When Law and Neuroscience Collide


Legal, neuroscientific, and medical scholars, along with active and retired judges, discussed the impact of neuroscience advances in the courtroom, on sentencing, and in the criminal justice system during the Fordham Law Review’s February 26 symposium titled “Criminal Behavior and the Brain: When Law and Neuroscience Collide.”

Deborah W. Denno, Arthur A. McGivney Professor of Law, presented findings from her research analysis of 800 cases where attorneys used neuroscience, or the evidence-based approach to understanding the science of the mind, to highlight a defendant’s mental state or to express the extent of a victim’s injury.

“Whether people like it or not or think the science is not ready, courts are accepting this evidence,” said Denno, whose Neuroscience and Law Center co-sponsored the event.

The all-day symposium’s four panels highlighted, among other items, how neuroscience has sparked conversations about the culpability of young adults who commit crimes, empathy for capital murder defendants, and free will, in general. Fordham Law professors Clare Huntington, Tanya Hernandez, and James Cohen each moderated panels.

Dating back to 2009, the U.S. Supreme Court has ruled attorneys have an obligation to present neuroscience evidence into court on behalf of their clients, Denno explained during her 15-minute speech. For this reason, courts find defense attorneys have provided ineffective assistance of counsel more often for their failure to introduce neuroscience evidence than any other evidentiary reason, she explained.

Denno’s research illuminated how prosecutors misused neuroscience when assessing victim’s injuries, particularly those involving MRI and CT scans on children under two years old. It is not uncommon, according to her research, for a prosecutor to determine intent in so-called shaken baby syndrome cases based exclusively on this evidence, even if brain scans at another point in the child’s development do not exist.

Denno made her comments during a panel titled “Neuroscience in the Courtroom,” which featured varying opinions about the science’s readiness for court cases.

When neuroscientists are able to reduce the chance of error to below five percent then it will be ready for court, suggested Donald W. Pfaff, professor of neurobiology and behavior at the Rockefeller University. Neuroscience is “as ready as any other science” for use in the courtroom, countered Ruben C. Gur, director of neuropsychology, the Brain Behavior Laboratory, and the Center for Neuroimaging in Psychiatry at the University of Pennsylvania.

Courts accept testimony from forensic psychiatrists on questions of criminal insanity despite experts in this field having a 50 percent success rate in their predictions, Denno said. By contrast, the idea that courts would not accept scientific scans that show brain damage proving a defendant’s mental illness is troubling, she noted.

The day’s second panel, “Neuroscience and Sentencing Policy,” highlighted what studies of the brain are revealing about not only those who commit crimes but also the jury members who decide guilt or innocence.

Finding empathetic jurors is not as simple as picking a certain gender or race, said Cornell Law Professor Sherri Lynn Johnson, noting a person’s own implicit bias can prevent them from seeing defendants as human.

“It’s not only understanding the science but understanding ourselves,” added Judge Bernice B. Donald of the U.S. Court of Appeals for the Sixth Circuit. “It’s not only how we see the evidence but how we see people.”

How the criminal justice system views young adults remains an ongoing conversation.

A person’s brain is not fully matured at age 21, said Columbia Law Professor Elizabeth S. Scott, noting this would come as no surprise to parents or college administrators. The criminal justice system then should not treat a 21-year-old the same way it would a 30- or 50-year-old, she explained.

“When young adults engage in criminal activity they’re more like juveniles than adults, and the law ought to recognize this reality,” Scott said.

Keeping young adults in juvenile facilities is not the solution, said University of Virginia Law Professor Richard J. Bonnie, adding this puts undue pressure on facilities and social networks inside these facilities. Instead, he said he supported a rehabilitative approach within the framework of the current criminal justice system.


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