Brain Imaging in the Courtroom: The Quest for Legal Relevance

Abstract

This article addresses the question of the relevance of brain imaging to legal criteria that are behavioral, that is, that require evaluation of a defendant's actions or mental states. It begins with the legal standard for the admissibility of scientific and technical evidence. Then it considers the relevance of imaging to behavioral legal criteria. The problem is translating mechanistic neuroscience data into the law's folk psychological standards. It uses examples from the criminal law, but the analysis generalizes to behavioral criteria in the civil law. The central question is, “How, precisely, does the proffered scan or data based on scanning answer the specific legal question it supposedly helps answer?” I conclude that, at present, brain imaging has little relevance to behavioral legal criteria. The final section takes note of a rampant disorder, brain overclaim syndrome, and offers a remedy, cognitive jurotherapy.

Keywords:

• neuroimaging
• law

Notes

The Federal Rules of Evidence are controlling in federal civil and criminal cases. Although they are not binding on the states, many states have followed these rules when adopting their codes of evidence. Some states evaluate the admissibility of expert evidence based on a test that asks whether the proffered evidence has gained “general acceptance” by at least a substantial minority of the relevant discipline. In effect, the federal test makes the judge the gatekeeper, whereas the alternative rule defers that role to the relevant discipline. My analysis uses the Federal Rules.

Paradoxically, however, neuroscientists frequently write dualistically by suggesting that regions of the brain are little homunculi that do things and that there seems to be a struggle between the self and the brain as an independent agent (Mudrik and Maoz 2013).