Previously posted on SSRN.

Abstract

While law and neuroscience has been an increasingly popular topic in academic discourse, until now, little systematic research had examined how neuroscience evidence has actually been used in court. Do courts actually admit and consider evidence of brain trauma that might indicate that an individual did not have the capacity to achieve the mental state required for conviction of particular crime? Do they use such evidence to consider the relative culpability for the crime in the event of conviction? Do they consider or understand brain scan data? For much of the life of this infant field, we have only been able to guess as to the answers to these questions.

The four papers discussed here begin to fill that gap in the literature. Each provides a critically important window into use of neuroscience evidence in a large sample of criminal cases of a particular jurisdiction. Importantly, this work provides a guidepost for neuroscientists and legal scholars as to what types of neuroscience evidence courts find relevant and useful—critically important information that should allow scholars to target theirwork if they hope for it to have practical effects in the courts. Essentially, this type of research provides the critical link between producers of the law and neuroscience product (i.e., researchers producing scholarship) and the most important consumers of that product (i.e., courts applying that research to more fairly resolve cases).

In this peer commentary, I briefly provide a summary of what I think are the most important aspects shared between four papers, and discuss critical differences between them. I also provide some suggestions for follow-up work, building on the framework laid out by these authors, and make some predictions as to how neuroscience evidence might be used in the future.

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