ass'N., July 31, 1954, p. 1273.25 FE -RESAN, J. L. and VIcToRoFF, V. M., Indus-

trial and Forensic Applications of Electroencephalog-raphy, Vol. 4, A.M.A. ARCH. INDUST. HYG. ANDOCCUP. MED., July, 1951, p. 10. Abstract in Vol. 147,JOuRN. AmER. MED. Ass'N., Oct. 13, 1951, p. 687.

difficult of all problems presented to the medicalprofession. While normal electroencephalogramsdo not conclusively demonstrate that diseaseprocesses such as epilepsy are absent, the pres-ence of waves and spikes is strongly indicativeof petit mal attacks. Marked abnormalities ofalmost any type indicate other psychoses. Crimemay have been committed during periods oftemporary insanity, but less frequently thanalleged.

"Criminals frequently claim amnesia, tem-porary loss of memory. It is most difficultthrough clinical examination to determine ifthe usual cause, epilepsy, is present. To waitfor a seizure which may be very long postponedis most unsatisfactory. A normal electroen-cephalogram casts serious doubt upon the allega-tion. A record of neuronic discharge indicative ofepilepsy may prevent the miscarriage ofjustice.

2 16

Three English cases, all decided in trial courts,illustrate the early use of the EEG in the deter-mination of criminal responsibility. An Englishsoldier, who had fired a rifle at a corporal, claimedthat he had no knowledge of the affair and suffereda head injury a few hours previously. Apparently,the attack was without motive. An EEG showedabnormalities compatible with head injuries, andthe soldier was discharged. In another case a brutaland apparently purposeless murder was com-mitted. The accused claimed that the act was per-formed in a period of postepileptic confusion. Theevidence of epilepsy was tenuous, but an abnormalEEG was produced. The medical expert testifiedthat an absolute diagnosis of epilepsy could not bemade on this evidence, as no subclinical attackswere seen, but he concluded that the EEG madethe diagnosis of epilepsy likely. The accused wasfound "Guilty but insane",27 and so escaped capitalpunishment.H

In another case, a 20 year old student wascharged with the murder of his mother. Prior tothe time he had killed her, he had drunk 4 pints ofbeer. He had no recollection of the killing. Twomedical men gave him the same quantity of mildbeer and upon examination, they found that theaccused's blood sugar content was lowered when

26 Gray, op. cit., Note 9, supra, Vol. 1, p. 1040.2 This is the orthodox finding in English courts

where the defendant has been found insane.2 London Correspondent. The EEG in Criminal

Trials, JouRN. AMER. MED. ASS'N., Vol. 121, Jan. 2,1943, p. 64.

EDWIN C. CONo4D

tested with the EEG while under the influence ofthis beer; the results indicated that the brain waveswere erratic and definitely abnormal. The jury,studying the EEG, was apparently influenced byits findings and found the accused "guilty but in-sane'.29

No English appellate case, dealing with the ad-missibility of EEG records in proof of criminal re-sponsibility, has been discovered. In the UnitedStates in personal injury cases the EEG has beenused rather extensively to prove brain damage.30

While-no reliable source of information seems to beavailable, the ensuing examination of Americanappellate decisions indicates that EEG recordsare used in trial of civil cases on the issue of braindamage and in the trial of criminal cases on theissue of criminal responsibility. Appellate courtshave recognized the EEG as valid scientific proofwithin the rule of the Frye case,3' the polestar whichguides the bench and the bar in considering theadmissibility of scientific proof.

• CONSIDERATIONS OF COMPETENCY

In considering the admissibility of scientificevidence in general, the New York Court of Ap-peals in People v. Magri2 recently stated:

"Almost daily reproductions by photography... x-rays, electroencephalograms, electrocardio-grams, speedometer readings, time by watchesand clocks, identity by finger printing, and bal-listics evidence, among a variety of kindredscientific methods, are freely accepted in ourcourts for their general reliability, without thenecessity of offering expert testimony as to thescientific principles underlying them". (Empha-sis added.)nThis, in effect, says that the court will take

judicial notice of the working principles of the

9 London Correspondent. The EEG as Evidence ofCriminal Responsibility, JOURN. AMER. MED. ASS'N.,Vol. 122, May 15, 1943, p. 190.

