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Abstract

A review of the literature on neuroimaging, predictably, reveals a broad array of positions, promises and prophecies. Carter Snead argues that the ambition of cognitive neuroscientists is “to use the claims of their discipline and the new powers conferred by neuroimaging to overthrow retributive justice as a legitimate justification for criminal sanctions.” In this paper, I do not take sides on this debate. Rather, I discuss a related, but distinctly separate issue: which of these positions will jurors think is right, especially in the context of deciding insanity defense cases. The primary and robust debate that has taken place so far over neuroimaging in law and medical journals has highlighted a series of law-and-policy questions dealing primarily with reliability, admissibility, and availability. Scholars have already expressed an extensive range of opinions on the value, and perhaps even the ethics, of this testimony. Here, I shift the focus of this paper.

Thus, when we consider the topic that I will be addressing in this paper – the impact of neuroimaging evidence on juror decision making in insanity defense cases – we need to recalibrate our focus so as to incorporate other questions that are as essential (most likely more essential) to the resolution of the underlying dilemma: (1) to what extent will such evidence – apparently less inherently susceptible to falsification – have on jurors whose profound suspicion of mental state opinion testimony is well-documented; (2) will this “falsifiability issue” even matter to jurors whose personal values/moral codes reject the notion of any non-responsibility verdict because it is dissonant with their heuristics-driven, false “ordinary common sense”; (3) will there now be some shred of truth in one of the standard insanity defense myths(that the insanity defense is a “rich man’s ploy”); that is, will the “rich and famous” be able to disproportionately rely on neuroimaging testimony in their trials?; (4) to what extent will sanism drive juror behavior in such cases; and (5) what are the therapeutic jurisprudence implications of the answers to all of these questions?

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