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Graduate Student Journal of Psychology Copyright 2009 by the Department of Counseling & Clinical Psychology 2009, Vol. 11 Teachers College, Columbia University Neuroscience and Law: The Evidentiary Value of Brain Imaging Teachers College, Columbia University Neuroimaging evidence should be restricted in terms of admissibility in the courts, and should only be considered reliable under scientifically valid clinical methods. This topic will be approached in four stages: (1) a brief introduction to neuroscience and law, (2) a discussion of evidentiary laws in the American legal system, (3) a review of modern neuroimaging and the admissibility and applicability of neuroimaging evidence in the courtroom using actual cases, and 4) a closing argument, including interdisciplinary perspectives on neuroscience and law. Neuroimaginghas numerous legitimate legal brain imaging, including: the presence of structural applications, in addition to important clinical applications. abnormalities, functional deficits, personality traits based on Neuroimaging methods are primarily used to study brain and physiological defects, and lie detection (Pettit, 2007, p. 321- behavior relationships, which contribute to clinical and research disciplines such as radiology, psychiatry, Brain images have physiological and behavioral neurology, and clinical neuropsychology (Bigler, 1991). correlates. Correlation of neuroimaging to behavior is However, there are numerous ways in which brain imaging presently very limited. A majority of the findings are still can be interpreted and implicated in the court. In fact, inconclusive, although many remain informative, and neuroscience has been applied to many legal subfields, potentially useful. "With respect to understanding the brain including, but not limited to: Intellectual Property Law, Tort and certain behaviors, the state of scientific knowledge is Law, Consumer Law, Health Law, Employment Law, nascent, but promising. The more complex and specific the Constitutional Law, and Criminal Law (Tovino, 2007). Thus, behavior examined, the more speculative the connection" brain scientists can use neuroimages to determine the (Baskin et al., 2007, p. 239). However, even the simplest cognitive, behavioral, and physiological traits of clinical behaviors involve highly sophisticated functions and patients and legal defendants. interactions between multiple structures in the brain. The The convergence between neuroscience and law is a human brain is complex and, whether in the clinic or the recent phenomenon. In fact, "[t]he legal profession is at least courtroom, it should be analyzed and assessed by experts. two millennia older than the neurobiological profession, In a clinical setting, neurologists, neuropsychologists which is not much more than 150 years old at best, and in its and other health care professionals use neuroimaging for current state of probing the mind of man and his subjective medical purposes, in order to detect or diagnose neurological states is far younger than that" (Zeki & Goodenough, 2004, disorders or brain injuries. Technological advances and p. 1662). Nevertheless, developments in neuroscience have methodological improvements in neuroimaging techniques led to unprecedented changes in legal proceedings, whereby will continue to expand its use. Meanwhile, neuroimaging the brain has increasingly become a subject of legal inquiry. will be applied in the courtroom for purposes that extend As neuroscience now has many implications within the legal beyond medicine. realm, the "Neuro-Law" subfield has developed. In a courtroom setting, litigants use neuroimaging in civil litigation and criminal trials in order to affirm or deny Admissibility of Scientific Evidence: Implications for claims of brain or spinal injury (Pettit, 2007, p.321-322). Neuroscience Some researchers assert that neuroimaging could be used to demonstrate the propensity for violence, the capacity to Admissibility of neuroimaging evidence is commonly stand trial, as evidence of malingering, or to help establish or based on the purpose of submission, rather than the imaging diminish the criminal responsibility of a defendant (Aharoni, itself. There is a great deal of controversy regarding if and Funk, Sinnott-Armstrong, & Gazzaniga, 2008). Recent when neuroimaging should be used. Neuroimaging is not research has also noted the use of brain imaging in detecting purely objective, but is "the product of a complex set of pain, but this method has not yet been scientifically validated techniques, subjective decisions, technical choices, and for clinical use (Kupers & Kehlet, 2006). informed interpretations" (Baskin, Edersheim, & Price, Evidentiary rules have set parameters for the 2007, p. 249). Essentially, neuroimaging methods create a admissibility and reliability of scientific instruments, thereby visual image of the brain and the imaging specialist limiting the application of neuroimaging. Yet, as Pettit interprets it. Various interpretations can be derived from (2007) states, "courts usually seem willing to consider brain-imaging evidence under the same standards that they apply to other scientific evidence" (p. 339). Legal history Correspondence: Noel Shafi, [email protected] demonstrates that neuroimaging is most useful when it is requested a systolic blood pressure deception test, or lie applied with clinical methods. Ultimately, the rule of law detector test. The defendant believed that the test results and the current state of science determine the practicality of would proclaim his innocence. The court excluded the test neuroimaging in the courtroom. The scientific reliability of results because the testing device was not generally accepted neuroimaging evidence is an important part of legal in the scientific community. The court explained their decision as follows: The legal standard for admissibility of evidence depends on the court system. State and federal courts have their own Just when a scientific principle or discovery crosses the standards but generally defer to federal rules. Federal rules line between the experimental and demonstrable stages is are derived from previous court rulings, which established difficult to define. Somewhere in this twilight zone the preliminary standards of admissibility. For example, evidential force of the principle must be recognized, and while courts will go a long way in admitting expert Daubert v. Merrell Dow Pharmaceuticals (1993) and Frye v. testimony deduced from a well-recognized scientific United States (1923) are two pivotal cases that contributed to principle or discovery, the thing from which the deduction the federal standard for the admissibility of scientific is made must be sufficiently established to have gained evidence. general acceptance in the particular field in which it Gardland and Glimcher (2006) describe the Daubert belongs (p. 1014). standard – a legal criteria for evaluating the reliability of scientific testimony and evidence in the courtroom. This This statement eventually became known as the "Frye standard is derived from a civil suit, Daubert v. Merrell Dow standard" for the admissibility of scientific evidence. Pharmaceuticals, whereby the Supreme Court established Both the Daubert (1993) and Frye (1923) cases four general guidelines for the admission of scientific developed standards for the admissibility of scientific evidence. However, it was the Daubert standard that In regard to the evidentiary law, the Daubert standard significantly contributed to the development of the federal states that trial judges should carefully consider: standard, which was previously enacted. The Frye standard was generally used from the 1920's to the 1980's; the courts …whether the theory or technique in question can be (and eventually shifted to the federal standard in the 1970's and, has been) tested, whether it has been subjected to peer in the 1990's, Daubert (1993) ruled that Frye would no review and publication, its known or potential error rate, longer be the standard rule of admissibility of scientific and the existence and maintenance of standards controlling evidence (Moriarty, 2008). its operation, and whether it has attracted widespread Federal Rules of Evidence (FRE).The current federal acceptance within a relevant scientific community (p. 580). standard for evidence in the courtroom is known as The Federal Rules of Evidence (FRE). The FRE have provided a Can neuroimaging evidence satisfy any of these criteria? legal standard for the admissibility of evidence in United In Daubert v. Merrell Dow Pharmaceuticals (1993), the States federal courts since it was enacted in 1975 (Mosteller, plaintiffs claimed that Bendectin, a prescription drug and 2006). Most U.S. state and federal jurisdictions refer to this antinauseant, caused them serious birth defects when their standard. The FRE contains several rules relevant to the mothers consumed it during pregnancy. Experts for the admissibility, presentation