30 GORDY, DR. LoUIsE J., Concussion of the Brain,1955 PROCEEDINGS OF THE AMERICAN BAR ASSOCIATION,Section on Insurance, p. 454. MUNDY-CASTLE, A. C.,Electroencephalography and Forensic Medicine, JouRN.oF FORENSIC MEDICINE, Vol. 2, Ap.-June, 1955, p. 95.

3' Frye v. United States, 54 App. D.C. 46, 293 F.1013, 34 A.L.R. 145 (1923).

See also GIBBS, F. A., Medicolegal Aspects of Electro-encephalography, CANADIAN BAR REVIEW, Vol. 24, p.359-388 (1946).

2 3 N.Y. 2d. 562, *566, 147 N.E. 2d. 728, 170 N.Y.S.2d. 335, *338 (1958).33 This principle has been repeated several times

subsequently: People v. Jones, 10 Misc. 2d. 1067, 171N.Y.S. 2d. 325 (1958); People v. Duskin, 11 Misc. 2d.945, 174 N.Y.S. 2d. 527 (1958); People v. Pett, 178N.Y.S. 2d. 550 (1958).

EEG and that no testimony of an expert nature isnecessary to establish its general reliability and thescientific principles underlying the use of the EEG.This is indeed a very liberal approach to a rathercomplex problem.

Use in Civil Cases: Practically all of the casesexamined related to the use of the EEG to provebrain damage either in a personal injury suit or aworkmen's compensation proceeding. The holdingsin these cases will give us a pretty fair idea as to theevidential worth of the EEG as an instrumentalityof proof.

The case of Egelston v. Industrial Commission ofArizona3' involved a situation in which a claimant,seeking compensation for head injuries, introducedthe results of a pneumoencephalogram, which isessentially an x-ray of the skull and brain, afterremoval of spinal fluid from the brain. The resultsshowed some injury to the brain, according to onemedical witness, but the Industrial Commissionrefused to make an award to claimant on the basisof what it considered doubtful evidence. More-over, the Supreme Court held that it was not errorfor the Commission to deny claimant's request foranother similar test at the expense of the Com-mission. In the pneumoencephalograph, damageto the brain is ascertained by reading variousshadows appearing on the x-ray of the brainwhereas in the EEG, no x-ray is involved, the EEGbrain wave patterns furnishing the scientificclue as to cerebral injury. Nevertheless, it is im-portant in the study of our problem, to bear inmind that the pneumoencephalograph method isavailable, although it does involve a painful op-eration, which the EEG does not.35

The first case on the appellate level.dealing withthe admissibility of an EEG is Mayole v. B. Crystal& Son, Inc.,36 decided in 1943, about four years

after Berger's written contributions had come to anend. Plaintiff had sued defendant to recover dam-ages sustained as a consequence of plaster fallingupon the plaintiff while he was in a loft buildingowned by defendant. The New York Supreme

52 Ariz. 276, 80 P. 2d. 689 (1938).In Cole v. Town of Miami, 52 Ariz. 488, 83 P. 2d.

997 (1938), a workman's compensation applicantclaimed a permanent damage, including a possibleJacksonian epilepsy, all as the result of a fall. The com-mission ordered claimant to submit to a pneumo-encephalogram. Claimant declined to take such test. Itwas held that the necessity for taking such test was upto the commission, unless it appeared that such testwould greatly endanger the life or health of the plaintiff,without any reasonable prospect of securing informationmaterial to the claim.

36 266 App. Div. 1008, 44 N.Y.S. 2d. 411 (1943).

