Neuroscientific Evidence as Instant Replay
Journal of Law and the Biosciences
This commentary offers a reflection on the state of neuroscientific evidence, as revealed by four empirical studies recently published in the Journal of Law and the Biosciences. I suggest that these studies lead to four broad conclusions about the current state of neuroscientific evidence in criminal courts. First, neuroscientific evidence is being used more than in years past, but still being used quite infrequently. Second, the legal contexts in which neuroscientific evidence is proffered vary widely, both within and across countries. Third, prosecutors as well as criminal defense attorneys are introducing brain evidence. Fourth, differences in legal structures and legal doctrine help to explain some of the variation in the introduction of neuroscientific evidence. In the second part of the commentary, I consider a series of unanswered questions that the studies also raise. I finish in the third part of the commentary with a prediction: the future use of neuroscientific evidence in court will be similar to the use of instant replay in contemporary sports. That is, although neuroscientific evidence is likely to be used in only a small percentage of cases, it can still have a transformative impact. Like instant replay, neuroscientific evidence is more likely to be used when the stakes are high, and when judgments based on other observational data are on a borderline. And just as the use, and effect, of instant replay depends critically on the availability of proper camera angles, so too will the utility of neuroscientific evidence depend on the ability of medicine and science to provide brain data that is legally relevant. I expect that if this future comes to pass, then the legal system will – just as professional sports have – struggle at first. Ultimately, however, the law will find a workable solution to the use of neuroscientific evidence that will advance more just outcomes while not unduly delaying proceedings.
Francis X. Shen, Neuroscientific Evidence as Instant Replay, 3 J.L. & Biosciences 434 (2016), available at https://scholarship.law.umn.edu/faculty_articles/606.