and application of scientific plaintiff argued for medical causation, based on results from evidence in the courtroom. Generally, the judge decides animal studies involving Bendectin and human studies whether the evidence is admissible, but only an expert involving similar drugs. Experts for the defendant argued witness can introduce and interpret the evidence (Moriarty, that there was no evidence based on human studies indicating that the drug poses a risk for human birth defects. Relevancy and expert testimony are two central The defendants also cited the Frye (1923) case, arguing that concepts in the FRE that govern the admissibility of expert testimony for the plaintiff was not based on the evidence. There are three rules of particular importance - two scientific method. The court ruled in favor of the defendant pertaining to relevancy, and one pertaining to expert and concluded that the studies relating to Bendectin were testimony (FRE 401, FRE 702 and FRE 403 respectively). inadmissible as evidence. These rules are important because they help determine the This case demonstrates that litigants and scientists admissibility of scientific evidence such as neuroimaging. equally recognize that scientific studies do not always They will be reviewed in order of mention. establish causality, and that animal studies should not always Federal Rules of Evidence, FRE 401 (definition of be equated with human conditions. This case also "relevant evidence"). In regard to relevancy, FRE 401 demonstrates that expert testimony on scientific evidence can potentially influence the admissibility of evidence, or even the outcome of the case itself. Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to In Frye v. United States (1923), the defendant was the determination of the action more probable or less charged with second-degree murder; in his defense, he probable than it would be without the evidence. NEUROSCIENCE AND LAW Researchers are still debating the relevancy of Nuclear Medicine Brain Imaging Council (1996) states that neuroimaging to courtroom proceedings; however, the the "use of functional neuroimaging in forensic situations evidentiary value of neuroimaging is not only a matter of including criminal, personal injury, product liability, medical relevance to the case, but also, the sufficiency of the malpractice, worker's compensation and ‘toxic torts,' evidence itself. Husted and colleagues (2008) state that remains especially controversial" (p. 1257). imaging studies "will not be relevant to every defense and, if The way neuroimaging methods are applied in legal utilized, should be only a component of the multi-faceted cases is crucial. If applied unconventionally, brain scanning scientific data presented" (p. e15). Others disagree, stating technology may undermine rather than contribute to justice. that "neuroscience is insufficiently advanced to offer precise However, if the science is reliable, and provides relevant data that will be genuinely legally relevant" (Morse, 2006, p. facts, litigants can introduce this evidence without compromising the integrity of their case. Therefore, the Federal Rules of Evidence, FRE 702 (opinions and reliability of the method should be a prerequisite for its expert testimony). Whenever neuroscientific evidence requires specialized knowledge, there must be an expert Generally, regardless of the type of case being tried, witness to testify as to what the brain image means. Without factuality, reliability, and applicability remain critical factors the appropriate expertise, the evidence would be rendered in the admissibility of scientific evidence under FRE 702. inadmissible. FRE 702 (2008) states: Federal Rules of Evidence, FRE 403 (relevancy and its limits). Besides FRE 702, there are other federal rules that If scientific, technical, or other specialized knowledge will further stipulate what judges may allow in the courtroom. In assist the trier of fact to understand the evidence or to fact, "[e]xpert testimony that survives scrutiny under FRE determine a fact in issue, a witness qualified as an expert 702 might still be excluded under FRE 403" (Pettit, 2007, p. by knowledge, skill, experience, training, or education, 327). FRE 403 (2008) provides stipulations that potentially may testify thereto in the form of an opinion or otherwise, exclude some evidence from the courtroom if the probative if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and value is minimal. This rule specifies additional criteria for methods, and (3) the witness has applied the principles and admissibility of evidence. FRE 403 (2008) states: methods reliably to the facts of the case. Although relevant, evidence may be excluded if its In summary, Rule 702 requires that testimony be probative value is substantially outweighed by the danger factual, reliable, and applicable to the case. The previously of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of mentioned factors will be evaluated in terms of how they time, or needless presentation of cumulative evidence. apply to neuroimaging evidence. The following evaluation will only provide a general sense of the current medical-legal In summary, Rule 403 specifies four criteria for opinion on the admissibility of scientific evidence in the admissible courtroom evidence (whether it is prejudicial, confusing, misleading or excessive). There are several Sufficient facts are necessary to prove certain aspects of arguments regarding how neuroimaging may or may not the case. If the facts are insufficient, then they will not meet any of these criteria. contribute to legal decision-making. For this reason, Prejudice and justice are inevitably intertwined in the factuality can itself determine admissibility, despite the field of law. Neuroscience can contribute to prejudice in the reliability of the evidence. For instance, "even if the science legal system in numerous ways. In criminal trials, rendering is good enough to pass muster for admission as expert a verdict for the defendant simply based on a structural scientific evidence under federal and state evidentiary rules, abnormality of the brain or a dysfunction of behavior it may still be inadmissible because it will not be probative" oversimplifies the complexity of crime and creates undue (Morse, 2006, p. 400). So, it is not just a matter of whether prejudice. This may work for or against the defendant – the neuroimaging is scientifically valid, but rather, whether or jury can relieve punishment for the crime if the defendant is not it can provide enough information to establish important believed to be insane or incompetent because of his anomaly, facts in the case. but the jury can also penalize the defendant because his brain Researchers Le and Hu (1997) explain that "[r]eliability disorder may indicate a propensity for criminal behavior. concerns the extent to which a test, or any measuring Therefore, brain abnormalities should not automatically procedure, yields the same results on repeated trials" (p. diminish the responsibility of the defendant, nor should it 160). Reliability is equally important in clinical substantiate guilt. Overall, neuroimaging evidence should be neuroimaging as it is in evidentiary law. Aharoni and used in conjunction with other legal or scientific evidence. colleagues (2008) argue that "it is not clear when Thus, prejudice is likely to enter the courtroom depending on neuroscience findings should qualify as relevant, material, or the way the evidence is presented and how it is applied. competent, or reliable as defined by the rules of evidence" Neuroimaging technology is also potentially confusing (p. 157). Whether such qualifications can be met really for the jury. The expert witness must be able to simplify the depends on the type of neuroimaging device being used, and information being presented, and accurately summarize the reason it is being employed. For instance, the Society of relevant findings on the brain. Brain evidence is especially the latter is concerned with physiological features. difficult to present without confusion because "society has Neuroimaging techniques create a visual image of different not yet reached a consensus as to whether, as a matter of structures or functions in the brain (see Figures 1-2 for a morality or legality, neurological explanations should lead to basic review of brain anatomy). Each neuroimaging modality exculpation" (Baskin et al. 2007, p. 268). However, one legal is based on distinct methods of operation, and has varying expert believes that neuroimaging can revitalize the search degrees of scientific validity and reliability. The question is for truth in the courtroom. Feigenson (2006) states that the whether or not the neuroimaging methods in the clinic have "courtroom display of such images should not only greatly evidentiary value in the court. assist triers of fact in understanding the fMRI expert testimony [or any other type of neuroimaging device] but Figure 1. Displaying the cortical surface of the brain. also