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ELECTROENCEPHALOGRAPH AS EVIDENCE

Court, Appellate Division, Second Department,held, without discussion, that:

"The (trial) court committed (prejudicial)error in excluding the testimony of plaintiff'smedical witness as to the condition or conditionsfor which the electroencephalograph was a test.It was also error to exclude the electroencephalo-gram and the records respecting it made in theordinary course of business. E374-a, Civil Prac-tice Act. .. "Betz v. Travelers Ins. Co.,- is a good illustra-

tion of the use of the EEG to prove braindamage in workmen's compensation proceedings.Applicant had been given an award as a conse-quence of an explosion on the employer's premises,which explosion caused plaintiff's head to bethrown against the ground. Applicant was notsatisfied with the award, and subsequent to thisdetermination Dr. P. examined applicant bymeans of an EEG, found abnormalities present,and concluded that the EEG was strongly sugges-tive of localized brain damage. Dr. K., basing hisconclusion on the EEG, found that applicant hadsuffered some injury to the brain. The Court ofAppeal of Louisiana, First Circuit, remanded thecase to the District Court to allow the plaintiff totake the testimony of Drs. P. and K. as to suchEEG for the purpose of'showing whether plaintiffsuffered any brain damage, reserving to defendantthe right to introduce similar evidence.39

Snyder v. Jensen0 also involved a personal injurycase. Plaintiff was a passenger in an automobileand sued the host driver for a permanent braindamage. Plaintiff's medical witness, Dr. M., aspart of his medical examination, ordered an EEG.This was done under his direction at WashingtonUniversity School of Medicine, St. Louis, thedoctor being in charge of the department of neu-rology and psychiatry. Dr. M. interpreted the EEGgraphs and made a finding indicating a disorder of

V Ibid., N.Y.S. 2d cit., p. 412. In Accord: Peoplev. Jones, 171 N.Y.S. 2d. 325,* 330 (1958); Wheelerv. United States, 211 F. 2d. 19 (C.A.D.C. 1958).

"s 68 So. 2d. 666 (La. App. 1953).' On a remand, the District Court reaffirmed the

original award after listening to the additional testimonyby Drs. P. and K., for the plaintiff, and Dr. K., fordefendant. On appeal by plaintiff, this judgment wasaffirmed: Betz v. Travelers Ins. Co., 82 So. 2d. 379(La. App. 1955). The Court of Appeal of Louisiana,First Circuit, emphasizes the point that while the EEGmay demonstrate the exact locality of irritative lesions,confirmatory objective symptoms permit determina-tion more accurately and that the EEG has not estab-lished a new method of sufficient certainty to replacecareful clinical observations.

40 281 S.W. 2d. 802 (Mo. 1955).

the brain, which he took into account in concludingthat there was permanent brain damage; he alsofound that the pattern is different when the brainis diseased as compared to a normal pattern. De-fendant objected on the ground of hearsay. TheSupreme Court of Missouri concluded that (1)there was sufficient identification and authentica-tion of the EEG since it was made at his requestand direction while he was head of the departmentand (2) the doctor could base his opinion on theEEG as well as other evidence in the case. *

R

In Melford v. Gaus and "Brown ConstructionCo.,4 an almost parallel situation, plaintiff, aminor, struck his head on a heavy plank on theground. It was contended that plaintiff sustainedpermanent brain damage. Three EEGs of plain-tiff were made by Dr. F. A. Gibbs, a renowned ex-pert and author in electroencephalography;43 allthe EEG tests bore notations identifying them asones taken of the plaintiff. Dr. Gibbs, at the trial,testified that when the tests are made he sets upprescribed conditions which give objective findingswhen extraneous radiation disturbances and pa-tient disturbances are held to a minimum; that theparticular tests are made when the patient isasleep and this was true of the plaintiff; that thetests were made by a technician under the directionof Dr. Gibbs. There was also testimony that ex-perts can tell from examining the tracings whetherthe results of a given test are valid.

The Illinois court held that the testimony ofDr. Gibbs justified the inference that the machinewas properly calibrated and in proper functionalorder and that the graphs were made under com-petent technical care. The court also rejected theargument that the technician who made the EEGsshould be produced in view of the fact that Dr.Gibbs himself authenticated such documentaryproof. The court also held that another neurologist,in answer to a hypothetical question, including thetestimony of Dr. Gibbs that the EEG showed per-manent brain damage, could testify that therewas brain damage. A reading of the opinionindicates that the court was impressed by suchtestimony and affirmed the award in favor of theplaintiff.

