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Publication Date

5-2011

Document Type

Article

Abstract

Over the past several decades, commentators and scholars from the medical, legal, and social science fields have produced a massive body of literature on the intersection of law and neuroimaging. Earlier writings focused on explaining various new techniques for developing brain images, exploring how such images might be relevant in legal proceedings, and addressing evidentiary issues posed by the use of such images in court. More recent publications correspond with a vast expansion of research and funding in the area of neuroscience and address a wide variety of topics, such as the use of neuroimaging to detect deception, predict recidivism and future dangerousness, explain the effects of trauma and mental illness, gather information from international terrorists, and even predict whether a person has a general propensity for violence. Other, more cautionary pieces have raised questions about the ethical implications as well as the financial, social, and moral costs associated with the use of neuroimaging in these contexts.

In this Article, we examine the use of neuroimaging in capital cases with a practical, case-based perspective and conclude that brain imaging can be an important, helpful, and successful tool for capital defenders, but there are serious risks that must be considered before determining whether to employ these techniques. Drawing on examples from our own practice, we discuss the role neuroimaging can play in capital cases. More importantly, however, we also discuss the pros and cons of the defense's use of neuroimaging in these cases. Our take-home message is that neuroimaging is never the first option in a capital case, and it should only be considered after (1) a comprehensive social history investigation has been conducted; (2) a comprehensive neuropsychological battery of tests has been administered to the client; and (3) the clienthas been evaluated by a neuropsychiatrist or neurologist who is familiar with neuropsychological testing and its social history and who is sensitive to the dangers of neuroimaging. In sum, neuroimaging is not an investigative tool; it is a confirmatory and explanatory tool (and even then, only in the right case). Part II of this Article briefly describes some of the most commonly used imaging techniques in capital cases. Part III uses a case example to illustrate how a carefully crafted mitigation story can successfully incorporate cutting-edge brain imaging. Part IV, however, describes some potential disadvantages and risks we have experienced. Part V concludes this Article with a brief list of practical "lessons from the front."

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