disabuse them of the tendency to view the data Adopted from Fallon (2006). representations naively and hence uncritically" (p. 251). Thus, it is arguable that neuroimaging could enlighten the jury, rather than confuse them. Baskin and colleagues (2007) argue that neuroimaging can mislead or bias the jury. In fact, "data from fMRI, SPECT, and PET scans can be referenced and presented in dazzling multimedia displays that may inflate the scientific credibility of the information presented" (p. 268). Defendants with insanity pleas can further complicate judicial decisions. One study examined the effect of neurological evidence on legal decision-making. Gurley and Marcus (2008) presented a group of 396 participants with hypothetical case summaries of defendants in criminal trials. The participants were asked to provide a verdict of guilty or not guilty by reason of insanity. This study found that participants were more likely to render a verdict of not guilty by reason of insanity when the hypothetical defendant had psychological or neurological problems, which were demonstrated by psychiatric or neuroimaging techniques. These results seem to demonstrate the favorability of brain- based evidence in the courtroom, and how it can bias the jury Figure 2. Anterior, posterior, ventral and dorsal views of the and the outcome of the verdict (Gurley & Marcus, 2008). To brain. Adopted from Badre (2008). counteract this bias, Baskin and colleagues (2007) suggest that medical witnesses interpret neuroimages with reservation, and be more speculative and less definitive in presenting their testimony in court. Neuroimaging does not seem to present a problem of undue delay as other forms of scientific evidence might. Whether neuroimaging in the court is a "waste of time" or a "needless presentation of cumulative evidence" depends on the ability of brain imaging specialists to contribute new facts to the case; considering the history of neuro-law cases, it seems that brain scans can do just that. Structural and Functional Neuroimaging I: Clinical and Courtroom Applications Modern neuroimaging techniques such as magnetic resonance imaging (MRI), computerized tomography (CT), single photon emission computed tomography (SPECT), positron emission tomography (PET), and functional magnetic resonance imaging (fMRI), will be reviewed in terms of their clinical and legal applications. SPECT, fMRI, and PET are functional brain scanning technologies, while MRI and CT are structural scanning technologies. The former is concerned with physiological functions, whereas NEUROSCIENCE AND LAW Lawyers and scientists typically consider the capabilities to the court, to "bar testimony about shaken baby impact and limitations of neuroimaging techniques before making syndrome or inflicted head trauma" (p. 1). The defendant any conclusions about a patient, client, plaintiff, or was "charged with assault by abuse involving a child" (p. 1) defendant. The following segment of this paper will review approximately sixteen months old at the time the injury was several examples of how law has interacted with thought to occur. The child was hospitalized and underwent neuroimaging in recent legal history. The author will first neuroimaging soon after the injury. A CT scan detected a begin by analyzing the scientific reliability and legal small subdural hematoma with a "mass effect on the left applicability of structural neuroimaging, such as MRI and side" of the child's brain (p. 1). A MRI was also performed, CT, and functional neuroimaging, such as PET, SPECT and and found "an extensive subacute left-sided subdural fMRI. Several legal cases involving each neuroimaging hematoma" throughout the left hemisphere (p. 2). The court modality will be reviewed, followed by a brief discussion on recognized the greater sensitivity of MRI over CT, in that it the admissibility and reliability of neuroimaging evidence was able to better display the extent of the hematoma in the submitted in court. brain. Medical experts in this case agreed that the head Magnetic Resonance Imaging (MRI). Magnetic injuries sustained by the child were "consistent resonance imaging (MRI) is a structural brain imaging with…Inflicted Head Trauma" and that the injuries were technique focusing on the structure of the brain. MRI is a "not accidental" (p. 2). One physician testified that the noninvasive procedure, unlike PET and SPECT. MRI shaking of a child or blunt force inflicted on the child, or displays visual images of the brain by "using a powerful both, causes injuries; this notion is generally accepted in the magnet to obtain its images" (Baskin et al., 2007, p. 248). relevant scientific community, namely, pediatrics (p. 4). The authors describe MRI scans as a static visualization of MRI and CT scans substantiated the evidence the brain. MRI has numerous capabilities. MRI has high supporting head injury, and coincided with expert testimony spatial resolution and is scientifically established as a regarding the diagnosis of shaken baby impact syndrome. reliable measurement of brain injury (Mettingr, Rodiger, De The court concluded that the testimony was relevant and Keyser, & van der Naalt., 2007). Specifically, "structural reliable, and would therefore, be admitted into evidence in MRIs can often detect acutely diffuse axonal injury, small the subsequent trial. The motion by the defendant to exclude hemorrhages, edema, or contusions that characterize TBI" evidence on inflicted head trauma was denied (p. 17-18). In or Traumatic Brain Injury (Baskin et al. 2007, p. 254). Also, this case, MRI and CT evidence was both admissible and "MRI produces images superior to CT scans, both in its ability to differentiate gray from white matter and its clear As demonstrated in the previous case, MRI and CT can visualization of brain structures" (Moriarty, 2008, p. 31). provide proof of injury, but may not always provide Furthermore, "the great advantage of MRI is the absence of sufficient evidence for medical causation. The following radiation, which is important for the assessment of the young case highlights the problem of making causal inferences and in benign conditions" (Rankin, 2008, p. 239). Some from neuroimaging. In Siharath, Rider and Rider v. Sandoz researchers consider MRI an effective tool and an admissible Pharmaceuticals Corporation (2001), the plaintiffs sought form of evidence for postmortem evaluations of traumatized "compensatory and punitive damages" alleging that Parlodel, brains (Harris, 1991). Overall, MRI is designed to detect or a drug manufactured by the defendant, caused seizures and diagnose physiological abnormalities of the brain. stroke (p. 1349). The defendant filed a motion to exclude However, MRI also has limitations. MRI scans are evidence insinuating medical causation. Plaintiff Siharath unable to accurately predict age or gender (Baskin et al., took the prescription for several days, and soon after, 2007). Moreover, Ewers and colleagues (2006) state that experienced "three seizures and a subarachnoid hemorrhagic "[v]ariability in MRI-based measurement between clinical stroke" (p. 1349). The plaintiff's physician was unable to sites may potentially influence the accuracy of biological establish a cause or provide a diagnosis. The second measures and thus compromise applicability of MRI-based Plaintiff, Ms. Rider, experienced involuntary movements in diagnostic criteria across sites" (p. 1051). Differences in her right leg. She later underwent a CT scan, which indicated clinical standards do exist, and that there is a subjective that she had "an acute intracranial hemorrhagic stroke," and element in MRI analysis in the clinic, and consequently, in a MRI scan, which also confirmed that she had suffered "a left parietal hemorrhage" (p. 1350). The experts for the The following case exemplifies the evidentiary value of MRI in diagnosing head injuries. In State of Delaware v. Vandemark (2004), the defendant filed a motion, or a request 6 A hematoma is defined as a collection of blood in bodily tissue or organs usually caused by hemorrhaging; a subdural hematoma is a mass of blood accumulating within the dura mater, and is caused by 2 Axonal injuries are characterized by lesions in the white matter of 7 Seizures are characterized by abnormal neural activity 3 Hemorrhages are instances of internal or external bleeding. accompanied by changes in sensation and behavior. 