This contribution to the Brain Sciences in the Courtroom Symposium identifies and discusses issues important to admissibility determinations when courts confront brain-scan evidence. Through the vehicle of the landmark 2010 federal criminal trial U.S. v. Semrau (which considered, for the first time, the admissibility of brain scans for lie detection purposes) this article highlights critical evidentiary issues involving: 1) experimental design; 2) ecological and external validity; 3) subject compliance with researcher instructions; 4) false positives; and 5) drawing inferences about individuals from group data. The article’s lessons are broadly applicable to the new wave of neurolaw cases now being seen in U.S. courts

Jones, Owen D.

Shen, Francis X.

English

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.\u27 The reason is simple. In addition to caring about how people act-such as when they cause a person\u27s death or sign a will-the legal system\u27s 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\u27s 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

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Brain Scans as Evidence: Truths, Proofs, Lies, and Lessons

Vanderbilt University Law School: Scholarship@Vanderbilt Law

https://scholarship.law.vanderbilt.edu/cgi/viewcontent.cgi?article=2066&amp;context=faculty-publications

Brain Scans as Evidence: Truths, Proofs, Lies, and Lessons

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Vanderbilt University Law School: Scholarship@Vanderbilt Law