'And I Can See Through Your Brain': Access to Experts, Competency to Consent, and the Impact of Antipsychotic Medications in Neuroimaging Cases in the Criminal Trial Process

38 Pages Posted: 4 Feb 2009

Date Written: February 3, 2009

Abstract

This paper considers the implications of neuroimaging in three under discussed aspects of criminal procedure - 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 to consent 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.

Given the warning signals that have been raised by commentators as to the potentiality of juror misuse and misinterpretation of neuroimaging testimony, it is critical that we take seriously the issues raised here. I conclude that there are hidden landmines inevitably present when we think about the use of neuroimaging in criminal trials - landmines that go can infect the fairness of the trial process itself.

If an indigent criminal defendant is refused access to an independent expert in an area where jurors may uncritically accept neuroimaging testimony (because of its visual appeal and its apparent lack of falsifiability), the fairness of the entire trial remains in question. If no attention is paid to the difficult and complex ethical issues that should surface if the question of the defendant's competency to consent to being tested is not raised, trial fairness is a concern. And finally, if we ignore the reality that the neuroimaging evidence shown to jurors may not be an accurate depiction of the defendant's brain at the time of the offense - but rather, a depiction of his brain at a later time when his brain biochemistry has been altered by the imposition of medication - we willfully blind ourselves to the possibility (perhaps "likelihood") that the database presented to the jury is potentially fatally flawed.

Keywords: insanity defense, competency to consent, evidence, right to expect assistance, criminal procedure, neuroimaging, jury decisionmaking, antipsychotic medication

Suggested Citation

Perlin, Michael L., 'And I Can See Through Your Brain': Access to Experts, Competency to Consent, and the Impact of Antipsychotic Medications in Neuroimaging Cases in the Criminal Trial Process (February 3, 2009). Stanford Technology Law Review, Forthcoming, NYLS Legal Studies Research Paper No. 08/09 #20, Available at SSRN: https://ssrn.com/abstract=1337219

Michael L. Perlin (Contact Author)

New York Law School ( email )

185 West Broadway
New York, NY 10013
United States
212-431-2183 (Phone)

HOME PAGE: http://https://www.nyls.edu/faculty/faculty-profiles/emeriti_faculty/

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