This is an exciting time for students of the human brain. Worldwide there has never been such intense interest in and extensive research into the brain. Techniques for studying the brain are proliferating. By way of example, one group of scientists is employing electroencephalography (EEG) as a tool to investigate the brain's operations. Some of these researchers have utilized EEG to identify brain damage; others, including Dr. Lawrence Farwell of Brain Fingerprinting Laboratories, are endeavoring to adapt EEG technology to the detection of deception. Another group of scientists has focused its research on BOLD fMRI (Blood Oxygen Level Dependent functional Magnetic Resonance Imaging). Some researchers at Washington University have adapted the technique to identify the verbal center of patients' brains. As in the case of EEG, others, notably Cephos Corporation6 and No-Lie MRI, are using fMRI as a type of lie detector. The volume of literature in the area is growing exponentially. At the beginning of this century, there were already several published research studies on fMRI alone. The forthcoming third edition of the Federal Judicial Center's Reference Manual on Scientific Evidence will include a chapter devoted to the brain sciences.
Although the mention of the courtroom use of brain science understandably brings to mind the possibility of introducing testimony based on such science, the courtroom impact of brain science will not be limited to its evidentiary use. The rules of evidence come into play when a litigator uses information for an adjudicative purpose, that is, to help a trier of fact decide the historical facts of the instant case.o If the litigator proffers brain science data to help the trier determine the who, what, which, when, where, and why of the pending case, the litigator obviously must comply with formal evidentiary rules such as the limitations on expert opinion testimony. The third part of this article discusses several adjudicative uses of brain science data.
Imwinkelried, Edward J.
"Serendipitous Timing: The Coincidental Emergence of the New Brain Science and the Advent of an Epistemological Approach to Determining the Admissibility of Expert Testimony,"
Mercer Law Review: Vol. 62:
3, Article 10.
Available at: https://digitalcommons.law.mercer.edu/jour_mlr/vol62/iss3/10