'My Brain is so Wired': Neuroimaging's Role in Competency Cases Involving Persons with Mental Disabilities

26 Pages Posted: 10 Aug 2017 Last revised: 29 May 2018

See all articles by Michael L. Perlin

Michael L. Perlin

New York Law School

Alison Lynch

Disability Rights New York

Date Written: May 20, 2018


In this article, we consider the therapeutic jurisprudence implications of the use of neuroimaging techniques in assessing whether a defendant is competent to stand trial, a topic that has been the subject of no prior legal commentary. Recent attention paid to neuroscience in the criminal process has focused on questions of mitigation and competency to be executed, but the potential of such evidence transcends these areas.

There has been almost no attention paid to its potential impact on a critical intersection between the criminal trial process and inquiries into mental or psychological status: a defendant’s trial competency. Less than a handful of reported cases consider this question, and it is “under the radar” for most relevant scholarship as well, notwithstanding that (1) this inquiry is, numerically, the most important “disability law” question relevant to criminal law, (2) the costs of these hearings are staggering, and (3) the incompetency status in no way admits or presumes factual guilt. It is imperative that the ways in which neuroimaging may influence competency determination be studied and understood.

We review legal standards for competency in the context of mental disabilities, then examine what neuroimaging may be able to add to these determinations. We examine this in the context of therapeutic jurisprudence, discussing whether the introduction of scientifically-based evidence of incompetency will lead to a therapeutic outcome for the defendant, no matter what its usefulness to the court. We also consider the important, related questions of (1) defense counsel’s competency to provide effective representation in this important area of law-and-science, and (2) an indigent defendant’s access to such testimony.

Again, there is virtually no legal scholarship on this important topic. We hope that this paper encourages others – judges, scholars, policymakers, forensic mental health professionals – to think carefully about the questions we seek to address and our proposed solutions.

Keywords: therapeutic jurisprudence, competency to stand trial, neuroscience, neuroimaging, disability law, criminal procedure

Suggested Citation

Perlin, Michael L. and Lynch, Alison, 'My Brain is so Wired': Neuroimaging's Role in Competency Cases Involving Persons with Mental Disabilities (May 20, 2018). NYLS Legal Studies Research Paper No. 3016035, 27 B.U. PUB. INT. L.J. 73 (2018) , Available at SSRN: https://ssrn.com/abstract=3016035 or http://dx.doi.org/10.2139/ssrn.3016035

Michael L. Perlin (Contact Author)

New York Law School ( email )

185 West Broadway
New York, NY 10013
United States
212-431-2183 (Phone)

HOME PAGE: http://https://www.nyls.edu/faculty/faculty-profiles/emeriti_faculty/

Alison Lynch

Disability Rights New York ( email )

25 Chapel St
Suite 1005
Brooklyn, NY 11201
United States

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