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Graduate Student Journal of Psychology                                                                             Copyright 2009 by the Department of Counseling & Clinical Psychology  
2009, Vol. 11                                                                                                                        Teachers College, Columbia University                          
 
 

Neuroscience and Law: The Evidentiary Value of Brain Imaging 
 

Noel Shafi 
Teachers College, Columbia University 

 
Neuroimaging evidence should be restricted in terms of admissibility in the courts, and should only be 
considered reliable under scientifically valid clinical methods. This topic will be approached in four 
stages: (1) a brief introduction to neuroscience and law, (2) a discussion of evidentiary laws in the 
American legal system, (3) a review of modern neuroimaging and the admissibility and applicability of 
neuroimaging evidence in the courtroom using actual cases, and 4) a closing argument, including 
interdisciplinary perspectives on neuroscience and law.  
  

Neuroimaging1has numerous legitimate legal 
applications, in addition to important clinical applications. 
Neuroimaging methods are primarily used to study brain and 
behavior relationships, which contribute to clinical and 
research disciplines such as radiology, psychiatry, 
neurology, and clinical neuropsychology (Bigler, 1991). 
However, there are numerous ways in which brain imaging 
can be interpreted and implicated in the court. In fact, 
neuroscience has been applied to many legal subfields, 
including, but not limited to: Intellectual Property Law, Tort 
Law, Consumer Law, Health Law, Employment Law, 
Constitutional Law, and Criminal Law (Tovino, 2007). Thus, 
brain scientists can use neuroimages to determine the 
cognitive, behavioral, and physiological traits of clinical 
patients and legal defendants.  

The convergence between neuroscience and law is a 
recent phenomenon. In fact, “[t]he legal profession is at least 
two millennia older than the neurobiological profession, 
which is not much more than 150 years old at best, and in its 
current state of probing the mind of man and his subjective 
states is far younger than that” (Zeki & Goodenough, 2004, 
p. 1662). Nevertheless, developments in neuroscience have 
led to unprecedented changes in legal proceedings, whereby 
the brain has increasingly become a subject of legal inquiry. 
As neuroscience now has many implications within the legal 
realm, the “Neuro-Law” subfield has developed. 

 
Admissibility of Scientific Evidence: Implications for 
Neuroscience 
 

Admissibility of neuroimaging evidence is commonly 
based on the purpose of submission, rather than the imaging 
itself. There is a great deal of controversy regarding if and 
when neuroimaging should be used. Neuroimaging is not 
purely objective, but is “the product of a complex set of 
techniques, subjective decisions, technical choices, and 
informed interpretations” (Baskin, Edersheim, & Price, 
2007, p. 249). Essentially, neuroimaging methods create a 
visual image of the brain and the imaging specialist 
interprets it. Various interpretations can be derived from 

                                                 
Correspondence: Noel Shafi, noel.shafi@gmail.com 

brain imaging, including: the presence of structural 
abnormalities, functional deficits, personality traits based on 
physiological defects, and lie detection (Pettit, 2007, p. 321-
323).  

Brain images have physiological and behavioral 
correlates. Correlation of neuroimaging to behavior is 
presently very limited. A majority of the findings are still 
inconclusive, although many remain informative, and 
potentially useful. “With respect to understanding the brain 
and certain behaviors, the state of scientific knowledge is 
nascent, but promising. The more complex and specific the 
behavior examined, the more speculative the connection” 
(Baskin et al., 2007, p. 239). However, even the simplest 
behaviors involve highly sophisticated functions and 
interactions between multiple structures in the brain. The 
human brain is complex and, whether in the clinic or the 
courtroom, it should be analyzed and assessed by experts.  

In a clinical setting, neurologists, neuropsychologists 
and other health care professionals use neuroimaging for 
medical purposes, in order to detect or diagnose neurological 
disorders or brain injuries. Technological advances and 
methodological improvements in neuroimaging techniques 
will continue to expand its use. Meanwhile, neuroimaging 
will be applied in the courtroom for purposes that extend 
beyond medicine.  

In a courtroom setting, litigants use neuroimaging in 
civil litigation and criminal trials in order to affirm or deny 
claims of brain or spinal injury (Pettit, 2007, p.321-322). 
Some researchers assert that neuroimaging could be used to 
demonstrate the propensity for violence, the capacity to 
stand trial, as evidence of malingering, or to help establish or 
diminish the criminal responsibility of a defendant (Aharoni, 
Funk, Sinnott-Armstrong, & Gazzaniga, 2008). Recent 
research has also noted the use of brain imaging in detecting 
pain, but this method has not yet been scientifically validated 
for clinical use (Kupers & Kehlet, 2006).  

