Daubert on the Brain: How New Mexico's Daubert Standard Should Inform Its Handling of Neuroimaging Evidence

Abstract

The scientific and expert evidence admissibility standard as set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc. and its progeny have been the subject matter of legal scholarship for more than two decades. Daubert remains the reigning guidance on how to approach the admissibility of scientific evidence and has been adopted by the majority of jurisdictions across the country. Since being decided Daubert has also been the subject of much fear and relief, support and challenge from attorneys seeking both greater and lesser limits on the inclusion of scientific evidence in the courtroom. Regardless of whether one believes judges should enforce their power in deciding where the line between junk science and real science is drawn, or if the fact finder should see all evidence and determine its weight accordingly, Daubert is as relevant today as it was in 1993 when the case was decided. This paper seeks to add to the body of literature on how best to analyze scientific evidence by highlighting the importance of a recent contribution to legal scholarship and its application to the growing amount of proffered neuroimaging evidence. Specifically, this paper discusses the G2i framework as articulated by law Professors Faigman, Monahan, and Slobogin, when evaluating proffered expert evidence and corresponding testimony in states that have adopted the Daubert approach. Taking a bifurcated view of all expert evidence, the G2i framework provides courts with the structure for assessing the reliability of both the scientific theory’s general proposition and the individual application of that general proposition to the facts at hand.

Part I of this article reviews the expert evidence admissibility standard set forth in Daubert v. Merrell Dow Pharm., Inc. and New Mexico’s adoption of the Daubert standard in State v. Alberico. Part II of the article provides a summary of the framework expressed in the 2014 publication Group to Individual (G2i) Inference in Scientific Expert Testimony. Part III explores case law where DNA testing was considered as evidence and why the courts have concluded that DNA evidence complies with Daubert/Alberico standards. Part IV provides a summary of the use of neuroimaging evidence in court and provides an overview of the different neuroimaging techniques being used. Neuroimaging evidence is being increasingly offered in both criminal and civil cases and as a result we believe that a basic familiarity with the different types of techniques is important for all jurists. Part V highlights the distinction between novel science and clinically-established science in showing that Daubert finds its highest purpose when evaluating novel techniques and theories. Part VI concludes that certain types of neuroscience data can be and has been deemed reliable at both the general and individual level through the application of Daubert under a G2i framework.

Keywords: Neuroscience, Neuroimaging, Daubert, Frye, Alberico, Admissibility, G2i, DNA, MRI, VBM, Voxel Based Morphometry, Electroencephalography, EEG