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Brain Imaging and Criminal Law

by Astrid Fiano, DOTmed News Writer | May 04, 2009

At the moment, Rehkopf does not see any ethical issues in using brain imaging in law, "unless you get to the "truth/lie" function - that is still a hypothesis that medicine and science have not verified or confirmed to the level of general acceptance." However, Rehkopf is also critical of the Indian brain imaging/lie detector case. "The 'Indian' case is not at all about 'imaging' that uses electrical sensing to 'map' brain activity. It's a totally unproven process that depends on proprietary software developed by its inventor. It has been soundly criticized if not outright debunked."

Criminal defendants have long attempted to introduce brain scans to demonstrate lack of criminal responsibility, mitigation of sentence, and competency, with mixed success. A few typical cases on the subject include:

United States v. Erskine, 588 F.2d 721 (9th Cir. 1978). This case involved an appellant who sought review of his conviction on the grounds that the trial court should have allowed his medical doctor to testify (including using a brain scan) that he lacked the mental capacity to form the specific intent of his crime. In this case, the conviction was overturned and a new trial ordered.

People v. Weinstein, 156 Misc. 2d 34 (N.Y. 1992). In a New York State case of a man charged with second degree murder, the defense wanted to introduce the defendant's positron emission topography (PET) brain scan, as part of the defense that the defendant lacked criminal responsibility as the result of organic brain damage. The court held that the test was admissible.

State v. Marshall, 27 P.3d 192 (Wash. 2001) Here the defendant moved to withdraw a guilty plea for murder due to evidence of incompetency, including results from an MRI and EEG. The trial court denied the motion. The defendant appealed the conviction and death sentence. The defendant's guilty plea was vacated, the conviction was reversed, and the matter was remanded.

State v. Zimmerman,166 Ariz. 325 (AZ Court of Appeals 1990) A criminal defendant appealed his conviction of first degree murder, arguing the trial court erred in excluding expert testimony as to a Brain Electrical Activity Mapping (BEAM) performed on defendant, showing there were abnormalities in the defendant's temporal lobe. The appellate court upheld the trial court's exclusion of the BEAM because it was not generally accepted in the neurological community.

People v. Chul Yum, 111 Cal. App. 4th 635 (Cal App 4th 2003) In this criminal appeal, the appellant argued that the trial court erred by not permitting evidence of his Single Photon Emission Computed Tomography (SPECT) brain scan showing post-traumatic stress disorder (PTSD). However, the appellate court ruled that the SPECT brain scan was not admissible to show the defendant suffered from PTSD, because the majority of qualified members in the neurology and brain imaging community did not support the use of the SPECT scans to diagnose mental disorders like PTSD and also considered the technique generally unreliable for that purpose.