Evidentiary rules have set parameters for the 
admissibility and reliability of scientific instruments, thereby 
limiting the application of neuroimaging. Yet, as Pettit 
(2007) states, “courts usually seem willing to consider brain-
imaging evidence under the same standards that they apply 
to other scientific evidence” (p. 339). Legal history 

27 



SHAFI 
 

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demonstrates that neuroimaging is most useful when it is 
applied with clinical methods. Ultimately, the rule of law 
and the current state of science determine the practicality of 
neuroimaging in the courtroom. The scientific reliability of 
neuroimaging evidence is an important part of legal 
admissibility.  

The legal standard for admissibility of evidence depends 
on the court system. State and federal courts have their own 
standards but generally defer to federal rules. Federal rules 
are derived from previous court rulings, which established 
preliminary standards of admissibility. For example, 
Daubert v. Merrell Dow Pharmaceuticals (1993) and Frye v. 
United States (1923) are two pivotal cases that contributed to 
the federal standard for the admissibility of scientific 
evidence.  

Gardland and Glimcher (2006) describe the Daubert 
standard – a legal criteria for evaluating the reliability of 
scientific testimony and evidence in the courtroom. This 
standard is derived from a civil suit, Daubert v. Merrell Dow 
Pharmaceuticals, whereby the Supreme Court established 
four general guidelines for the admission of scientific 
evidence.  

In regard to the evidentiary law, the Daubert standard 
states that trial judges should carefully consider:  

 
…whether the theory or technique in question can be (and 
has been) tested, whether it has been subjected to peer 
review and publication, its known or potential error rate, 
and the existence and maintenance of standards controlling 
its operation, and whether it has attracted widespread 
acceptance within a relevant scientific community (p. 
580). 
  

Can neuroimaging evidence satisfy any of these criteria?  
In Daubert v. Merrell Dow Pharmaceuticals (1993), the 

plaintiffs claimed that Bendectin, a prescription drug and 
antinauseant, caused them serious birth defects when their 
mothers consumed it during pregnancy. Experts for the 
plaintiff argued for medical causation, based on results from 
animal studies involving Bendectin and human studies 
involving similar drugs. Experts for the defendant argued 
that there was no evidence based on human studies 
indicating that the drug poses a risk for human birth defects. 
The defendants also cited the Frye (1923) case, arguing that 
expert testimony for the plaintiff was not based on the 
scientific method. The court ruled in favor of the defendant 
and concluded that the studies relating to Bendectin were 
inadmissible as evidence.  

This case demonstrates that litigants and scientists 
equally recognize that scientific studies do not always 
establish causality, and that animal studies should not always 
be equated with human conditions. This case also 
demonstrates that expert testimony on scientific evidence 
can potentially influence the admissibility of evidence, or 
even the outcome of the case itself.   

In Frye v. United States (1923), the defendant was 
charged with second-degree murder; in his defense, he 

requested a systolic blood pressure deception test, or lie 
detector test. The defendant believed that the test results 
would proclaim his innocence. The court excluded the test 
results because the testing device was not generally accepted 
in the scientific community. The court explained their 
decision as follows: 

 
Just when a scientific principle or discovery crosses the 
line between the experimental and demonstrable stages is 
difficult to define. Somewhere in this twilight zone the 
evidential force of the principle must be recognized, and 
while courts will go a long way in admitting expert 
testimony deduced from a well-recognized scientific 
principle or discovery, the thing from which the deduction 
is made must be sufficiently established to have gained 
general acceptance in the particular field in which it 
belongs (p. 1014). 
 
This statement eventually became known as the “Frye 

standard” for the admissibility of scientific evidence.  
Both the Daubert (1993) and Frye (1923) cases 

developed standards for the admissibility of scientific 
evidence. However, it was the Daubert standard that 
significantly contributed to the development of the federal 
standard, which was previously enacted. The Frye standard 
was generally used from the 1920’s to the 1980’s; the courts 
eventually shifted to the federal standard in the 1970’s and, 
in the 1990’s, Daubert (1993) ruled that Frye would no 
longer be the standard rule of admissibility of scientific 
evidence (Moriarty, 2008). 

