by Owen D. Jones, Joshua W. Buckholtz, Jeffrey D. Schall and Rene Marois
It has become increasingly common for brain images to be proffered as evidence in civil and criminal litigation. This Article offers some general guidelines to legal thinkers about how to understand brain imaging studies--or at least avoid misunderstanding them. And it annotates a published brain imaging study by several of the present authors (and others) in order to illustrate and explain, with step-by-step commentary.
by Teneille Brown and Emily Murphy
Teneille Brown and Emily Murphy, the Symposium's first speakers, will be presenting their arguments against using neuroscientific evidence in courts. Panelists Michael Saks and David Faigman will be commenting. See below to read the abstract.
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In this paper we will demonstrate that functional brain images should not be admitted into courts to prove criminal mental states. We will do so by walking through each step of the imaging methodology in plain terms, making it clear why the brain images are minimally probative when introduced to prove a defendant’s past mental state, and almost certainly more prejudicial than probative on balance. Functional images are also neither generally accepted nor scientifically valid for this purpose. So, given that functional brain images do not meet any of the relevant evidentiary standards, why would they be admitted at all during the guilt phase to prove mental states? Possible answers to this question range from the ordinary human error and legal bias, to improper authentication of the images and commercial scientists pushing their wares. Put simply, the adversarial process may not always work properly to keep the junk out.
In Section I of this article, we laid out the terrain of how exactly functional brain imaging is being used in courts to negate mens rea and what this means for the criminal law. In Section II, we will look closely at the science behind functional neuroimaging, specifically functional magnetic resonance imaging (fMRI). In so doing we will critically examine the complex and unobvious steps required to produce the colorful brain images. In Section III we will apply the rules of evidence to the scientific findings from Section II, and will reveal why any marginal probative value may be substantially outweighed by the potentially prejudicial effects of brain images, even if other admissibility hurdles are cleared. In the event that the technology advances such that its prejudicial value can be sufficiently mitigated, in Section IV we will suggest some guidelines for properly assessing its evidentiary value.