4 Edema is an accumulation of fluid in bodily tissue or cavities 8 Strokes are defined as a sudden loss of brain function caused by causing swelling to occur. changes in blood supply to the brain, usually causing changes in 5 Cerebral contusions are bruises in brain tissue caused by injury. movement, vision or speech. plaintiffs provided testimony that relied on case reports, MRI evidence was admissible, although its reliability is partly because there was a lack of epidemiological studies on Parlodel. The expert witness for the plaintiff, an expert on adverse drug reactions, argued that Parlodel causes strokes. Computerized Tomography (CT) The defendant argued that case reports do not satisfy the scientific method. Computerized tomography (CT) is a structural imaging The court finally agreed with the defendant, although technique and x-ray technology used to visualize internal the MRI and CT evidence confirmed the injuries in the organs, including the brain. CT is also a noninvasive plaintiffs' brains. Despite the fact that the MRI and CT scans technology that revolutionized diagnostic neurology indicated separate incidents of stroke in two plaintiffs with (Khoshbin & Khoshbin, 2007, p. 179). CT "produces an the same prescription, it does not establish a causal excellent combination of both high spatial and temporal relationship between the drug and the results of the brain resolution" (Rankin, 2008, p. 239). CT is also a valid clinical scan. The court ruled in favor of the defendant, who filed for method of assessing head trauma (Metting et al., 2007, p. "summary judgment on issues of medical causation" 699). Moreover, Moriarty (2008) states that CT and MRI (Siharath, 2001, p. 1374). In this case, MRI and CT evidence scans are typically presented in U.S. courts as evidence for was admissible, but unreliable. brain trauma or neurological disease; he argues that there "is The following case is an example of how neuroimaging general agreement and substantial proof of reliability that CT evidence can be used, in conjunction with scans and MRI technology can detect brain injury, damage neuropsychological evidence, to establish a link between or atrophy" (p. 40-41). According to Metting and brain injury and intellectual capacity. This case demonstrates colleagues (2007), "CT is one of the first developed and that brain scan evidence can coincide with or support the most commonly applied imaging techniques in the acute basis of other scientific evidence in the courtroom. In United phase of head injury" (p. 699) and "the overall sensitivity of States v. Sandoval-Mendoza (2006), the defendant appealed CT to abnormalities in acute head trauma is 63-75%" (p. his conviction for conspiracy to sell methamphetamine, 700). However, the implication that such injuries have on arguing that he was influenced by government agents to mental capacity remains unknown. commit the crime, and that the presence of a brain tumor can In some cases, CT scans are being admitted as evidence explain his susceptibility to influence. One defense witness, in the courtroom for purposes it was not designed. Although a psychologist, testified that the defendant had an unusually brain scans may have important implications on the mental large pituitary tumor, which caused irreversible brain capacity or sanity of an individual, it is minimally capable of damage. The court acknowledged that pituitary tumors may defining the former, and is currently incapable of proving the affect thyroid production, causing mood disorder, and latter. The following cases demonstrate that CT evidence can damage to the frontal, temporal and thalamic regions, which be used or misused accordingly. The first case is a court case may cause problems in "memory, decision-making, involving CT evidence supporting the insanity defense. The judgment, mental flexibility, and overall intellectual second case involves CT evidence establishing mental capacity" (p. 653). Another defense witness, a neurologist, testified that the In United States v. Hinckley (1982), the defendant was MRI showed that Sandoval-Mendoza had a tumor which tried for his attempt to assassinate President Ronald Reagan. shrank after treatment. Afterwards, the frontal lobe herniated The defense presented an insanity defense, which they based, into the empty space previously occupied by the tumor; the in part, on CT scan evidence. The expert witness, a tumor then caused atrophy in the left temporal lobe and psychiatrist, argued for the defense and testified that the CT further damage in other areas. scan showed atrophy in the brain. The psychiatrist then The court recognized that this kind of damage to the argued that atrophy is associated with schizophrenia. A brain affects judgment, memory, and emotional memory. radiologist was also consulted and testified that the scans Both witnesses agreed that such brain damage causes showed brain abnormalities, but did not have any causal disinhibition, but does not necessary increase "susceptibility implications on the behavior or sanity for the defendant. to inducement to commit crimes" (p. 653). Prosecution Nevertheless, the jury found Hinckley not guilty by reason of witnesses, also consisting of neurologists and insanity. It is likely that CT evidence had an effect on the neuropsychologists, testified that although the MRI showed verdict (Khoshbin & Khoshbin, 2007, p. 184), by a pituitary tumor, the connection between cognition and diminishing the responsibility of the defendant and behavior remains questionable, and that the tumor should not supporting his insanity defense. Such an inference from be attributed to disinhibition (p. 653-654). neuroimaging is not based on scientific evidence. This is one The court also recognized that although expert example of how brain scans can be used in a way it was not testimonies on both sides were contradictory, they were not intended. Neuroimaging is not capable of proving insanity. potentially confusing and that "the jury was capable of Although the images coincided with the psychiatric weighing the conflicting medical expert opinion testimony against the rest of the evidence presented and determining 9 Atrophy is a physiological process characterized by cell death, whether or not predisposition existed" (p. 656). In this case, causing a progressive decline in tissue. NEUROSCIENCE AND LAW assessment, it was unable to substantiate it. In this case, CT In previous cases, it was demonstrated that the causality evidence was admissible, but seemingly unreliable. of brain injury can not be easily established. In the following In re Estate of Meyer (2001), the plaintiffs sued because case, it seems equally difficult to establish causation between they were unrightfully denied benefits from Meyer's trust. brain injury and post-injury symptoms. In Lanter v. The plaintiffs argued that Meyer was not mentally capable of Kentucky State Police (2005), the appellant sought "workers' creating the trust and was possibly manipulated by his compensation benefits due to a head injury" (p. 45) sustained lawyer. Moriarty (2008) noted that the court allowed the during a police training incident. Lanter had previously plaintiffs to introduce CT scans of Meyer which indicated received partial disability benefits. However, the appellant various abnormalities including "brain atrophy, vascular wanted total disability benefits and requested several brain dementia and focal brain changes" (p. 41), which scans to determine the extent of his injury. In order to supported the claim that Meyer lacked the capacity to create receive total benefits, the claimant must demonstrate that his the trust. As mentioned earlier, CT scans have the ability to work-related brain injury caused continuous emotional, localize damage in the brain. However, the association neurological, and behavioral symptoms. Several brain scans between atrophy, dementia, and CT evidence is questionable. of different types were admitted as evidence. The medical Both early and recent reports have questioned the reliability experts performed MRI, EEG and SPECT scans. One of CT in measuring cognitive decline (Bird, 1982; van expert diagnosed the appellant with a cerebral contusion and Straaten, Scheltens, & Barkhof, 2004). According to the post-concussive syndrome (Lanter, 2005). court, neuroimaging provided substantial proof to explain Another expert performed and analyzed additional Meyer's mental state, or lack thereof. In this case, CT SPECT scans, which "revealed functional defects in the right evidence was admissible, but reliability is debatable. parietal and left occipital lobes of the claimant's brain" (p. As shown in some of the previous cases, structural 48). However, these results did not indicate that the injury imaging in the courtroom is relatively reliable. Functioning caused his behavioral symptoms. The claim for disability imaging is also applicable in legal cases. benefits was denied, in part, because the medical experts for the plaintiff did not establish causation between injury and Single Photon Emission Computerized Tomography affect. SPECT evidence in this case was admissible, but Other cases have also admitted SPECT imaging as Single photon emission computerized tomography evidence for brain injury claims. For example, in Boyd v. (SPECT) is a functional imaging technique that measures Bell (2005), the appellant, a former athlete, sustained head metabolic activity and cerebral processes in various injuries during sports activity. The appellant (Boyd) structures. Scientists can use functional imaging to study the requested SPECT scanning to determine the cause and extent