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“And I See Through Your Brain”

Access To Experts, Competency To Consent, And The Impact Of Antipsychotic Medications In Neuroimaging Cases In The Criminal Trial Process

By Michael Perlin

Last fall, I presented a paper at a conference on neuroimaging and the law looking at the way jurors were likely to construe neuroimaging evidence in insanity defense cases. I tried to balance jurors’ likely positive response to the perceived characteristics of this evidence—vivid, objective, quantifiable, advanced—with their likely negative response to the use of this evidence in such cases (reflecting their prejudice, hostility, and hatred toward insanity pleaders)—and concluded that I was “not at all sure that the pizzazz of neuroimaging testimony—not withstanding its colorfulness and its propensity to reductionism—will trump these deep-seated attitudes.” In short, I sought to make the point that the science of neuroscience has to be assessed in the sociopolitical context of the specific question of law that is central to the specific case before the court.

Again, as I stressed in my earlier article, the reality is that neuroimaging is fraught with uncertainties, that the steps used in the production and presentation of neuroimaging evidence are “[n]ot only . . . not standardized, they are easily manipulated by a person with knowledge of the technology.” Some researchers characterize neuroimaging evidence as “indistinct.” Amanda Pustilnik, by way of example, concludes that “neuroscience cannot provide complete, or even sufficient, explanations of criminal violence by reference primarily to purported neurobiological dysfunctions within isolated parts of offenders’ brains.” Other scholars charge that “researchers, clinicians, and lawyers are seduced into becoming true believers in the merits of [brain imaging] for understanding the relationship between brain and behavior.” Stacey Tovino argues that the fMRI offers only “illusory accuracy and objectivity.” But what is clear is that the existence of neuroimaging techniques has changed the contours of the playing field, and no matter which side of the divide we find ourselves on, we must acknowledge that reality.

With this as backdrop, I turn to the topic that I have taken on for this article: what impact neuroimaging evidence will have on a series of “criminal procedure situations,” the resolutions of which are inextricably intertwined with pre-existing socio-political views and attitudes of judges and jurors: (1) the implications of Ake v. Oklahoma (an indigent defendant’s access to expert testimony) in cases where neuroimaging tests might be critical; (2) the defendant’s competency in consenting to the imposition of a neuroimaging test or examination; and (3) the impact of medications—specifically, antipsychotic medications—on a defendant’s brain at the time that such a test is performed. I hope that this article spurs some additional hard thinking about this topic.

Posted in Articles.

November 13, 2009 Cite: 2009 Stan. Tech. L. Rev. 4


2 Responses

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  1. robert weisberg says

    In his fine paper on consent and competency issues in regard to brain-imaging, Prof. Perlin suggests some possible analogies to cases like Schmerber v. California, where various specific procedural rights­4th amendment, 5th amendment, are considered (and then tossed)­in the context of drunk driving. But Prof. Perlin then stresses general due process as the liekly ruliong principle for the brain-imaging issues. I think he’s right to do so, but I think it may be worth playing out some more specific analogies to 4th, 5th, and even 6th amendment doctrines just to illuminate the issue more. Ther are various vserrions of the privleghe against self-incrimination that might be useful. And although this may seem fancful, some of the fourthh amendment issues involving high-tech devices fior procuring private information through the walls (literal and figurative) of zones of privacty may also be interesting to apply. I will do so in my panelist comments.

    A second point: It’s interesting that the law is somewhat settled for competency issues in terms of psychiatric exams–or at at least the issues are heavily litigated. And Prof. Perlin rightly notes that no such legal analsys has yet emerged for brain-imaging. This is partly because of a historical lag, but it’s still curious that in some ways the well-developed doctrine on the psychiatric interview might suggest that we all have a great deal of faith in the accuracy and reliability of the psychiatric interview. But that is hardly the general view of psychiatry in the courtroom, at least in terms of NGI verdicts, and it would be odd if we avoided the imaging context because the science is too uncertain, ­as if we were confident that the old psychiatry is “certain.”

  2. Saqib Ali says

    Professor Erin Murphy’s response to Professor Perlin talk was excellent. Do listen to the audio when it is available on the website.