This Brain Sciences in the Courtroom Symposium is both timely and important. Given recently developed and rapidly improving brain imaging techniques that enable non-invasive detection of brain activity, civil and criminal courts increasingly encounter attorneys proffering brain scans as evidence.' The reason is simple. In addition to caring about how people act-such as when they cause a person's death or sign a will-the legal system's inquiries frequently turn on determining what people were thinking, or were capable of thinking, when they acted.
In criminal law, for example, the same act can yield anything from mere probation to decades in prison, depending on what the legal fact finders believe a defendant was probably thinking. In the civil context, the beliefs held by a defendant about a particular risk are often central to a plaintiff's recovery. The unavoidable consequence is this: what a brain was actually doing at the time of an act, and indeed what a brain in court recollects about past acts, often matters a great deal to the administration of justice. And in all such such cases, judges and jurors have it hard. It is simply not easy to read the mind of a stranger or to assess with complete confidence either the subjective belief or objective accuracy of expressed recollections.
Shen, Francis X. and Jones, Owen D.
"Brain Scans as Evidence: Truths, Proofs, Lies, and Lessons,"
Mercer Law Review: Vol. 62
, Article 5.
Available at: https://digitalcommons.law.mercer.edu/jour_mlr/vol62/iss3/5