neurochemistry of the brain and develop a cognitive profile of his organic brain injury in order to apply for additional based on an increase or decrease in blood flow (Baskin et al., disability benefits. The radiologists appointed to the case 2007, p. 250). SPECT has a wide variety of clinical confirmed the head injuries, but noted that the exact cause applications. SPECT imaging studies have generated data on was uncertain. Subsequently, the court ruled against the psychiatric and neurological disorders, like dementia, appellant, denying his claim for disability benefits, partly epilepsy, schizophrenia, and depression, but with mixed because there was no way to prove that his current results (Bonne, Krausz, & Lerer, 1992). physiological abnormalities were due to head injuries he SPECT also has several disadvantages. Granacher sustained in the past. SPECT evidence in this case was once (2008) notes the clinical and legal limitations, stating that again admissible, but unreliable. "the reliability of SPECT…when applied forensically to The following case shows that although SPECT imaging MTBI [Mild Traumatic Brain Injury] or TBI cases, will not is unlikely to establish causation, it can be used to meet all Daubert criteria" (p. 326), and that "general demonstrate incompetence. In United States v. Kasim (2008), acceptance of the theory and technique within the relevant the defendant, a pediatrician, was accused of conducting scientific community…has not been achieved" (p. 327). fraudulent insurance practices. The defendant filed for a Metting and colleagues (2007) note the technological competency evaluation in 2008. His defense team found that, limitations, stating that SPECT has low spatial resolution, in 2003, "Kasim was diagnosed with anoxic encephalopathy limited availability, and is not routinely used as a clinical caused by an acute myocardial infarction," as well as sleep tool for assessing head injury. At the present time, there is no apnea during hospitalization (p 8). The EEG produced scientific consensus on the validity of SPECT. Furthermore, abnormal results the following day. Days later, EEG and "[r]eliable analysis of SPECT date remains a major MRI results performed on Kasim were normal. Numerous challenge" (Bonne et al., 1992, p. 298). 11 The electroencephalogram (EEG) is a functional technique used to assess "cerebral maturation, for determining a patient's 10 Vascular dementia is a common neuropsychiatric disorder physiological (awakening and sleep) and pathological (comas) level characterized by cognitive decline and impairment, producing focal of wakefulness and in epileptology" (Praline et al., 2007, p. 2149). effects in the brain. medical expert witnesses were consulted for further scanner-specific or archived normative databases"; (5) scanning. A SPECT was later performed, indicating a "Nonuniform use of quantitative analyses in conjunction reduction in blood flow in the temporal and frontal lobes. with descriptive readings"; (6) "Availability of few The frontal and temporal lobes are associated with executive published standards defining the criteria for disease pattern functioning and memory, respectively. The defendant identification"; and a (7) "Lack of published determinations exhibited deficits in both areas of cognition during of sensitivity and specificity for scans to indentify specific neurological and psychological testing. One medical witness diseases and syndromes before their routine clinical use" (p. diagnosed Kasim with frontal lobe dementia, based on the 1257). The clinical limitations of SPECT and PET should be acknowledged in the courtroom. Interpretative errors in Although at least one physician disagreed with the neuroimaging could certainly compromise expert testimony. diagnostic validity of SPECT in cases of dementia, or the For this reason, and others, the courts have increasingly extent of reduced blood flow in the frontal region, almost all "rejected the use of scans when performed for less than well- agreed that the defendant exhibited cognitive deficits. established clinical indications" (p. 1257). Despite the discrepancies in the neuroimaging results from Yet, despite the skepticism on introducing neuroimaging SPECT, EEG, and MRI, several medical witnesses testified to litigation, many courts are accepting brain scans as that normal results from EEG and MRI scans do not reliable evidence. For instance, PET and SPECT have necessarily imply normal brain functioning. The court relatively high rates of admissibility. In fact, Feigenson considered SPECT as an objective test of cognitive abilities. (2006) states that "PET and/or SPECT evidence has been Also, the court found that "Kasim's demeanor during various admitted in more than four-fifths (73 of 89, 82.0%) of cases medical evaluations portrayed poor judgment, an inability to in which it has either been admitted or excluded" (p. 237). concentrate, and an inability to understand the charges at Feigenson (2006) also states that there have been over 130 hand" (p. 46). The court concluded that the defendant was court opinions involving PET and SPECT evidence in U.S. incompetent to stand trial. Neuroimaging evidence federal and state courts. The rate of admissibility for PET contributed to the outcome of the case, which was in favor of and SPECT does not substantiate reliability, however. the defendant. SPECT evidence in this case was admissible In the following case, unreliable evidence was admitted for the defendant, to confirm his claim of incompetence due to Alzheimer's disease. In United States v. Gigante (1997), Positive Emission Tomography (PET) the defendant was being prosecuted by the federal government for several counts of murder and other serious Positive emission tomography (PET) is a functional charges. The defendant requested a PET brain scan to imaging technique that measures metabolic processes, confirm Alzheimer's disease (AD) and demonstrate including "blood flow, blood volume, and metabolism" incompetency. According to the court opinion, the expert (Baskin et al., 2007, p. 248). It is a relatively invasive witness for the defense found that the "defendant was procedure that requires an injection of radioactive elements suffering from organic brain dysfunction, possibly due to (or tracer molecules) into the circulatory system, which Alzheimer's disease or multi-infarct dementia" (p. 147). The eventually interact with other molecules to produce witness was unable to determine the cause, but concluded measurable changes in activity. Essentially, PET scans "use that the defendant was incompetent to stand trial. radioactivity to map differences in metabolic activity in areas The prosecution team, however, found evidence that of the brain" (Pettit, 2007, p. 320). They can also be used to such abnormalities can be attributed to drug use (p. 147). "measure reduced tissue perfusion" (Baskin et al. 2007, p. The court noted that Gigante was taking medication at the 250), a characteristic of neurodegenerative disease, where a time. This case exemplifies that neurological deficit does not decrease in blood volume is observed in specific tissue. imply psychological dysfunction, especially considering the According to Metting et al. (2007), "PET studies generally confounding variables in the neuroimaging results. Also, the show cerebral dysfunction beyond the structural defendant exhibited brain abnormalities which may or may abnormalities demonstrated by CT and MRI" (p. 703); not have existed during the commitment of the crime. The however, PET has low spatial resolution and is not routinely evidence probably undermined, rather than supported, the used for assessing mild or moderate traumatic brain injuries. defendant's case. In this case, PET evidence was Although PET is more sensitive than SPECT, it is inferior in admissible, but unreliable. terms of specificity (Ebmeier, Donaghey, & Dougall, 2005). PET also has additional limitations in methodology. The Society of Nuclear Medicine Brain Imaging Council (1996) explains methodological issues with There is one fundamental problem with the defense in this case. structural neuroimaging. The council names seven sources of In regard to a PET-based diagnosis of Alzheimer's dementia, "there interpretive error in using SPECT and PET: (1) "Differences are postmortem criteria.but in vivo histological findings are rarely feasible" and "guidelines have generally not supported the routine in patient behavioral conditions during acquisition"; (2) use of functional imaging in the diagnostic evaluation of dementia" "Processing and display variations"; (3) "Nonstandardized (Ebmeier et al., 2005, p. 49). definitions of normal and abnormal"; (4) "Availability of 13 This case was also reviewed elsewhere (Pettit, 2007, p. 335-336). NEUROSCIENCE AND LAW Sometimes neuroimaging is excluded as evidence development and neuropsychiatric disorder" (Aron, Gluck, because it is being used for reasons that are not clinically & Poldrack, 2006, p. 1000). valid, such as diagnosing injuries that