Inside the Law: CTE as a Defense

August 30, 2018 - 3:00 am

By Amy E. Feldman, Judge Technology Solutions​

PHILADELPHIA (KYW Newsradio) -- Can CTE be used as a defense to a crime? 

Kellen Winslow, Jr. was an All-American tight end in college and went on to a ten-year NFL career. He's now facing several felony charges, including burglary and multiple rapes in California. 

Winslow's attorneys are expected to argue that he suffers from chronic traumatic encephalopathy, CTE, a brain condition caused by repeated football trauma. Is that a defense to a crime? A get out of jail free card, if you will? 

California law allows criminal defendants to present evidence of what's called "diminished actuality," a defense that says that because of a mental impairment, the defendant lacked the intent to commit the crime. 

CTE is linked to aggression and impaired judgment, but it can only be conclusively proved in an autopsy. Even if he can prove that he has CTE symptoms, and even if the jury believes that he suffers from CTE and has difficulty controlling his impulses or erratic behavior, that's not enough. He'd still need to convince a jury that he couldn't even form an intent to commit a crime so using it as a defense will be an uphill battle.  

That said, like the proliferation of CTE lawsuits, you can expect to see more criminal cases involving the effects of CTE. Always wear your helmet kids.