Last time, we began looking at the issue of neuroscience and its increasing use in criminal cases. As we noted, neuroscience evidence is introduced in a fair number of cases, but there is still a great deal of caution about permitting such neuroscience evidence in court.
A big reason for the hesitation surrounding neuroscience evidence is the state-sanctioned use of questionable scientific evidence in the past. Not only are there the antique examples like eugenics and lobotomies, there are also the more recent examples of hypnotic regression in child abuse cases and forensic hair analysis. With respect to the latter, the FBI acknowledged last year that there are major flaws with the science of forensic hair analysis, which had been used for over two decades.
Areas where the validity of neuroscience has been accepted in the legal system include addiction and brain development in adolescents. The fact still remains that, at present, there is simply a lack of scientific basis for use of neuroscience in many legal matters.
In criminal cases, one of the important tasks of a criminal defense attorney is to ensure that all evidence submitted for the case is scrutinized as to its relevance and reliability, as well as its prejudicial effect. Clearly, evidence which is not relevant to any material issues in a criminal case has no value. Likewise, evidence which is relevant but not reliable doesn’t have a lot of value, either. Any forensic evidence the state attempts to bring into a criminal case must be scrutinized for reliability. In a future post, we’ll pick back up on the topic of relevance, reliability and prejudicial effect in criminal defense cases.
ABA Journal, “Federal judge says neuroscience is not ready for the courtroom—yet,” Kevin Davis, Oct. 20, 2015.
The Washington Post, “FBI admits flaws in hair analysis over decades,” April 18, 2015.