Neuroimaging in the Courtroom: Promises and Pitfalls

by Zachary Shapiro

This is the first post of two that will discuss the use of neuroimaging in the courts. The first piece will talk about a few promising avenues of future research, while the second piece will discuss some of the pitfalls.

Mapping the brain is the next great frontier for scientific research. The recent decision by President Obama to initiate the Brain Activity Map, directing federal funding to a project with the aim of creating a working “map” of the human brain, highlights how our understanding of the brain will increase in the coming years.[1] As our understanding of the brain increases, many institutions will face difficult questions about how such understanding should change long held practices. An excellent example of an institution that has been, and will continue to be, shaped by advances in neuroimaging is the American criminal justice system.

Neuroimaging initially was deployed as a way to detect anatomical abnormalities, such as tumors and strokes, in the brain. The rise of functional neuroimaging, using modalities such as fMRI, PET Scans, and EEGs, has allowed scientists to begin to picture how the brain works in real time. As the field advances, neuroimaging is finding applications in areas that seem to be totally separate from medicine.

Neuroimaging has already made its way into the courtroom, and theoretical and immediate uses abound, especially for criminal law. Criminal law traditionally focuses on the mens rea, or guilty mind, of the defendant. Theoretically, neuroimaging could help us understand the complex neurological pathways that produce certain behaviors, while determining what factors are at play in a given “guilty mind.”

Neuroimaging could help in the assignment of fault, as better understanding of an offender’s mind could elucidate what biological and neurological processes are involved in an individual’s decision making. Researchers theorize that neuroimaging could also help predict recidivism, as the brains of serial offenders can provide a road-map into what a “criminal brain” may look like. Neuroimaging may one day also play a role in lie detection, jury selection, the decision of whether or not to grant parole, and how brain damage or altered brain states could produce criminal behavior. [2] [3]

There are implications for punishment as well. Neuroimaging theoretically could enable us to design responses to criminal behavior that will more effectively deter, punish, and rehabilitate the offender, as necessary. Neuroimaging may eventually allow us to better tailor punishment so as to rehabilitate offenders by treating underlying neurological issues that may be responsible for anti-social behavior. In the field of capital punishment, neuroscientific evidence may be able to help us improve (or finally end) a process that is riddled with defects. [4] Conversely, defendants could introduce neuroimaging data to support a lack of culpability by reason of a neuroimaging finding, or to suggest that they do not have a characteristic neuroimaging finding associated with commission of a particular crime, and therefore to argue for reduced sentencing.[5]

Despite the promises of neuroimaging, this issue demands careful study to properly apply it to a field as important as criminal jurisprudence. There are, at present, many serious limitations of our understanding and utilization of neuroimaging, that prevent it from being neatly or justly applied in the courtroom at this early date. While neuroimaging may eventually improve decision-making in the courts, we must remember that this is a nascent field where our understanding is still catching up to the technology. My next blog post will explore some of the limitations of neuroimaging, so that the promises of neuroimaging can be tempered with appropriate enthusiasm, allowing any potential improvements to be implemented ethically.

[1] Obama seeking to boost study of human brain. Markoff J. The New York Times. 2013.

[2] Brain Imaging and Courtroom Deception, Rebecca Dresser, Hastings Center Report, Volume 40, Number 6, November-December 2010, pp. 7-8

[3] Functional Neuroimaging and the Law: Trends and Directions for Future Scholarship. Stacey Tovino. The American Journal of Bioethics. 2007.

[4]Neuroimaging and the “Complexity” of Capital Punishment, O. Carter Snead, 82 N.Y.U. L. Rev. 1265. 2007.

[5] Neuroimaging, Entrapment, and the Predisposition to Crime. Carter Sneed. The American Journal of Bioethics. 2007.

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