Brain Imaging for Judges: An Introduction to Law and Neuroscience

It has become increasingly common for brain images to be proffered as evidence in civil and criminal litigation.1 This article offers some general guidelines to judges about how to understand brain-imaging studies—or at least avoid misunderstanding them. (An appendix annotating a published brain imaging study, in order to illustrate and explain, with step-by step commentary, is available in the full text online.2) Brain images are offered in legal proceedings for a variety of purposes, as Professors Carter Snead and Gary Marchant have usefully surveyed.3 On the civil side, neuro imaging has been offered in constitutional, personal injury, disability benefit, and contract cases, among others. For example, in Entertainment Software Ass’n v. Blagojevich,4 the court considered whether a brain-imaging study could be used to show that exposure to violent video games increases aggressive thinking and behavior in adolescents. In Fini v. General Motors Corp.,5 brain scans were proffered to help determine the extent of head injuries from a car accident. In Boyd v. Bert Bell/Pete Rozelle NFL Players Retirement Plan,6 a former professional football player proffered brain scans in an effort to prove entitlement to neuro-degenerative disability benefits. And in Van Middlesworth v. Century Bank & Trust Co.,7 involving a dispute over the sale of land, the defendant introduced brain images to prove mental incompetency, resulting in a voidable contract