23 Pages Posted: 24 Feb 2011 Last revised: 24 Aug 2011
Date Written: February 23, 2011
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: 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