The necessity for calling a neurosurgeon in addi-

It See also Louisville and Nashville Railroad Co. v.Tucker, 262 Ala. 570, 80 So. 2d. 288 (1955), in which anaward of $50,000.00 for permanent brain injury wasupheld on the basis of EEG and other evidence in thecase.

42 151 N.E. 2d. 128 (Ill. Apps. 1958).13 Dr. Gibbs is the coauthor of the most compre-

hensive work on the EEG; see Note 7, supra.

EDIVIN C. CONRAD

tion to an EEG expert was recently considered bythe Texas Civil Appeals Court in Lantex Construc-tion Co., v. Lesjal." The case involves a typicalbrain injury situation, plaintiff striking his headafter he fell off a scaffold, into which defendant'struck had run. A Professor P., an expert at makingan electrical diagnostic test on an EEG,4 5 testifiedthat he made such test on the plaintiff and that itreflected brain damage. He also stated that he wasnot a neurosurgeon and could not say what mighthave caused the brain damage. The EEG testi-mony was admitted. Plaintiff had intended to puton a neurosurgeon, but never got around to it.However, a medical doctor on behalf of plaintiffdid testify that as a result of the fall plaintiff wasrendered unconscious, that he did foam at themouth; that he remained unconscious for six hours;that as a result of the accident plaintiff sufferedfrom headaches and loss of memory and that hedid have a brain concussion. The Texas court, inupholding the right to have the EEG received inevidence on the theory that the EEG findings werecompatible with the doctor's observations, -con-cluded:

"Consequently, the electroencephalogramhaving been identified as that of the plaintiffand offered by a competent witness, and therebeing supporting testimony that plaintiff hadsustained a concussion in the fall, the jury wereentitled to consider the testimony." 46

An analysis of these decisions would seem to in-dicate a rather liberal attitude on the part of thecourts in admitting the results of EEG tests incivil cases. Will the same principles apply in crim-inal cases on the issue of criminal responsibility?

Use in Criminal Cases: The admissibility of theEEG on the issue of criminal responsibility wasconsidered for the first time by an appellate courtin State v. Shiren,47 decided in 1951. The accusedwas indicted and convicted of an assault andbattery and causing death by reckless driving of anautomobile. The state contended the defendantwas intoxicated. The accused's defense was illness,which caused him to "black out", and defendantoffered to prove that his doctor performed an EEGon him; that an EEG discloses any abnormalitiesin brain wave pattern and ordinarily will revealwhether one has suffered a stroke depending upon

- 315 S.W. 2d- 177 (1958).45 The opinion does not indicate whether the expert

was a medical doctor.46 Ibid., S.W. 2d. cit., p. 184.4 15 N.J. Super. 440, 83 A. '2d. 620 (1951).

the part of the brain wave involved; that defend-ant's doctor had obtained EEG results whichwould indicate a brain disease. The trial court re-jected such offer of proof. The Superior Court ofNew Jersey, Appellate Division, held that theexclusion of the offered medical testimony as to theresults of the EEG was erroneous and affecteddefendant's substantial rights.

From the standpoint of criminal responsibility,State v. Piggle,48 is important. In a Wyoming pros-ecution for murder, defendant entered a plea ofinsanity. Pursuant to the statute, the court di-rected defendant to be taken to the state hospitalfor mental examination. He was subsequentlytaken to the office of Dr. P., a neurologist andneurosurgeon, Salt Lake City, Utah, where Dr. P.took an EEG of the accused while the latter wasawake. There were no facilities for taking an EEGin Wyoming at that time. Dr. P. testified that thetest showed no abnormality. He admitted that thetest was better while the patient was asleep, buthe concluded that taking the test while the accusedwas awake made no difference in this case. Theappropriate hypothetical question put to the doc-tor included the findings of the EEG. The doctorconcluded the accused was sane.

