Abstract
The data discussed strongly suggest that neural imaging does not unduly sway judges and jurors; in fact, it is often counterproductive. The percentage of appellate cases in which the decision was favorable to defendants with brain scan data mirrored those of decisions without such proffered evidence. Moreover, fully two-thirds of the scans admitted were either inconclusive or showed normal brain structures. In decisions referencing brain scans, judges mentioned defendant behavior significantly more often than they referred to the defendant’s brain. Finally, in the actual decisions themselves, judges often ignored relevant imaging data in favor of case precedent or misinterpreted the data so that they would fit with the judges’ initial reactions and opinions.
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- 1.
Kristen M. Nugent, “Practical Legal Concerns,” in Neuroimaging in Forensic Psychiatry: From the Clinic to the Courtroom, ed. Joseph R. Simpson (Chichester: Wiley-Blackwell, 2012), 259.
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Jane Campbell Moriarty, “Flickering Admissibility: Neuroimaging Evidence in the U.S. Courts,” Behavioral Sciences and the Law 26 (2008): 29–49.
- 14.
It is important to keep in mind that legal databases only contain a subset of all appellate decisions and, of course, not all judicial decisions are appealed. Moreover, the decisions that get stored in a database are those with large consequences, are especially complex, or have interesting and larger judicial implications. Therefore, the cases we have collected necessarily comprise only a portion of the decisions from the past several years that have relied on brain imaging data and are skewed away from smaller, lower impact, decisions. However, because brain scans are so costly and difficult to procure, we would maintain that they are only likely to be proffered as evidence in higher impact cases. And higher impact cases are more likely to be appealed. Hence, the cases we are able to analyze provide some reasons to accept the conclusions adumbrated below as generalizable to many cases in which brain scan data are proffered as evidence.
- 15.
NewChoiceHealth.net, for example, lists the average cost of a brain CT to be $825–$4800; MRIs average $1600–$8400; PET scans average $2250–$10,700.
- 16.
Catley and Claydon, “The Use of Neuroscientific Evidence,” 510–549; Chandler, “The Use of Neuroscientific Evidence,” 550–579; de Kogel and Westgeest, “Neuroscientific and Behavioral Genetic Information,” 580–605; Denno, “The Myth of the Double-Edged Sword,” 493–551; Denno, “How Prosecutors and Defense Attorneys Differ,” 453–479; Hardcastle, “Diversion Courts,” in press; Lyn M. Gaudet, and Gary E. Marchant, “Under the Radar: Neuroimaging Evidence in the Criminal Courtroom,” Drake Law Review 64 (2016): 577–661.
- 17.
Several cases included more than 1 scan, which is why the number of scans totals more than 57.
- 18.
May v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, WL 5446799 (2015).
- 19.
Department of Transportation, Bureau of Driver Licensing v. Walsh, 606 A.2d 583 (Pa. Cmwlth. 1992).
- 20.
Department of Transportation, Bureau of Driver Licensing v. Wilhelm, 626 A.2d 660 (Pa. Cmwlth. 1993).
- 21.
Clayton v. State, 63 S.W. 3d 201 (Mo. banc, 2001).
- 22.
State ex rel Clayton v. Griffith, 457 S.W. 3d 735 (S.C. Mo. 2015).
- 23.
Three judges did dissent in this opinion, noting that in Atkins , the US Supreme Court ruled that “no legitimate penological purpose is served by executing a person who is mentally retarded”; therefore, executing any severely intellectually disabled person violates the Eighth Amendment of the US Constitution, which bars cruel and unusual punishment. This decision left it to the states to develop “appropriate ways to enforce the constitutional restriction.” The dissenting judges conclude that “the constitutional restriction bars execution of the disabled; the constitutional protection is not narrowed just because some states may not enact a statute that encompasses all intellectually disabled persons.”
- 24.
Hardcastle, “Intellectual Disability,” forthcoming; Hardcastle, “Brain Images,” in press; Valerie Gray Hardcastle, M.K. Kitzmiller, and Shelby Lahey, “The Impact of Neuroscience Data in Criminal Cases: Female Defendants and the Double-edged Sword.” New Criminal Law Review, forthcoming.
- 25.
Ex parte Cathey, 451 S.W.3d 1 (Tx Ct. Cr. Appl., 2014).
- 26.
Atkins v. Virginia, 536 U.S. 304 (2002), is the Supreme Court decision which held that executing intellectually disabled persons violated the Eighth Amendment, which prohibits cruel or unusual punishment.
- 27.
Nelson v. U.S., WL 1546819 (W.D. Mo. 2015).
- 28.
U.S. v. Wingo, 789 F.3d 1226 (11th Cir. 2015).
- 29.
Atkins v. Virginia, 536 U.S. 304 (2002).
- 30.
U.S v. Merriweather, WL 5770213 (N.D. Ala., S. Div., 2014).
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Hardcastle, V.G. (2018). Why Brain Images (Probably) Should Not Be Used in US Criminal Trials. In: Boonin, D. (eds) The Palgrave Handbook of Philosophy and Public Policy. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-319-93907-0_3
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