Brain Scans as Evidence: Truths, Proofs, Lies, and Lessons

23 Pages Posted: 24 Feb 2011 Last revised: 24 Aug 2011

See all articles by Francis X. Shen

Francis X. Shen

Harvard University - Center for Bioethics; Harvard University - Department of Psychiatry; Harvard University - Harvard Law School; MGH Center for Law, Brain & Behavior

Owen D. Jones

Vanderbilt University - Law School & Dept. of Biological Sciences

Date Written: February 23, 2011

Abstract

This contribution to the Brain Sciences in the Courtroom Symposium identifies and discusses issues important to admissibility determinations when courts confront brain-scan evidence. Through the vehicle of the landmark 2010 federal criminal trial U.S. v. Semrau (which considered, for the first time, the admissibility of brain scans for lie detection purposes) this article highlights critical evidentiary issues involving: 1) experimental design; 2) ecological and external validity; 3) subject compliance with researcher instructions; 4) false positives; and 5) drawing inferences about individuals from group data. The article’s lessons are broadly applicable to the new wave of neurolaw cases now being seen in U.S. courts.

Keywords: neurolaw, law and neuroscience, law and the brain, bioscience, neuroscience and law, Daubert, Frye, lie detection, polygraph, brain scans, fMRI, EEG, Semrau, scientific evidence, admissibility

Suggested Citation

Shen, Francis X. and Jones, Owen D., Brain Scans as Evidence: Truths, Proofs, Lies, and Lessons (February 23, 2011). Mercer Law Review, Vol. 62, p. 861, 2011, Vanderbilt Public Law Research Paper No. 11-2, Available at SSRN: https://ssrn.com/abstract=1736288

Francis X. Shen (Contact Author)

Harvard University - Center for Bioethics ( email )

641 Huntington Ave.
Boston, MA 02115
United States

Harvard University - Department of Psychiatry ( email )

Boston, MA
United States

Harvard University - Harvard Law School ( email )

1563 Massachusetts Avenue
Cambridge, MA 02138
United States

MGH Center for Law, Brain & Behavior ( email )

55 Fruit Street
Boston, MA 02114
United States

Owen D. Jones

Vanderbilt University - Law School & Dept. of Biological Sciences ( email )

131 21st Avenue South
Nashville, TN 37203-1181
United States

HOME PAGE: http://law.vanderbilt.edu/bio/owen-jones

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