Defendant objected to the EEG test on theground that it should have been given while he wasasleep, but the court held there was sufficientevidence beside the EEG to warrant a conviction.As to defendant's complaint that he should nothave been taken out of the state for the purpose oftaking the EEG, the Wyoming court held that de-fendant's lack of objection to the EEG test was awaiver and that the test was actually taken for thebenefit of defendant. The court also held thatsuch taking of the test did not violate the FifthAmendment, and that the physician-patient privi-lege did not apply because the doctor was notaccused's physician.

This case sustained the use of the BEG to provethat the defendant was sane, although experts forboth the state and defendant relied on EEG find-ings.

Although the authorities in the criminal field

11298 P. 2d. 349 (Wy. 1956), rehearing denied 300 P.2d. 567 (Wy. 1956), cert. den. 352 U.S. 981, 77 S. Ct.384, 1 L. Ed. 2d. 366 (1957).

In the recent case of State v. Goza, 317 S.W. 2d.609 (Mo. 1958) both the state and defense experts reliedon EEG tests. Defendant was convicted. The SupremeCourt of Missouri affirmed without discussing theevidential aspects of the EEG, although it refused toaccept as conclusive the defense medical testimony thatthe EEG showed brain damage.

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ELECTROEXCEPItALOGRAPII AS EVIDENCE

are few in number, one can conclude that the EEGhas been accepted as a scientific instrumentalityof proof on the issue of criminal responsibility.Obviously, in considering the admissibility of anEEG in a particular case, the court must considerthe limitations of the EEG. If they are substantial,then the evidence is incompetent; if trivial or ofminor consequence, the courts will undoubtedlyadmit the evidence and instruct the jury that thelimiting factors may affect the weight of such proof.

The writer's general conclusions with respectto the use of the EEG have been supported by avery recent decision of the Wisconsin SupremeCourt in the case of State v. Carlson.49 Carlson hadbeen convicted of arson and third degree murder,as the result of the arson. Carlson's plea in eachcase was not guilty by reason of insanity. Thearson and murder cases were tried together. Thedefendant, while awaiting trial, was tested at hisown request by means of an EEG. At the trial Dr.D., who took the test, was called as a witnessonbehalf of the defendant.

Upon objection by the state to any testimony byDr. D. as to the results and interpretations of thetest, defendant, in the absence of the jury, offeredto prove that Dr. D. did make the test; that Dr. D.made an interpretation of the test; that the EEGpattern showed a brain abnormality that wasprobably of organic origin, resulting from braintrauma; that Dr. D. could not state from herfindings that the defendant did not know the differ-ence between right and wrong; that the findingsdid not indicate any mental disease in Carlson;that disturbances of the type she found in Carlsonare found in individuals who have an organic con-dition acquired early in life from one of severalcauses plus emotional background consisting of in-stability of the individual's environment; thatsuch a person has an impulse to carry out the actand has no control; that he will carry out the actto completion because he has no control; and thatthe EEG tracings arise from the organic cause andthat the emotional factors cause the rage reaction;that these individuals do not have normal control.

The trial court sustained the state's objectionsupon two grounds: (1) The results of the tracingwould be of no probative value except preliminaryto further testimony; and (2) that if the findingstended to prove that any misconduct of defendantwould be attributable to irresistible impulse ratherthan lack of ability to distinguish between rightand wrong, her testimony would not be relevant

9 93 N.W. 2d. 354 (Wis. 1958).

to the issue of insanity, since Wisconsin followsM'Xaghten. Upon appeal the Wisconsin SupremeCourt held:

1. The results of the EEG tests, standingalone without other medical testimony, are ofno probative value. The court pointed out thathere there was no medical opinion offered, basedon the EEG, the facts as to defendant's back-ground and early life, and circumstances of thealleged offense, as to defendant's mental ca-pacity or condition at the time of the offense,defendant then being 17 year's of age.

2. The results of the EEG test, if properlysupported by medical opinion, are admissibleon the issue of insanity even in a M'Naghtenstate, if they reasonably tend to show the mentalcondition of the defendant at the time of theoffense.In reaching its conclusions, the court makes no

reference, whatsoever, to any authorities on thesubject.

