Last fall, I presented a paper at a conference on neuroimaging and the law looking at the way jurors were likely to construe neuroimaging evidence in insanity defense cases. I tried to balance jurors’ likely positive response to the perceived characteristics of this evidence—vivid, objective, quantifiable, advanced—with their likely negative response to the use of this evidence in such cases (reflecting their prejudice, hostility, and hatred toward insanity pleaders)—and concluded that I was “not at all sure that the pizzazz of neuroimaging testimony—not withstanding its colorfulness and its propensity to reductionism—will trump these deep-seated attitudes.” In short, I sought to make the point that the science of neuroscience has to be assessed in the sociopolitical context of the specific question of law that is central to the specific case before the court.
Again, as I stressed in my earlier article, the reality is that neuroimaging is fraught with uncertainties, that the steps used in the production and presentation of neuroimaging evidence are “[n]ot only . . . not standardized, they are easily manipulated by a person with knowledge of the technology.” Some researchers characterize neuroimaging evidence as “indistinct.” Amanda Pustilnik, by way of example, concludes that “neuroscience cannot provide complete, or even sufficient, explanations of criminal violence by reference primarily to purported neurobiological dysfunctions within isolated parts of offenders’ brains.” Other scholars charge that “researchers, clinicians, and lawyers are seduced into becoming true believers in the merits of [brain imaging] for understanding the relationship between brain and behavior.” Stacey Tovino argues that the fMRI offers only “illusory accuracy and objectivity.” But what is clear is that the existence of neuroimaging techniques has changed the contours of the playing field, and no matter which side of the divide we find ourselves on, we must acknowledge that reality.
With this as backdrop, I turn to the topic that I have taken on for this article: what impact neuroimaging evidence will have on a series of “criminal procedure situations,” the resolutions of which are inextricably intertwined with pre-existing socio-political views and attitudes of judges and jurors: (1) the implications of Ake v. Oklahoma (an indigent defendant’s access to expert testimony) in cases where neuroimaging tests might be critical; (2) the defendant’s competency in consenting to the imposition of a neuroimaging test or examination; and (3) the impact of medications—specifically, antipsychotic medications—on a defendant’s brain at the time that such a test is performed. I hope that this article spurs some additional hard thinking about this topic.