Traumatic Brain Injury and Confabulation in Criminal Justice and Legal Settings: A Brief Review for Caregivers and Professionals

By Jerrod Brown, Ph.D.

Confabulation refers to the unintentional recollection of false memories, including elaborations or embellishments that can range from subtle to delusional in nature. Confabulations may be verbal or nonverbal; verbal confabulations occur when an individual articulates a false memory (often experiencing real emotions in response to the false memory), whereas nonverbal confabulation occurs when that individual acts on a false memory. Inspirations for the false memories found in confabulations can come from a variety of sources, including peers, television, movies, and social media. By understanding diagnostic groups at risk for confabulation, criminal justice and forensic mental health professionals can more effectively assist, interact, and communicate with individuals prone to confabulate. One such group is persons who have sustained a Traumatic Brain Injury (TBI).

The frontal brain damage resulting from TBI is believed to be one cause of confabulation. The prefrontal cortex is responsible for executive functions, including attention, planning, problem-solving, decision-making, working memory, and inhibition. When executive functioning is impaired, the prefrontal cortex does not communicate properly with the limbic cortex, which is responsible for encoding and retrieving memories as well as emotion regulation. This can result in autobiographical (memories of life experiences) as well as source monitoring (verification of knowledge) deficits, which reduces the constraint between one’s knowledge base and one’s current goals (e.g., escaping a stressful situation). Confabulation results when monitoring deficits overpower the frontal lobe’s ability to check the veracity of memories and, hence, the brain fills in gaps in memory with false information to maintain a coherent image of reality. Many other causes and contributing factors for confabulation have been proposed in the peer-reviewed research literature, such as:

• Confusion
• Deficits in Self-Initiated Processes
• Executive Functioning Deficits
• Frontal Lobe Damage
• Impaired Memory Function
• Memory control retrieval deficits
• Preserve a Sense of Self-Identity and Self-Esteem
• Provoked through High Stress Interviews
• Source-Monitoring/Reality Monitoring Failures
• Temporal Confusion
• Various Cognitive Impairments

The presence of TBI-induced confabulation can result in significant legal problems due to inaccurate information being collected during criminal justice and forensic-based interviews. These impairments and limitations can impact suspects, defendants, incarcerated individuals, victims, witnesses, and family members. Considering the fact that TBI is extremely common among individuals involved in the criminal justice and forensic systems, it is likely that professionals working in these settings will encounter clients who confabulate on a semi-regular basis. As such, it is imperative for criminal justice and forensic mental health professionals to increase their awareness and understanding of the impact that TBI and confabulation have on individuals.

What legal issues can result from TBI-induced confabulation?

• Waiving Miranda Rights
• Police Interrogations (incl. False Confessions)
• Entering Pleas
• False Allegations
• Competency to Stand Trial
• Providing Testimony (incl. Eyewitness Suggestibility)
• Serving as a Witness
• Court-Ordered Treatment
• Victimization During Incarceration
• Offender Reentry (incl. Probation and Parole)

Although intentional deception is commonplace in the investigative interviewing process, the unintentionally false recollections of persons who confabulate pose a unique challenge for forensic mental health, criminal justice, and legal professionals. Specifically, such persons are at risk for producing false witness accounts, alibis, and even confessions that can lead to wrongful prosecution and conviction. In addition to problems during the interviewing process, persons with a TBI who confabulate may also be less able to participate effectively in their own defense, possibly resulting in a judgment that they are incompetent to stand trial. As confabulation can be a persistent problem depending on the severity of brain damage along with other individual, cognitive, and social variables, incarcerated individuals impacted by TBI who confabulate may also have an increased need for supervision and a reduced ability to live independently following release, suggesting likely continued involvement in the criminal justice system. This is especially the case when such issues have not been properly identified and treated.

