The second research network Dr. Gazzaniga identifies as the Network on Criminal Responsibility. It is investigating the model of the human in the law and what neuroscience might add to or take away from that model. For example, he states that one project may investigate the role of early frontal lobe damage, including its impact on low social economic status. Another proposal Gazzaniga describes is investigating the ability of addicts to learn from recent mistakes and considering how that affects issues like criminal negligence and recklessness. Gazzaniga stated that other proposals are forthcoming in what is now the second of three years in the initial grant.

In response to whether the research can lead to developing more convincing evidence in evaluations, trials and sentencing for criminal law, Dr. Gazzaniga said, "Neuroscience may assist in providing more convincing evidence. Under the Federal Rules of Evidence, however, whether evidence is convincing is not the test." He points to the role of the judge, as gatekeeper for scientific evidence, who determines whether the probative value of evidence is substantially outweighed by its prejudicial effect. As mentioned above, Gazzaniga reiterated that the Law and Neuroscience Project is investigating the impact of imaging evidence on potential jurors.

Finally, in considering how brain imaging (MRI, CT, PET, EEG) may demonstrate a malfunction in cognition that might be applicable to a defense, Dr. Gazzaniga explained, "We are investigating the widespread definitions of insanity and other 'excuses' in the law." When an excuse is found the defendant is usually excused from legal responsibility but placed in a mental or health care institution. He indicated that before we decide whether and to what extent brain images can show a malfunction in cognition applicable to a defense, excuse, or insanity, we must determine what we mean by stating that someone is not "responsible" for his or her actions. Brain imaging may, according to Gazzaniga, show differences in a defendant's brain that might eventually assist in determining an excuse in law. But, he warns, "we must always be on the lookout for our tendency to give too much weight to the idea that the 'brain made me do it' concept."

DOTmed also spoke with Don Rehkopf, an experienced criminal defense attorney in Rochester, NY, who has dealt with issues of brain imaging including MRI and CT scans in defense work. He also has co-authored a chapter in a graduate level neuropsychology text. "Almost all 'shaken baby' cases have multiple scans, as do assaults / homicides with head injuries or wounds." In how imaging is used and not used in criminal law, Attorney Rehkopf says, "I have been doing criminal defense work now for 33 years - neuroimaging is here, but only as a diagnostic or demonstrative form of evidence. There is no current use of it for "lie detecting" because it cannot [at least as of this stage and level of research] pass either the Daubert or Frye tests for reliability and thus, admissibility."

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