Actions Speak Louder Than Images: The Use of Neuroscientific Evidence in Criminal Cases

Abstract

This invited commentary for Journal of Law & the Biosciences considers four empirical studies previously published in the journal of the reception of neuroscientific evidence in criminal cases in the United States, Canada, England and Wales, and the Netherlands. There are conceded methodological problems with all, but the data are nonetheless instructive and suggestive. The thesis of the comment is that the courts are committing the same errors that have bedeviled the reception of psychiatric and psychological evidence. There is insufficient caution about the state of the science, and more importantly, there is insufficient understanding of the relevance of the neuroscientific evidence to the precise legal question being addressed. These studies demonstrate yet again that in virtually all cases, actions speak louder than images and that when the behavioral evidence is unclear, the neuroscientific evidence is scarcely helpful in resolving the legal issue.

Keywords: Criminal Law, Empirical Legal Studies, Evidence, Relevance, Courts, Sentencing, Punishment, Culpability, Excuse, Competency, Mitigation, Compulsion, Predictions, Neuroscience, Neuroimaging, Brain Imaging