lack clinical criteria in The introduction of fMRI advanced the study and PET studies. In McCormack v. Capital Electric Construction science of the brain, and is considered to be technologically Company (2005), the plaintiff, a carpenter, filed for superior to PET and SPECT (Khoshbin & Khoshbin, 2007). negligence after being electrocuted during work. The However, fMRI has numerous limitations. The interpretation plaintiff attempted to introduce PET brain scans to confirm of brain activity patterns remains a question of debate among his injuries and gain compensation. Experts testified that the neuroscientists. Neuroimaging studies examine cognitive scans showed abnormal brain activity. However, the functions associated with specific brain patterns of neural defendant argued that the PET "scans were inadmissible…as activity. However, there is no indication that any particular an unreliable method of diagnosing electric shock injuries" pattern is necessary for any specific behavior (Desmond & (p. 399). The court ruled in favor of the plaintiff, not because Chen, 2002). Several confounded variables, such as head of PET, but because of the alternative scientific evidence movement and anatomical differences, also undermine the presented, including neuropsychological and medical interpretation of fMRI results (Desmond & Chen, 2002). evaluations. Although the PET scan of the plaintiff provided Also, another limitation in fMRI is its "meager temporal the court with important information relating to the case, it resolution" (Aharoni, 2008, p. 158). was not sufficient to substantiate his claim. PET evidence in Feigenson (2006) describes six additional reliability this case was admissible, but unreliable. issues noted with fMRI usage: (1) fMRI scans provide In yet another legal case, the reliability of PET evidence relative measures of brain activity, not absolute measures; depends on the availability of control groups in clinical (2) fMRI data in neuroimaging studies are not always based studies; these studies are used to validate neuroimaging on a same level of significance (e.g. p < .05); (3) fMRI data methods. In Penney v. Praxair, Inc. (1997), the plaintiff usually represents group averages of brain activity, and sustained a motor vehicle accident, and sought awards for results may not apply to individuals; (4) anatomical brain damage. Experts for the plaintiff testified that PET variability compromises the accuracy of structural scans detected brain abnormalities, which indicated that localization; (5) there are several confounded variables that Penney had sustained traumatic brain injuries. However, the may effect physiology, neurochemistry or cognition (e.g. court found that the plaintiff "did not prove its results were drugs and toxins); and (6) generalizing the results from fMRI not affected by his age and his medications" (p. 330). PET is difficult considering the lack of uniformity in the results are believed to be compromised by age, medical experimental methods used for neuroimaging studies (p. history or medications. The reliability of PET results also depends on the control groups used in PET studies. In this Feigenson (2006) also refers to one brain researcher, case, the plaintiff's age did not match the controls used for who states that "[t]here is no single-subject reliability" in PET experiments at the time. Nevertheless, the court ruled in fMRI findings (Robinson, 2004, p. 716). Furthermore, fMRI favor of the plaintiff, awarding damages to the plaintiff "for also has several limitations in regard to diagnosis of injury. past and future medical expenses related to injuries he Granacher (2008) states that "[t]he evidentiary usefulness of allegedly sustained" (p. 330). Furthermore, according to the functional neuroimaging to provide mild TBI in a court of court, the admissibility of scientific evidence does not law lacks a sufficient scientific database and lacks sufficient strictly depend on general acceptance in the scientific scientific standards" (p. 327). Nevertheless, fMRI is a "non- community, but the relevance and reliability of the method invasive technique," which "does not require exposure to employed (Daubert, 1993). In this case, PET evidence was ionizing radiation" and creates anatomically precise images inadmissible and unreliable. of the brain, while assessing the neural correlates of cognition and behavior (Metting et al., 2007, p. 705). Functional Magnetic Resonance Imaging (fMRI) Researchers speculate that fMRI is likely to be the future of truth (or lie) detection in legal proceedings, and is Functional magnetic resonance imaging (fMRI) is a superior to the polygraph in accuracy and reliability brain scanning technology that measures "localized brain (Kittay, 2007). Applebaum (2007) explains that lie detection activity by determining blood flow and oxygen utilization in with fMRI is based on the assumption that lying activates portions of the brain" (Applebaum, 2007, p. 461). Aharoni et al. (2008) states that, "in general, abnormal activation could manifest as hypoactivation, hyperactivation, positive or 14 Some argue that the development of science sometimes depends negative activation, or some erratic pattern" (p. 152). Baskin on diverse modifications of its methods. A universal method is et al. (2007) notes fMRI and other forms of functional potentially detrimental especially if the method retains weaknesses imaging are "most advantageous for studying that would otherwise be corrected in an alternative scientific neurochemistry" (p. 248). Also, fMRI is "widely used for approach to research methodology (Chalmers, 1999, p. 161-162). 15 A polygraph is an instrument used to record physiological data imaging the neural correlates of psychological processes and and changes in the sympathetic nervous system. The examiner how these brain processes change with learning, records the responses and determines whether the examinee is lying based on bodily reactions. brain areas associated with executive functioning. Higher detector" (Bellin, 2008, p. 711). Mosteller (2006) asserts that cognitive processes would be necessary to suppress a truthful "if there were a truly accurate lie detection technology, over response and plan for deceit. Defendants being scanned by time it would have a substantial impact both on how criminal authorities would exhibit abnormally high levels of brain cases are handled before trial and on how they are tried" (p. activity in frontal areas when lying to investigators. This is 539). Truth or lie detection with neuroimaging is still a one way in which fMRI would be considered useful. process in development, and a subject of intense interest in However, Appelbaum (2007) names seven limitations neuroscience and law (Mosteller, 2006). There have been that exist with fMRI lie detection: (1) There is no scientific few cases involving fMRI evidence, and like with any other consensus on the neural basis of deception; (2) fMRI studies neuroimaging technique, "there may be real concerns about use group norms to define activation levels in test the reliability and relevance of fMRI based expert participants, but these norms may not apply to individuals; testimony" in legal proceedings (Feigenson, 2006, p. 251). (3) fMRI studies of lie detection are fairly recent and lack The following case is concerned with the relationship substantial data; (4) false-positive and false-negative rates between violence and cognition, rather than information are not currently available, so an accuracy assessment is not extraction or lie detection. In Entertainment Software possible; (5) external validity is yet to be established – Association [ESA] v. Blagojevich (2005), the plaintiff sued laboratory use and findings may differ from, or may not the state (represented by the defendant, Blagojevich, apply to, courtroom use; (6) there are confounded variables Governor of the state of Illinois) and attempted to enjoin, or like attention and emotion that would potentially affect the forbid, the enforcement of a state law designed to prohibit results of fMRI lie-detection; and (7) even if a physiological the promotion of violent or explicit video games to minors basis for lying and deception is defined, a measurement without parental consent. The state wanted to regulate the would have to be devised to differentiate between absolute distribution of games because they believed exposure to truth and partial truth, or absolute lies and partial lies (p. violent media causes a lack of behavioral inhibition in In theory, fMRI is a potential psychological profiling The defendant used an fMRI study (Kronenberger et al., tool. Arrigo (2007) states that fMRI can be used for 2005) to justify anti-video game legislation. The defendant "interrogating suspects of criminal wrongdoing or extracting referred to this study as evidence demonstrating that information from actual violations of the law" (p. 462). In exposure to violent media has a negative effect on child this regard, fMRI is inadequate, and such a