Today’s New York Times magazine has a long article by Jeffrey Rosen about the increasing use of neuroscientific evidence in the American courtroom.
Rosen, who is a professor of law at George Washington University and legal affairs editor of the neo-conservative publication The New Republic, believes that the use of such data is revolutionizing the American legal system:
The extent of that revolution is hotly debated, but the influence of what some call neurolaw is clearly growing. Neuroscientific evidence has persuaded jurors to sentence defendants to life imprisonment rather than to death; courts have also admitted brain-imaging evidence during criminal trials to support claims that defendants like John W. Hinckley Jr., who tried to assassinate President Reagan, are insane. Carter Snead, a law professor at Notre Dame, drafted a staff working paper on the impact of neuroscientific evidence in criminal law for President Bush’s Council on Bioethics. The report concludes that neuroimaging evidence is of mixed reliability but “the large number of cases in which such evidence is presented is striking.” That number will no doubt increase substantially. Proponents of neurolaw say that neuroscientific evidence will have a large impact not only on questions of guilt and punishment but also on the detection of lies and hidden bias, and on the prediction of future criminal behavior. At the same time, skeptics fear that the use of brain-scanning technology as a kind of super mind-reading device will threaten our privacy and mental freedom, leading some to call for the legal system to respond with a new concept of “cognitive liberty.”