CTE Concussion Defense

You’ve heard about a variety of defenses raised in criminal prosecutions. Some of them consist merely of evidence that the defendant did not commit the crime charged. An alibi is an example. Some other defenses, however, admit that the defendant committed the act, but assert that he is entitled to an acquittal for one of a variety of reasons. Those reasons include, among others, that the defendant (a) acted in self-defense, (b) was induced by law enforcement to commit an act (entrapment), (c) was under duress, or (d) was insane. In recent times, a new defense has arisen. It’s based on a condition known as CTE.

What is CTE?

Over the past several years, we have been reading more and more reports about brain damage caused by repetitive blows to the head. The reports tend to focus primarily on sports such as football and boxing. The condition now has a name – Chronic Traumatic Encephalopathy, also known as CTE. It is classified as a disease of the brain, which is progressive and degenerative, occurring in people with a history of brain trauma, including concussions. According to medical experts, CTE leads to confusion, memory loss, problems with impulse control, aggressive behavior, and dementia.

The degeneration of the brain is thought to be linked to the build-up of “tau’” an abnormal protein, which then destroys healthy brain cells and impairs the functioning of the brain. Although the specifics have only recently been identified, the condition is not all that rare. Those affected by the condition include many famous football players: Ken Stabler, Earl Morrall, Frank Gifford, Junior Seau, Ollie Matson, and more. You may notice that all those listed have died. That’s because as of the present time, the only conclusive evidence of the condition is found through a post-mortem examination of the brain. Nevertheless, the condition can be diagnosed in people who are still alive.

How Can CTE Provide a Defense in a Criminal Case?

The ways in which CTE may figure in a criminal case are interesting. While the condition would not necessarily support an insanity defense (although in extreme cases that may be possible), the symptoms, among them impulse control, unintended aggression, and confusion, could provide a defense in a case that requires specific intent. In addition, depending a defendant’s mental condition, he may be deemed incompetent to stand trial. A recent example is unfolding in a case pending in Pennsylvania.

Former professional wrestler Jimmy “Superfly” Snuka was charged last year with manslaughter in connection with the death of his girlfriend, who died in 1983 from head injuries. No foul play was suspected until an old autopsy report surfaced a few years ago that suggested possible abuse. Snuka’s lawyers said that for decades, their client was banged around in the ring. Their medical expert testified that the history of repeated head trauma caused severe dementia, and that the 73-year old Snuka was unaware that he was charged with homicide. The judge agreed, and determined that Snuka, at least at this time, is incompetent to stand trial.

So in Snuka’s case, as a technical matter, CTE is not a defense. But the condition has led to a finding of incompetency to stand trial, which means generally that he is unable to understand the charges against him, and is unable to assist in his own defense. As long as that decision stands, the case against Snuka will not move forward.

George Vomvolakis Law Offices
275 Madison Avenue
New York, NY 10016
(212) 682-0700