Under the Radar: Neuroimaging Evidence in the Criminal Courtroom

165 Pages Posted: 16 Sep 2016

See all articles by Lyn M. Gaudet

Lyn M. Gaudet


Gary E. Marchant

Arizona State University - College of Law

Date Written: September 14, 2016


This Article analyzes court decisions in 361 criminal cases involving neuroimaging evidence through the end of 2015. There has been a steady upward trend in the number of criminal cases considering neuroimaging evidence with the number of reported decisions being the highest in the most recent period of 2013-2015. Neuroimaging evidence has been used in competency, guilt, and penalty phases of criminal trials, with the most efficacy being seen in the penalty phase, especially in capital cases. In order to provide a helpful analysis of uses and trends of this specific type of evidence, this Article includes an identification of the specific neuroimaging modality used or requested in each case (CT, MRI, EEG, PET, SPECT), the reason for the request for neuroimaging, the legal argument involving the imaging data, and the court’s response. In addition, common concerns regarding the use of neuroimaging data are also addressed, including the complexity of the various techniques and analysis, individual variability of the brain, the time gap between scanning and the criminal act, and the ability to make statements about groups versus about one individual. As supported by the trends demonstrated in this analysis, there has been a shift in recent years from discussion about whether neuroimaging evidence is relevant and admissible toward admissibility of this type of evidence and a focus on the substantive results and appropriate use of the neuroimaging data.

Keywords: neuroimaging, brain scan, criminal, mitigation, competency, admissibility

JEL Classification: K14, K41

Suggested Citation

Gaudet, Lyn M. and Marchant, Gary E., Under the Radar: Neuroimaging Evidence in the Criminal Courtroom (September 14, 2016). Drake Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=2838996

Lyn M. Gaudet (Contact Author)

MINDSET ( email )

2441 Ridgecrest Dr SE
Albuquerque, 87108
United States

Gary E. Marchant

Arizona State University - College of Law ( email )

Box 877906
Tempe, AZ 85287-7906
United States
(480) 965-3246 (Phone)
(480) 965-2427 (Fax)

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