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Can neuroforensics explain some criminal behavior?

| Apr 10, 2018 | Criminal Defense |

As a possible link between brain trauma and violent or unpredictable behavior becomes clearer, neuropsychology and neuroscience are increasingly being cited in criminal cases. Typically, defendants aren’t trying to excuse their behavior altogether but to provide an explanation that could mitigate their punishment. A committee of the National Academies of Sciences, Engineering and Medicine is now meeting to discuss the courtroom use of what they term “neuroforensics.”

This evidence may include brain scans, behavioral tests, psychological evaluations and evidence of earlier brain injuries, head trauma or neurological disorders. If the science indicates that these conditions can alter a person’s behavior — and it seems to — it only makes sense for the evidence to be brought into court as a sentencing factor.

It is becoming increasingly common for that to happen. According to an analysis by a Duke University law professor, there were 250 judicial opinions in 2012 that discussed defendants’ claims that a past brain condition affected their behavior. That’s more than twice the number of 2007 opinions the professor found discussing such claims. Interestingly, brain scans such as CTs and MRIs were only noted in about 15 percent of those opinions.

The committee of National Academy scientists will be focused largely on what neuroforensic evidence should be admissible in court and how it would best be presented. Generally, courts allow scientific evidence when it is shown to be generally accepted as reliable and relevant within the scientific community. The committee will be discussing what scientific techniques and studies meet that standard.

For example, the committee will likely propose some standards on the “state of the science” in how brain disorders affect behavior. What well-performed, statistically meaningful studies have been performed to demonstrate the effect? What tests, such as CTs, EEGs, MRIs and fMRIs, can be used to detect a brain disorder that might have the effect? What can lawyers reasonably claim, illustrate or reconstruct for judges and juries?

“This is such a fraught area, and it’s prone to hype and overstatement,” one committee member says of neuroforensics. This meeting is the starting point.”

With brain science beginning to be more common in the courtroom, it’s time to get a firm hold on what the best science is and how it can be fairly presented in court.