HealthLawProf Blog

Editor: Katharine Van Tassel
Case Western Reserve University School of Law

Wednesday, May 25, 2022

How Experts Have Dominated the Neuroscience Narrative in Criminal Cases for Twelve Decades: A Warning for the Future

Deborah W. Denno (Fordham University), How Experts Have Dominated the Neuroscience Narrative in Criminal Cases for Twelve Decades: A Warning for the Future, 63 Wm. & Mary L. Rev. 1215 (2022):

This Article examines how experts have long dominated the neuroscience narrative in U.S. criminal cases, especially insanity cases, which often concern a defendant's brain damage or abnormality. To support these arguments, this Article reports the results of my original Twelve- Decade Neuroscience Study ("The Study") examining the criminal justice system's use of the insanity defense in all criminal cases—totaling 8,358—which involved neuroscientific evidence from 1900 to 2020. This scope helps trace the impact of critical psychological and societal developments more precisely and determine the legal system's future reliance on neuroscientific evidence. For example, my research shows that starting in the 1980s, the use of the insanity defense has plummeted over the decades despite a growing infusion of neuroscientific evidence generally into the criminal justice system. While there are several potential reasons for this decline, the Article suggests that attorneys have started incorporating neuroscience in more tailored and specific ways, such as cognitively customized defenses and mitigating factors.

My Study also shows that, despite the increasing influx of neuroscientific evidence and its purportedly greater objectivity into the criminal justice system, experts for the defense and prosecution still sway how that evidence is cast when it concerns a defendant claiming insanity. For example, defense experts employ narratives to emphasize the impact of neuroscientific evidence on a defendant's brain and behavior to mitigate punishment. In contrast, prosecutors increasingly use accusations of malingering in their attempts to win cases—claiming that defendants are lying about their disorders. This Article concludes that in years hence, courts may expect seemingly more impartial information derived from neuroscientific tests to incorporate more accurate and precise indicators of the human mental condition. Whether the field of neuroscience will succeed in that quest will be one more question for the future and the experts who still may try to shape it.

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