Given its unclear etiology, the presence of multiple definitions, and its association with a range of neuropsychiatric conditions, valid and reliable screening and assessment procedures for confabulation are critical. Failing to utilize such evidence-based procedures can result in inaccurate diagnoses and ineffective interventions which may even exacerbate underlying conditions. This process can be a frustrating one for forensic mental health and criminal justice professionals, as they may not know whether previous diagnoses in clients’ medical records are correct or whether clients’ recall is the result of unintentionally recalling inaccurate memories (confabulation) or intentionally doing so for primary gain (malingering). This is particularly the case because individuals who confabulate may refuse to comply with treatment requirements, as they do not recognize the falseness of their memories. Continuing education on TBI and confabulation and its consequences can help ameliorate these feelings of frustration such that the therapeutic alliance is not negatively impacted.

What intervention strategies can be used to help an individual who is found to confabulate?

• Avoidance of confrontation
• Avoidance of leading questions
• Avoidance of memory overload
• Avoidance of sensory overload
• Checking for comprehension
• Minimize stress for the impacted individual
• Provide family support and education
• Reassurance that it is acceptable not to know an answer
• Teaching reality monitoring techniques
• Teaching self-monitoring techniques
• Tolerance of extra processing time
• Tolerance of long pauses and silence
• Treatment of underlying mental health conditions
• Treatment of underlying physiological conditions
• Use of a memory diary
• Use of a slow-paced interview format
• Use of collateral sources to confirm self-report
• Use of developmentally appropriate language
• Use of open-ended questions

To ensure the accurate communication of personal and medical information to mental health and criminal justice professionals, individuals with TBI who confabulate require the presence of a strong support system. This support system increases the reliability of the information collected following the documented self-reports of the client. It is important for professionals to keep in mind that, just like themselves, family members confronted with a loved one’s confabulations may feel distrustful of the individual due to the interpretation of the confabulations as willful attempts to be deceptive. Explaining to them that these inaccurate memories are unintentional, and the consequence of psychological and neurological deficits, is of paramount importance.

Individuals with TBI often present with a wide-array of needs and limitations. When confabulation is present, such needs and limitations may be exacerbated and can significantly impact recovery, screening and assessment, and intervention and treatment planning. 

What are the screening considerations for TBI and confabulation?

• Abstract & Sequential Thinking
• Adaptive Behavior (communication, social skills)
• Attention/Hyperactivity
• Executive Functioning
• History of Trauma
• Issues Sleeping
• Learning Capabilities
• Memory
• Motor Skills
• Reality Monitoring
• Receptive & Expressive Language
• Sensory Processing
• Social Skills
• Source Monitoring
• Suggestibility

In some instances, depending on the level of brain damage and severity of confabulation, the impacted individual may require additional supports, services, and monitoring to ensure safety and follow-through with his or her daily life affairs. If, during the screening and assessment process, confabulation is suspected, professionals need to remember that confabulation can also present in several other clinical conditions, including Alzheimer’s Disease, Amnesia, Dementia, and others. Referral for neurological or psychological testing may also be needed as testing results can provide valuable insight into which specific areas of the brain are most impacted.

About the Author:

Jerrod Brown, Ph.D., is Assistant Professor, Program Director, and lead developer for the Master of Arts degree in Human Services with an emphasis in Forensic Behavioral Health for Concordia University, St. Paul, Minnesota. Jerrod has also been employed with Pathways Counseling Center in St. Paul, Minnesota, for the past fifteen years. Pathways provides programs and services for individuals affected by mental illness and addictions. Jerrod is also the founder and CEO of the American Institute for the Advancement of Forensic Studies (AIAFS), the editor-in-chief of Forensic Scholars Today (FST), and a Youth Firesetting Prevention and Intervention (YFPI) Mental Health consultant for the Minnesota Department of Health (MDH). Jerrod is certified as a Youth Firesetter Prevention/Intervention Specialist, Thinking for a Change (T4C) Facilitator, Fetal Alcohol Spectrum Disorders (FASD) Trainer, and a Problem Gambling Treatment Provider. Jerrod has completed four separate master’s degree programs and holds graduate certificates in Autism Spectrum Disorder (ASD), Other Health Disabilities (OHD), and Traumatic Brain Injuries (TBI). Jerrod has published numerous articles and book chapters, and recently co-authored the book Forensic Mental Health: A Source Guide for Professionals (Brown & Weinkauf, 2018) with Erv Weinkauf. Click here to contact Jerrod.