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Neuroimages in court: less biasing than feared

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Neuroscience is increasingly poised to play a role in legal proceedings. One persistent concern, however, is the intuition that brain images may bias, mislead, or confuse jurors. Initially, empirical research seemed to support this intuition. New findings contradict those expectations, prompting a rethinking of the ‘threat’ of neuroscience in the courtroom.

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    Others suggest that the real explanation for the prejudicial nature of neuroscience evidence does not lie in their visual impact, i.e., in the power of image, but in the difference between structural and functional imaging: structural abnormalities are more likely to influence judgments and mitigate punishment decisions than functional abnormalities, as the latter have less causal potency than the structural ones (Choe, 2014). In any case, even though more recent researches suggest that neuroscience is not as biasing as feared (Farah & Hook, 2013; Michael, Newman, Vuorre, Cumming, & Garry, 2013; Roskies, Schweitzer, & Saks, 2013; Schweitzer, Baker, & Risko, 2013; Schweitzer et al., 2011), the prejudicial impact of neuroscientific evidence remains an open empirical question (Gruber & Dickerson, 2012; McCabe, Castel, & Rhodes, 2011; Nadelhoffer et al., 2012) to be examined. One of the difficulties with evidence involving neuroimaging is that any evidentiary use involves the interpretation of the images themselves as well as inferences as to the psychological status of the individual (Eastman & Campbell, 2006).

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    The legal implications of these findings were instrumental in determining that execution or an automatic sentence of life without the possibility of parole for someone younger than 18 years old, at the time of the crime, violates the 8th Amendment prohibition against “cruel and unusual punishment” (see Roper v. Simmons, 2005; Graham v. Florida, 2011; Miller v. Alabama, 2012). With more and more advances in brain imaging the legal system will face greater pressure to determine which imaging techniques have probative value in a given case and which may be prejudicial or even misleading (see also 2014 articles included in the Hastings Center Report: Farah, 2014; Mayberg, 2014; Parens & Johnston, 2014; Wasserman & Johnston, 2014; as well as Morse, 2006; Patel, Meltzer, Mayberg, & Levine, 2007; Granacher, 2008; Moriarty, 2008; Johnson, Blum, & Giedd, 2009; Roskies, Schweitzer, & Saks, 2013; Meltzer et al., 2014). There are also significant concerns about what can be inferred from brain images, and this area warrants further investigation to elucidate the role of neuroimaging in the courtroom (Appelbaum, 2009).

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