SUMMARY

On the basis of the cases decided by the appellatecourts to date, we may say with absolute con-fidence that the EEG, when used to prove or dis-prove organic brain damage or epilepsy, has passedthe test established by the Frye case. 0 Certainly,we may say that for this particular purpose theEEG has "gained general acceptance in the par-ticular field to which it belongs". However, theEEG, though persuasive, does not ipso facto proveor disprove organic brain damage or epilepsy and,by inference, sanity or insanity. The EEG is onlya diagnostic tool used by the medical man to reacha preliminary conclusion whether there is or is notorganic brain damage or epilepsy, and a final con-clusion whether the individual is sane or insane.The observer medical witness must still rely onhis general observation and examination of thepatient, who, as the psychiatrists say, must be con-sidered as a whole. The pure expert, basing hisconclusions not on observed facts but upon factsassumed in a hypothetical question, must arriveat his opinion on the basis of all the evidence per-tinent to a particular hypothesis, including theresults of an EEG test. In other words, the EEGcan only be interpreted with the aid of case his-tories and clinical findings.

Moreover, the EEG merely proves that therewas or was not organic brain damage or epilepsy

0 Frye v. United States, 293 Fed. 1013,* 1014(C.C.A., D.C., 1923).

EDWIN C. CONRAD

in the case of a particular individual. Here againto reach the conclusion or opinion that a particularindividual was sane or insane, the opinion of themedical man will have to be based on proven casehistories and clinical findings of the individual, in-cluding the results of the EEG studies. Obviously,as appears from our study of the English cases, thefindings of the EEG have a very persuasive effectupon the jury.

We have a more serious legal problem when weconsider the EEG findings to prove or to disprovea claimed functional psychiatric disorder, as dis-tinguished from organic brain damage or epilepsy.The disagreement among the medical authoritieshas already been noted and in itself should besufficient reason why EEG results as to functionalpsychiatric disorders should be excluded, untilsuch time as such test is generally accepted in thefield. We know that many of our criminals arepsychopaths suffering from afunctional and not anorganic, disorder.5' For this reason alone, the courtsshould exclude EEG tests to prove functional dis-order, until such time as the scientists themselvescan agree on their value in this field. It should bepointed out that none of the courts has consideredthis specific problem.

Assuming that in general an EEG test is ad-missible, certain preliminary requirements mustbe satisfied. The general principles and reliabilityof the EEG need not be proved by expert testi-mony, as the court will take judicial notice of them,if the view of the New York courts is accepted ascontrolling. The test must be identified as beingthose of the particular individual involved and

11 See SULTHERLAND, EDwiN H., AND CRESSEY,

DONALD R., PRINCIPLES OF CRIMINOLOGY, pp. 117-137(5th Ed. Lippincott Co., N.Y., 1955).

must be authenticated. Authentication includesproof that the machine was properly calibrated,in proper functional order, and manned by compe-tent operators. A properly trained technicianmay make the test and may testify as to the sig-nificance of the findings. However, a medical manis still necessary to interpret the findings with refer-ence to the particular individual involved, as thatis a medical question. A doctor, under whose direc-tion and supervision an EEG is taken, can authenti-cate such graphs, without calling the technician.Under some decisions EEG records made in theregular course of business are admissible under theregular entry statute.

It is very apparent, on the basis of past de-velopments, that the EEG will continue to assumea dominant role in the trial of criminal cases inwhich the issue of insanity is in the picture.

Several questions are raised by this study. Thereis an indication in the literature that the EEG isuseful in determining barbitrate intoxication.52

Might not experimental studies be made to deter-mine whether the EEG could be of help in deter-mining alcoholic intoxication and whether theEEG may be used in conjunction with other ma-chines now in general use in the field, such as theHarger Drunkometer, the Intoxicometer, theAlcometer, and the Breathalyzer?

It also seems quite logical to suggest that brainwave patterns of persons subjected to the standardlie detection tests now in use should be studiedon an experimental basis to determine whetherthere is any correlation between conscious decep-tion and the form of the brain wave.

12 Note 23, supra.

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