Unasked (and Unanswered) Questions About the Role of Neuroimaging in the Criminal Trial Process

Abstract

The robust neuroimaging debate has dealt mostly with philosophical questions about free will, responsibility, and the relationship between brain abnormalities, violence, and crime. This debate, however, obscures several important issues of criminal procedure to which little attention has as of yet been paid: an indigent defendant's right of access to expert testimony in cases where neuroimaging tests might be critical; a defendant's competency to consent to the imposition of a neuroimaging test; and the impact of antipsychotic medications on a defendant's brain at the time that such a test is performed. This article considers these questions from the perspectives of both law and neuropsychology, and, from a clinical perspective, also focuses on identifying cases appropriate for referrals for neuroimaging studies, including preliminary testing based on neuropsychological assessment; understanding the importance of brain impairment as it relates to criminality and violence; establishing criteria for determining competency to consent to such tests, and the potential impact of medications on brain functioning when neuroimaging tests are conducted.

Keywords: Neuroimaging, Forensic Testimony, Criminal Orcedure, Competency, Expert Witnesses, Violence, Forensic Neuropsychology