Life, Death, and Neuroimaging: The Advantages and Disadvantages of The Defense’s Use of Neuroimages in Capital Cases - Lessons from the Front

Abstract

The use of neuroimaging in capital cases has become increasingly common. An informal survey of cases produced over one hundred opinions from reported decisions alone discussing the use of computed tomography (CT) scanning, magnetic resonance imaging (MRI), functional MRI, positron emission tomography (PET) scans, single-photon emission computed tomography (SPECT) scans, and similar technology in capital cases. This article gives practical advice to defense counsel considering the use of neuroimaging in a capital case. We discuss how, in the right case, this technology can be a valuable investigative tool used to produce an important component of a successful mitigation story. However, we also discuss a number of pitfalls we have encountered in our own practice. Using case examples, we elaborate on the serious risks involved, including: (a) errors in analysis; and, (b) overreliance on imaging, and provide specific guidance on how to navigate the pros and cons of the defense’s use of neuroimaging in capital cases.

Keywords: Death penalty, Capital cases, neuroimaging, tool, evidence