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Copyright (c) 1999 St. Thomas Law Review
St. Thomas Law Review

COMMENT: Incompetence in the Brain Injured Individual

Fall, 1999

12 St. Thomas L. Rev. 205


D. Michael Bitz, M.D. and Jean Seipp Bitz, M.D. *



There are forms of incompetence that much like insanity, the legal system has been slow in recognizing. These forms may render individuals currently in the penal system incompetent. This impacts not only their ability to stand trial but also raises the issue of subsequent civil incapacitation. The purpose of this article is narrow, we are looking at a small group of physical factors that appears to influence the occurrence of criminal behavior. This comment will correlate the recent advances both technologically and in the understanding of neurological functions that have occurred in the field of medicine with current concepts and dogma which are present in the legal system. We are not attempting to evaluate all biological, sociological, or psychological factors that influence the occurrence of criminal activities.

Criminal law has been described as the expression of the moral sense of the community 2 and involves both an actus reus (the criminal act) and a mens rea (the criminal mind). Morality concerns the correctness or wrongness of an action and includes any distinctions between these categories as intended by the society that is making the determinations. In the realm of criminal law, society looks beyond the commission of a wrongful act and considers affirmative defenses of justification or excuse that may relieve an actor of his inherent responsibility for the wrongful action. 3 Justification for an action will negate the wrongfulness of the action, which has traditionally been viewed as being a crime, 4 for example a killing ...
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