A Fair Trial: When the Constitution Requires Attorneys to Investigate Their Clients' Brains

49 Pages Posted: 21 Feb 2014 Last revised: 26 May 2014

See all articles by Ellen Koenig

Ellen Koenig

Fordham University School of Law

Date Written: November 1, 2013


The U.S. Constitution guarantees every criminal defendant the right to a fair trial. This fundamental right includes the right to a defense counsel who provides effective assistance. To be effective, attorneys must sometimes develop specific types of evidence in crafting the best defense. In recent years, the U.S. Supreme Court has found that defense attorneys did not provide effective assistance when they failed to consider neuroscience. But when must defense attorneys develop neuroscience in order to provide effective assistance? This question is difficult because the standard for determining effective assistance is still evolving. There are two leading approaches. First, in Strickland v. Washington, the Court adopted a two-prong ″reasonableness″ test, which, according to Justice O’Conner, may result in court decisions that fail to properly protect a criminal defendant’s rights. Recently, courts have adopted a second approach based on guidelines promulgated by the American Bar Association.

This Note aims to answer this question. It first provides a background on the right to effective assistance of counsel and briefly describes neuroscience evidence, oppositions to and limitations on in its use, and its admissibility in court. Second, this Note attempts to give some guidance to attorneys by exploring the American Bar Association and U.S. Supreme Court standards. Third, it summarizes the results of a statistical analysis conducted by the author, which helps further define when courts require attorneys to develop neuroscience evidence. It concludes by arguing that attorneys need guidance to ensure they are not violating the Sixth Amendment. This Note expands on the American Bar Association’s standard and suggests a framework attorneys may use to determine whether they should develop neuroscience evidence to ensure that their client has a fair trial.

Keywords: Neuroscience, habeaus, death penalty, American Bar Association, mental health, fMRI, EEG, PET, MRI, BEAM, brain scan, evidence, mental health evidence, neuroscience and law, neurolaw, Sixth Amendment, Effective Assistance of Counsel, ineffective assistance of counsel, criminal defense, trial

JEL Classification: C45, K14, K10, K41, K42, K40, K49, K39, K19, K00

Suggested Citation

Koenig, Ellen, A Fair Trial: When the Constitution Requires Attorneys to Investigate Their Clients' Brains (November 1, 2013). Fordham Urban Law Journal, Vol. 41, No. 177, 2013, Available at SSRN: https://ssrn.com/abstract=2396147

Ellen Koenig (Contact Author)

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States

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