method of use behavior and brain function. Using fMRI, the Kronenberger raises important questions concerning humanitarian ethics et al. (2005) study found reduced frontal lobe activity in and constitutional law. Arrigo (2007) contends that fMRI subjects with disruptive behavior disorder in comparison to "represents a form of coercion" and a violation of privacy controls; a relationship between violent media exposure and rights (p. 463-466). With further research and changes in brain functioning was also found in both development, it is only a matter of time before fMRI lie experimental subjects and controls. The plaintiff consulted detection is introduced in the courts to pick up where the Dr. H.C. Nusbaum, a cognitive psychologist and expert polygraph left off. Arrigo (2007) speculates that interactions witness, who challenged the testimony of Dr. W.G. between criminal justice and neuroscience will set a legal Kronenberger in court. foundation for biological laws to determine the criminal In his review of the ESA v. Blagojevich (2005) case, culpability of the defendant (p. 474). Feigenson highlights some weaknesses which Dr. H.C. As of yet, "there are no cases to date admitting fMRI Nusbaum noted from Dr. W.G. Kronenberger's testimony evidence as proof of deception or truth-telling" (Moriarty, and fMRI study (Feigenson, 2006). First, the experimental 2008, p. 46). Furthermore, as one legal expert notes, "it is design was fundamentally flawed: participants only not clear…how courts will react to a scientifically valid lie simulated video-game playing while being scanned, so alternations in brain wave activity can not be associated with the actual playing of violent games but only a mere 16 Suggested readings are The Fourth and Fifth Amendments of the simulation. Second, reduced frontal activity does not United States Constitution which further elaborate on the legal necessarily indicate susceptibility to violent or aggressive implications of privacy and testimony that relate to fMRI in the courtroom (Pettit, 2007). behavior, because other regions of the brain are also 17 Arrigo (2007, p. 464-466) applies anti-modernist and sociological involved in aggression. Kronenberger testified that reduced theories of French philosopher, Michel Foucault, to explain the activity in the frontal lobe indicates lack of impulse control. diametric struggle between social authority and individual privacy. Nusbaum disagreed, and testified that the frontal lobe has The implication for neuroimaging is that it contributes to the various functions; a reduction in frontal activity can be former, while undermining the latter. In this context, science is not attributed to other mental and physical processes besides a tool for justice, but merely a biosocial commodity of power and exposure to violent media. Thus, a causal relationship enforcement, used by legal and psychiatric authorities to between negative behavior and altered brain activity can not deconstruct and normalize the individual. From this perspective, neuroimaging represents the most pervasive force against humanity, exerting itself onto one of the most intimate parts of the human The court found that the Kronenberger et al. (2005) experience: thoughts. study was invalid, and could not support the defendant's NEUROSCIENCE AND LAW claim that violent media exposure causes negative behavior, and Protection of Sharlene, 2006; In re estate of Meyer, thereby ruling in favor of the Plaintiff's motion to enjoin the 2001; State of Nebraska v. Kuehn, 2007; Moriarty, 2008, p. law prohibiting the sale of violent games to minors (ESA v. 40-41); functional imaging, like PET and SPECT scans, has Blagojevich, 2005). Further developments in functional been used in civil cases (e.g., Blodgett-McDeavitt v. imaging techniques are necessary before implementing this University of Nebraska, 2004; Green v. K-Mart Corp., 2004; technology in a legal context. In this case, fMRI evidence Lanter v. Kentucky State Police, 2005), criminal cases (e.g., was admissible, but unreliable. People v. Goldstein, 2004; People v. Williams, 2004; State of In summary of the previous cases, it seems that Washington v. Marshall, 2001; United States v. Mezvinsky, neuroimaging methods have a limited degree of admissibility 2002) and in the penalty phase of capital cases (e.g., Hoskins and reliability in the court, despite their extensive use in the v. State of Florida, 1999; State of Tennessee v. Reid, 2006). clinic. The applicability of structural and functional Regardless of why the evidence is being submitted, neuroimaging depends on the type of case being presented. litigants should carefully consider the reliability of From the examples provided, MRI is able to confirm head neuroimaging prior to admission. As one researcher notes, injury (e.g. State of Delaware v. Vandemark, 2004), but is "[h]istorically, neurological data have been given great unable to establish causation between injury and stroke (e.g. evidentiary weight, often before the scientific basis Siharath v. Sandoz Pharms. Corp., 2001) or to determine warranted this degree of confidence" (Baskin et al. 2007, p. susceptibility to criminal behavior (e.g. United States v. 258). Therefore, the evidentiary value of neuroimaging Sandoval-Mendoza, 2006); CT is certainly capable of should be equally weighed in the scales of law and science to defining mental capacity to some extent (e.g. In re Estate of determine admissibility. Structural imaging seems to be Meyer, 2001), but unable to prove insanity, although more admissible and reliable than the functional type, surprisingly influential in at least one case (e.g. United States because it has been used and tested for a greater period of v. Hinckley, 1982); SPECT can help determine competency time. However, this should not negate the potential of to stand trial (e.g. United States v. Kasim, 2008), but is functional imaging. Although structural imaging has a more unable to establish causation between injury and affect (e.g., extensive history in the legal system, functional imaging will Lanter v. Kentucky State Police, 2005), or the exact cause of certainly compete with its technological predecessor, both in organic brain problems (e.g. Boyd v. Bell, 2005); PET can terms of applicability and accuracy. While some emphasize detect traumatic brain injuries or brain abnormalities (e.g. the reliability of structural imaging (Pettit, 2007), others Penney v. Praxair, Inc., 1997), but is unable to diagnose emphasize the potential of functional imaging (Mobbs et al., neurodegenerative diseases like Alzheimer's (e.g. United 2007). Generally, U.S. courts have questioned the reliability States v. Gigante, 1997) or electric shock injuries (e.g. of PET, SPECT and fMRI in contrast with MRI and CT, but McCormack v. Capital Electric, 2005); and finally, fMRI is
researchers will continue to refine both structural and unable to establish a connection between exposure to functional techniques for clinical and legal use. violence and aggressive behavior (e.g., ESA v. Blagojevich, 2005), but is quite possibly the future of lie detection Conclusion: Interdisciplinary Perspectives on Neuroscience Structural and Functional Neuroimaging II: A Comparison The evidentiary value of neuroimaging evidence of Methods depends on the validity of its use and its relevance to the case. Brain imaging is more applicable in some court cases Structural and functional neuroimaging have than others. In conclusion, it seems that neuroimaging significantly contributed to legal decision-making, providing evidence is generally admissible, but usually unreliable when key information about anatomy and behavior in neurolaw it lacks a scientifically valid method. Clinical applications in cases. However, there are considerable limitations to the neuroimaging are more likely to be admitted and deemed applicability of neuroimaging methods; controversy remains reliable as evidence. Yet, the admissibility of unreliable as to whether such techniques are being used according to evidence is a reality that compromises legal integrity and their capability. Researchers maintain that brain scans are scientific credibility. There is still medical-legal debate on only capable of providing anatomical, rather than behavioral the extent to which neuroimaging and law should interact. information. "At the present time, imaging technology Most scientists and lawyers believe that neuroimaging can reveals the anatomical structure of and blood flow patterns in provide important details regarding the brain in both clinical the brain but cannot directly provide information about and courtroom settings, but, there is no legal or scientific behavior" (Illes et al., 2009, p. 108). Moreover, in U.S. consensus on which neuroimaging technology should be courts, behavioral inferences from neuroimages are likely to admissible or reliable – this will remain an open question for be excluded as evidence (Moriarty, 2008). Nevertheless, neuroimaging modalities are used in a The evidentiary value