Before I offer some thoughts on that question, let me mention three real-life cases in which cutting-edge neuroscientific evidence either did – or conceivably might in a not-so-distant future – influence the outcome of a criminal prosecution. In the first case, reported last week in the New York Times, EEG brain-fingerprinting-type evidence was admitted against a woman on trial in India for murdering her husband. She was convicted. In the second case, in England recently, neuroscientists performed an fMRI lie-detection scan on a woman who had previously been convicted of poisoning a child in her care. She claimed that she was innocent, but the jury believed the prosecutor’s allegation that the caretaker had poisoned the child, presumably because she was suffering from Munchausen’s syndrome by proxy. According to the researchers, the fMRI data was consistent with the woman’s claim of innocence. And finally, in the third case, just three days ago and two hours before he was scheduled to die by lethal injection, the Supreme Court granted a stay of execution in the case of Troy Anthony Davis. Mr. Davis has been on death row for the last eighteen years for murdering a police officer in Savannah, Georgia. He was convicted solely based on eyewitness testimony – there was no physical evidence tying him to the murder. Seven of the nine eyewitnesses have now recanted (one of the other two is the person who, if Troy Davis did not shoot the officer, is no doubt the real killer). Two of the witnesses said they lied at the trial because they were pressured by police to name Davis as the killer. The Georgia Supreme Court refused to order a hearing in the case. The majority asserted that the trial testimony of the witnesses was more likely true than the recantations. On Monday, the U.S. Supreme Court will decide whether to hear the case. If it declines, the stay will automatically terminate and Troy Davis will be executed.
"Black Boxes: fMRI Detection and the Role of the Jury,"
Akron Law Review: Vol. 42
, Article 9.
Available at: http://ideaexchange.uakron.edu/akronlawreview/vol42/iss3/9