Neuroimaging showing brain abnormalities is increasingly being introduced in criminal court proceedings to argue that a defendant could not control his behavior and should not be held responsible for it. But imaging has questionable probative value because it does not directly capture brain function or a defendant’s mental states at the time of a criminal act. Advanced techniques could transform imaging from a coarse-grained measure of correlations between brain states and behavior to a fine-grained measure of causal connections between them. (...) Even if this occurs, bias and other attitudes may unduly influence jurors’ interpretation of the data. Moreover, judges’ decisions about whether neuroimaging data is legally relevant and admissible are normative decisions based on more than empirical evidence. Advanced neuroimaging will better inform assessments of criminal responsibility but will not supplant or explain away the psychological and normative foundation of the criminal law. (shrink)

The ArgumentIn this article I argue that brain images constructed with computerized tomography (CT) and positron emission tomography (PET) are part of a category of “expert images” and are both visually persuasive and also particularly difficult to interpret and understand by non-experts. Following the innovative judicial analogy of “demonstrative evidence” traced by Jennifer Mnookin (1998), I show how brain images are more than mere illustrations when they enter popular culture and courtrooms. Attending to the role of experts in producing data (...) in the form of images, in selecting extreme images for publication, and in testifying as to their relevance, I argue that there is an undue risk in courtrooms that brain images will not be seen as prejudiced, stylized representations of correlation, but rather as straightforward, objective photographs of, for example, madness. (shrink)