of neuroimaging depends on its variety of legal contexts (Moriarty, 2008). Structural scientific reliability and legal admissibility. Technology will imaging, like MRI and CT scans, have been used in the increase the former, and consequently, improve the latter. courts as proof of physical or mental illness (e.g., In re Care With all likelihood, science will continue to advance, whereas law will continue to adapt. Both neuroscientists and validity and interpretation of activations. Brain and lawyers should maintain their current dialogue on the legal Cognition, 50, 482-497. implications of neuroscience and law. The integration of Ebmeier, K. P., Donaghey, C., & Dougall, N. J. (2005). both fields does not necessarily imply a compromise in Neuroimaging in dementia. International Review of either: "Developments in neuroscience may well have Neurobiology, 67, 43-72. substantial impact on how the law views people and Entertainment Software Association et al. v. Blagojevich et behavior, but the legal system should be able to assimilate al., 404 F. Supp. 2d 1051 (N.D. Ill. 2005). and use even revolutionary science [such as neuroimaging] Ewers, M., Teipel, S. J., Dietrich, O., Schonberg, S. O., without upending its own fundamental structure" (Garland, Jessen, F., Huen, R., et al. (2006). Multicenter assessment of reliability of cranial MRI. Neurobiology of Aging, 27, Fallon, J. H. (2006). Neuroanatomical background to understanding the brain of the young psychopath. Ohio Aharoni, E., Funk, C., Sinnott-Armstrong, W., & Gazzaniga, State Journal of Criminal Law, 3, 341-367. M. (2008). Can neurological evidence help courts assess Fed. R. Evid. 401 (2008). criminal responsibility? Lessons from law and Fed. R. Evid. 403 (2008). neuroscience. Annals of the New York Academy of Fed. R. Evid. 702 (2008). Sciences, 1124, 145-160. Feigenson, N. (2006). Brain imaging and courtroom Appelbaum, P. S. (2007). The new lie detectors: evidence: On the admissibility and persuasiveness of Neuroscience, deception, and the courts. Psychiatric fMRI. International Journal of Law in Context, 2, 233- Services, 58, 460-462. Aron, A. R., Gluck, M. A., & Poldrack, R. A. (2006). Long- Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). term test-retest reliability of functional MRI in a Garland, B., & Glimcher, P. W. (2006). Cognitive classification learning task. Neuroimage, 20, 1000-1006. neuroscience and the law. Current Opinion in Arrigo, B. A. (2007). Punishment, freedom, and the culture Neurobiology, 16, 130-134. of control: The case of brain imaging and the law. Garland, B. (2004). Framing the issues. In B. Garland (Ed.) American Journal of Law and Medicine, 33, 457-482. Neuroscience and the Law (pp. 3-6). New York: Dana Badre, D. (2008). Cognitive control, hierarchy, and the rostrol-caudal organization of the frontal lobes. Trends in Granacher, R. P. (2008). Commentary: Applications of Cognitive Sciences, 12, 193-200. functional neuroimaging to civil litigation of mild Baskin, J. H., Edersheim, J. G., & Price, B. H. (2007). Is a traumatic brain injury. Journal of the American Academy picture worth a thousand words? Neuroimaging in the of Psychiatry and the Law, 36, 323-328. courtroom. American Journal of Law & Medicine, 33, Green v. K-Mart Corp., 849 So.2d 814 (La.App. 3 Cir. Bellin, J. (2008). The significance (if any) for the federal Gurley, J. R., & Marcus, D. K. (2008). The effects of criminal justice system of advances in lie detector neuroimaging and brain injury on insanity defenses. technology. Temple Law Review, 80, 711-742. Behavioral Sciences and the Law, 26, 85-97. Bigler, E. D. (1991). Neuropsychological assessment, Harris, L. S. (1991). Postmortem magnetic resonance images neuroimaging, and clinical neuropsychology: A synthesis. of the injured brain: Effective evidence in the courtroom. Archives of Clinical Neuropsychology, 6, 113-132. Forensic Science International, 50, 179-185. Bird, J. M. (1982). Computerized tomography, atrophy and Hoskins v. State of Florida, 735 So.2d 1281 (Fla. 1999) (per dementia: A review. Progress in Neurobiology, 19, 91- Husted, D. S., Myers, W. C., & Lui, Y. (2008). The limited Blodgett-McDeavitt v. University of Nebraska, No. A-04- role of neuroimaging in determining criminal liability: An 211, 2004 Neb. App. LEXIS 329 (Neb. Ct. App. Dec. 7, overview and case report. Forensic Science International, 179, e9-e15. Bonne, O., Krausz, Y., & Lerer, B. (1992). SPECT imaging Illes, J., Lombera, S., Rosenberg, J. & Arnow, B. (2009). In in psychiatry: A review. General Hospital Psychiatry, 14, the mind's eye: Provider and patient attitudes on 296-306. functional brain imaging. Journal of Psychiatric Research, Boyd v. Bell, 410 F.3d 1173 (U.S. Ct. App. 9th Cir. 2005). 43, 107-114. Chalmers, A. F. (1999). What is this thing called Science? In re Care and Protection of Sharlene, 840 N.E.2d 918 Indianapolis: Hackett Publishing Company, Inc. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 In re Estate of Meyer, 747 N.E.2d 1159 (Ind.App. 2001). Khoshbin, L. S., & Khoshbin, S. (2007). Imaging the mind, Desmond, J. E., & Chen, S. H. A. (2002). Ethical issues in minding the image: An historical introduction to brain the clinical application of fMRI: Factors affecting the imaging and the law. American Journal of Law and Medicine, 33, 171-192. NEUROSCIENCE AND LAW Kittay, L. (2007). Admissibility of fMRI lie detection. The Pettit, M. (2007). FMRI and BF Meet FRE: Brain imaging cultural bias against "mind reading" devices. Brooklyn and the federal rules of evidence. American Journal of Law Review, 72, 1351-1399. Law and Medicine, 33, 319-340. Kronenberger, W. G., Mathews, V. P., Dunn, D. W., Wang, Praline, J., Grujic, J., Corcia, P., Lucas, B., Hommet, C., Y., Wood, E. A., Giauque, A. L., et al. (2005). Media Autret, A., et al. (2007). Emergent EEG in clinical violence exposure and executive functioning in aggressive practice. Clinical Neuropsychology, 118, 2149-2155. and control adolescents. Journal of Clinical Psychology, Rankin, S. (2008). CT and MRI. Surgery, 26, 239-243. 61, 725-737. Siharath, Rider, & Rider v. Sandoz Pharmaceuticals Kupers, R., & Kehlet, H. (2006). Brain imaging of clinical Corporation, 131 F. Supp. 2d 1347 (N.D. Ga. 2001). pain states: A critical review and strategies for future Society of Nuclear Medicine Brain Imaging Council (1996). studies. The Lancet Neurology, 5, 1033-1044. Ethical Clinical Practice of Lanter v. Kentucky State Police, 171 S.W.3d 45 (Ky. 2005). Functional Brain Imaging. The Journal of Nuclear Medicine, Le, T. H., & Hu, X. (1997). Methods for assessing accuracy 37(7): 1256-1259. and reliability in functional MRI. NMR in Biomedicine, State of Delaware v. Vandemark, No. 04-01-0225, 2004 Del. 10: 160-164. Supr. LEXIS 376 (Del. Nov. 19, 2004). McCormack v. Capital Elec. Constr. Co., 159 S.W.3d 387 State of Nebraska v. Kuehn, 728 N.W.2d 589 (Neb. 2007). (Mo. App. W.D. 2005). State of Tennessee v. Reid, 213 S.W.3d 792 (Tenn. 2006). Metting, Z., Rodiger, L.A., De Keyser, J. and van der Naalt, State of Washington v. Marshall, 27 P.3d 192 (Wash. 2001). J. (2007). Structural and functional neuroimaging in mild- Tovino, S. A. (2007). Functional neuroimaging and the law: to-moderate head injury. Lancet Neurology, 6: 699-710. Trends and directions for future scholarship. The Mobbs D., Lau H.C., Jones O.D. & Frith C.D. (2007). Law, American Journal of Bioethics, 7, 44-56. Responsibility, and the Brain. PLoS Biology, 5(4): 0693- United States v. Gigante, 989 F. Supp. 436, 438 (E.D.N.Y. Moriarty, J. C. (2008). Flickering admissibility: United States v. Hinckley, 672 F. 2d 115 (D.C. Cir. 1982). Neuroimaging evidence in the U.S. courts. Behavioral United States v. Kasim, No. 2:07 CR 56 U.S. Dist. LEXIS Sciences and the Law, 26: 29-49. 89137 (N.D. Ind. Nov. 3, 2008). Morse, S. J. (2006). United States v. Mezvinsky, 206 F. Supp.2d 661 (E.D. Pa. . Ohio State Journal of Criminal Law, 3, 397-412. United States v. Sandoval-Mendoza, 472 F.3d 645 (9th Cir. Mosteller, R. P. (2006). Evidence history, the new trace evidence, and rumblings in the future of proof. Ohio State Van Straaten, E. C. W., Scheltens, P. and Barkhof, F. (2004). Journal of Criminal Law, 3, 523-541. MRI and CT in the diagnosis of vascular dementia. Penney v. Praxair, Inc., 116 F.3d 330 (8th Cir. 1997). Journal of the Neurological Sciences, 226, 9-12. People v. Goldstein, 786 N.Y.S.2d 428 (N.Y.A.D.1 Dept. Zeki, S., & Goodenough, O. R. (2004). Law and the brain: Introduction. Philosophical Transactions: Biological People v. Williams, 2004 WL 740049 (Cal.App.4th Dist. Sciences, 359, 1661-1665. The author is a recent graduate with a M.S. degree in Neuroscience and Education from Teachers College. This article was originally submitted as a Master's Thesis in December of 2008 as a humble attempt to examine the newly emerging field of "neurolaw." I would like to dedicate this paper to my step-father. I would also like to offer my thanks to all those who motivated me to write.

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