Deborah Denno was quoted in a BioScience article about the role of neuroscience in the criminal justice system.
In a 2016 study in the Journal of Law and the Biosciences, Nita A. Farahany, of Duke University, examined the use of neurobiology in criminal law, including neuroimaging, behavioral genetics, neuropsychological testing, and history of brain injury. Her team found 1585 judicial opinions between 2005 and 2012 that used neurobiological evidence. “In 2012 alone, over 250 judicial opinions—more than double the number in 2007—cited defendants arguing in some form or another that their ‘brains made them do it,’” she wrote. She and others suggest that many scientists are skeptical that neuroscience is ready for legal primetime. Nevertheless, “it’s certainly entrenched now in the criminal justice system,” says law professor Deborah Denno, of Fordham University. “If you’re a good defense attorney, you’ll be submitting neuroscience evidence if it’s relevant. Courts want it.” As she described in the Boston College Law Review in 2015, Denno studied 800 criminal cases from 1992 through 2012 that used neuroscientific evidence: “We have two key evidentiary rules in the legal system. One is whether a technique is generally accepted by the scientific community. Most neuroimaging tests are. The next rule is, are the tests relevant, and typically they are.”
Often, defense attorneys use the tests to argue for reduced sentences, particularly in capital cases. “Mostly, this evidence is used to validate or confirm a diagnosis that experts would get anyway using other kinds of information,” says Denno. “For example, the evidence may validate a psychiatrist’s assessment that someone suffers from some form of mental illness. Often, courts suspect that mentally ill criminal defendants are lying. But defendants can’t fudge a brain scan. They can’t make up frontal lobe damage. Neuroimaging is powerful from that perspective.”