Neuroscience Evidence

Deborah W. Denno (Fordham University School of Law) has posted Empirical Use of Neuroscientific Evidence in Criminal Justice (in THE ENCYCLOPEDIA OF BEHAVIOURAL NEUROSCIENCE (2nd ed.). Amsterdam, Netherlands: Elsevier _ (Sergio Della Salla, ed. 2021) (Forthcoming)) on SSRN. Here is the abstract: The growing influx of neuroscientific evidence in various criminal justice systems has prompted several excellent assessments of the nature and degree of its impact in courtrooms in the United States and other countries. However, there have been few efforts to conduct a comparative analysis of systematic empirical research on the use of neuroscientific evidence in criminal cases, which is this chapter’s goal. This review breaks new ground by detailing the critical similarities and differences among all seven empirical studies that researchers have conducted up to 2019. What is the main takeaway? Across most of the studies, neuroscientific evidence was firmly planted in five different countries’ criminal justice systems, and defense attorneys primarily used it for purposes of mitigation. Research findings documented the extent of its impact at all phases of the criminal justice system, particularly sentencing. Most studies also reported that the use of such evidence in the courtroom was increasing over time or, if not, it was being more thoroughly discussed. In essence, neuroscientific evidence has a secure foothold in criminal justice that will only become stronger. That said, it is critically important to emphasize the studies’ limitations and the nuances behind their results. While the studies employed a common framework and relied on widely accepted legal databases, they also shared deep structural challenges. Empirical research is showing more accurately how neuroscientific evidence is helping criminal justice systems better assess mental states and assign punishments. Yet, the legal system’s process of collecting and organizing information needs to advance and modernize.

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