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Abstract:
First, this article exhaustively but briefly reviews the variety of forensic sciences and the bases (sometimes little more than assumptions) on which they rest - drawing a major distinction between those that assert the ability to individualize crime scene evidence to its one and only source (and which, ironically, do so without applying any basic science) and those which do not assert individualization (and which generally are applications of basic sciences). Second, the article discusses the problem recognized by the Supreme Court of analytical gaps between available data and the opinions of some experts, and the widespread manifestation of such gaps in the identification/individualization subfields of forensic science. Third, the article assumes that most judges most of the time will admit most such evidence regardless of the commands of the Daubert trilogy and the rules of evidence, and offers practical suggestions about what judges might do to improve their management of such testimony and to protect factfinders from the most misleading claims and unsupportable opinions, while still admitting the testimony into evidence.

law and science, forensic science, evidence, Daubert

Abstract:
This article provides a new perspective on wrongful convictions - what I term misconvictions. Focusing on the intersection of ethics and expert evidence in criminal cases, the article specifically considers the role of judges and prosecutors, collectively referred to as the ministers of justice. The article has a dual focus: first, to explain the forensic science concerns that contribute to misconvictions; and second, to contemplate the ethical roles that the ministers of justice have in creating misconvictions by their management of expert evidence. In addition to explaining how problematic forensic science can contribute to wrongful convictions, the article details the ethical concerns of prosecutorial and judicial acts and omissions. The article concludes with some suggested changes of a legal and ethical nature that might help reduce the rate of misconvictions.

criminal law, prosecutor, expert evidence, ethics, foresnic science, wrongful convictions

Abstract:
This article considers the role of self-defense in both international law and U.S. criminal law. Recognizing that some state courts engage in an overly rigid interpretation of imminence as it relates to self-defense by battered women, the article suggests that the international law concept of anticipatory self-defense (ASD) might provide a useful framework for the criminal law canon. In addition to acknowledging the shared moral foundation for self-defense in international and domestic law, the article asserts two additional reasons for making the comparison: first, terrorists act much the way abusers do, seeking to control, diminish, and destroy lives by unpredictable attacks on their victims; and second, terrorists and abusers attack repeatedly, creating fear and uncertainty in the victims about the nature, timing and degree of the next attack. Thus, the uncertain and repetitive nature of an abuser's attacks should permit juries to consider the danger to the battered woman in a more realistic temporal form than many courts currently allow.

In discussing the parallel between international and domestic law, the article distinguishes the concept of ASD from the Bush Preemption Doctrine, which some scholars believe stretches ASD beyond the breaking point. In making this comparison and rejecting the overly flexible concept of preemption, the article addresses the specific circumstances that should allow the invocation of ASD as a legitimate form of self-defense.

Criminal, battered women, international, evidence, self-defense

Abstract:
The historical use of science in the search for truth has posed consistent evidentiary problems of definition, causation, validity, accuracy, inferential conclusions unsupported by data, and complications of real-world applications. As the Innocence Project exoneration data show and the National Academy of Science Report on Forensic Science suggest, our reach in this area may well exceed our grasp. This article argues that the neuroimaging of deception - focusing primarily on the functional magnetic resonance imaging (fMRI) studies done to date - may well include all of these problems. This symposium article reviews briefly the types of neuroimaging used to detect deception, describes some of the specific criticisms leveled at the science, and explains why these small group of studies are not yet courtroom-ready. Arguing that the studies meet neither the general acceptance nor reliability standards of evidence, the article urges courts to act with restraint, allowing time for further studies, further robust criticism of the studies, additional replication studies, and sufficient time for moral, ethical, and jurisprudential rumination about whether the legal system really wants this type of evidence.

evidence, neuroscience, fMRI

Abstract:
We may have moved in the West toward a standard in which “no means no” has the force of criminal law behind it. But are we ready for a standard in which only “yes means yes?” And if so, getting to yes may be a winding path to follow. The concept of consent, some of the symposium authors note, is a far more complicated inquiry than many appreciate. Consider the Eliot quotation above: Is it consensual if his exploring hands encounter no defense? Is indifference sufficient to establish consent and if not, should his act be considered criminal rather than just boorish? This is only one, among many, questions with which the symposium authors grapple.

rape, consent, criminal law

Abstract:
This article introduces the various subjects and articles from the Neuroscience, Law and Government Symposium, published in the Akron Law Review (2009) following the Conference held at the University of Akron School of Law in September, 2009. The Conference and Symposium consider both the explosion in neuroscience research and its implications for both law and government, beginning with remarks by the keynote speaker, Professor Henry T. Greeley. A substantial portion of the symposium addresses the implications of scientists’ efforts to depict deception by means of functional magnetic resonance imaging (fMRI), including an article on the legal reliability of such evidence, the fourth and fifth amendment implications of such evidence, and the persuasiveness of such evidence with juries. The symposium also includes other varied topics, including the implications of neuroscience on the insanity defense, juvenile justice, predictions of disease or criminality, enhancing performance, and the role of neuroscience in legislation about women’s medical conditions

neuroscience, evidence, fMRI, fourth amendment

Abstract:
This article explores the admissibility of neuroimaging evidence in U.S. courts, recognizing various trends in decisions about such evidence. While courts have routinely admitted some neuroimages, such as CT scans and MRI, as proof of trauma and disease, they have been more circumspect about admitting the PET and SPECT scans and fMRI evidence. With the latter technologies, courts have often expressed reservations about what can be inferred from the images. Moreover, courts seem unwilling to find neuroimaging sufficient to prove either insanity or incompetency, but are relatively lenient about admitting neuroimages in death penalty hearings. Some claim that fMRI and "brain fingerprinting'' are able to detect deception. Other scholars argue that brain fingerprinting is a dubious concept and that fMRI is not yet sufficiently reliable. Moreover, there are substantial concerns about privacy and the perils of mind reading implicit in such technology. Yet, there is a movement to try to make these new technologies "courtroom ready'' in the near future, raising a host of legal, policy, and ethical questions to be answered.

law, science, medicine