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.

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INTRODUCTION

Few people have read or watched the film adaptation of The Diving Bell and the Butterfly without proclaiming it a triumph of the human will. Jean-Dominique Bauby authored the memoir after suffering from a major stroke that left him paralyzed from head to toe with minor exception, but with his mental capacities intact. He did so through a novel form of dictation. Slowly and repeatedly a transcriber recited a French language frequency-ordered alphabet, to which Bauby communicated his story through the blinks of his one working eye. When the transcriber reached the letter of the word Bauby wished transcribed, he blinked once. He signaled the end of a word with two eye blinks, and used rapid eye blinks to communicate that she had guessed a letter or word ending incorrectly. Letter by letter, blink by blink, Bauby conveyed his thoughts to the transcriber. 200,000 blinks later, the story was done. His memoir provides the gripping detail of what it means to have full mental capacity and lack freedom of action to express one’s thoughts, desires, emotions, and expressions of humanity. That he could share his story is at once extraordinary and tragic that anyone should suffer the fate of such obstacles to effectuating his will.

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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.

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I. THE ROLE OF INTENTION IN ASSESSING RESPONSIBILITY IN LAW AND MORALS

The concept of an intention lies at the heart of the attribution of both moral responsibility and legal liability in the law of torts and of crimes. It does so in two ways. The first is as a marker (arguably the marker) of serious culpability in the doing of wrongful actions. As both the law of crimes and of torts recognize, doing some wrongful action because one intended to do it merits greater blame and more severe sanctions than does doing that same wrongful action recklessly or negligently. This implication of intention for responsibility is learned early on by children, who frame serious accusations of others in terms of their doing things “on purpose.” As Justice Holmes famously put it, “even a dog knows the difference between being stumbled over and being kicked.” Criminal law shares with dogs and children this emphasis on intention as essential to serious blame. As the U.S. Supreme Court once put it, “The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is…universal and persistent in mature systems of law…[and] is almost as instinctive as the child’s familiar exculpatory, ‘But I didn’t mean to’…”

The second way in which intention figures into attributions of responsibility has to do with wrongdoing rather than culpability. To do wrong is to act in a way that morality or the law prohibit, and intentions are at the root of action and agency. The very possibility of persons doing actions depends on persons having intentions. The old way of putting this was to say that “every action must be intentional under some description of it.” A more modern rendition is to say that every action begins with an intention, in the sense that intentions must be the immediate cause of those bodily movements through which persons act, for those movements to be actions at all.

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