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Epilepsy Defense Reconsidered

NCJ Number
Criminal Law Bulletin Volume: 33 Issue: 4 Dated: (July-August 1997) Pages: 328-351
I J Ozer
Date Published
24 pages
Defendants with epilepsy are discussed with respect to the defenses currently available and the reasons for the need for a separate epilepsy defense in criminal cases.
Current defense options include the unconsciousness defense, the insanity defense, the diminished capacity defense, and the defense of guilty but mentally ill. These alternatives all entail the requirement that the defendant committed the crime during the course of a seizure. However, medical research offers strong indications that an epileptic may experience uncontrollable aggressive impulses between seizures. Thus, a separate epilepsy defense would conform to the medical realities of epilepsy. The new epilepsy defense would have three elements: (1) expert testimony from both prosecution and defense witnesses regarding hard evidence of seizures; (2) expert testimony showing that the defendant's type of epilepsy affects the limbic region of the brain, which influences emotion and impulses; and (3) testimony from lay witnesses regarding acts of violence during at least one of the defendant's seizures. Some of the potential problems related to such as defense are the potentially increased stigma attached to epilepsy, concern regarding feigned epilepsy, and the release of defendants who are not guilty by reason of epilepsy. However, the rights of the epileptic defendant to a fair trial should override the concerns of epilepsy advocates regarding increased stigma. Footnotes and appended list of criminal cases involving epilepsy


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