Federal Rules of Evidence (FRE).The current federal 
standard for evidence in the courtroom is known as The 
Federal Rules of Evidence (FRE). The FRE have provided a 
legal standard for the admissibility of evidence in United 
States federal courts since it was enacted in 1975 (Mosteller, 
2006). Most U.S. state and federal jurisdictions refer to this 
standard. The FRE contains several rules relevant to the 
admissibility, presentation and application of scientific 
evidence in the courtroom. Generally, the judge decides 
whether the evidence is admissible, but only an expert 
witness can introduce and interpret the evidence (Moriarty, 
2008).  

Relevancy and expert testimony are two central 
concepts in the FRE that govern the admissibility of 
evidence. There are three rules of particular importance - two 
pertaining to relevancy, and one pertaining to expert 
testimony (FRE 401, FRE 702 and FRE 403 respectively). 
These rules are important because they help determine the 
admissibility of scientific evidence such as neuroimaging. 
They will be reviewed in order of mention.  

Federal Rules of Evidence, FRE 401 (definition of 
“relevant evidence”). In regard to relevancy, FRE 401 
(2008) states:  

 
Relevant evidence means evidence having any tendency to 
make the existence of any fact that is of consequence to 
the determination of the action more probable or less 
probable than it would be without the evidence. 



NEUROSCIENCE AND LAW 
 

 

 

29

Researchers are still debating the relevancy of 
neuroimaging to courtroom proceedings; however, the 
evidentiary value of neuroimaging is not only a matter of 
relevance to the case, but also, the sufficiency of the 
evidence itself. Husted and colleagues (2008) state that 
imaging studies “will not be relevant to every defense and, if 
utilized, should be only a component of the multi-faceted 
scientific data presented” (p. e15). Others disagree, stating 
that “neuroscience is insufficiently advanced to offer precise 
data that will be genuinely legally relevant” (Morse, 2006, p. 
400).  

Federal Rules of Evidence, FRE 702 (opinions and 
expert testimony). Whenever neuroscientific evidence 
requires specialized knowledge, there must be an expert 
witness to testify as to what the brain image means. Without 
the appropriate expertise, the evidence would be rendered 
inadmissible. FRE 702 (2008) states:  

 
If scientific, technical, or other specialized knowledge will 
assist the trier of fact to understand the evidence or to 
determine a fact in issue, a witness qualified as an expert 
by knowledge, skill, experience, training, or education, 
may testify thereto in the form of an opinion or otherwise, 
if (1) the testimony is based upon sufficient facts or data, 
(2) the testimony is the product of reliable principles and 
methods, and (3) the witness has applied the principles and 
methods reliably to the facts of the case. 

 
In summary, Rule 702 requires that testimony be 

factual, reliable, and applicable to the case. The previously 
mentioned factors will be evaluated in terms of how they 
apply to neuroimaging evidence. The following evaluation 
will only provide a general sense of the current medical-legal 
opinion on the admissibility of scientific evidence in the 
context of FRE.  

Sufficient facts are necessary to prove certain aspects of 
the case. If the facts are insufficient, then they will not 
contribute to legal decision-making. For this reason, 
factuality can itself determine admissibility, despite the 
reliability of the evidence. For instance, “even if the science 
is good enough to pass muster for admission as expert 
scientific evidence under federal and state evidentiary rules, 
it may still be inadmissible because it will not be probative” 
(Morse, 2006, p. 400). So, it is not just a matter of whether 
neuroimaging is scientifically valid, but rather, whether or 
not it can provide enough information to establish important 
facts in the case.   

Researchers Le and Hu (1997) explain that “[r]eliability 
concerns the extent to which a test, or any measuring 
procedure, yields the same results on repeated trials” (p. 
160). Reliability is equally important in clinical 
neuroimaging as it is in evidentiary law. Aharoni and 
colleagues (2008) argue that “it is not clear when 
neuroscience findings should qualify as relevant, material, or 
competent, or reliable as defined by the rules of evidence” 
(p. 157). Whether such qualifications can be met really 
depends on the type of neuroimaging device being used, and 
the reason it is being employed. For instance, the Society of 

Nuclear Medicine Brain Imaging Council (1996) states that 
the “use of functional neuroimaging in forensic situations 
including criminal, personal injury, product liability, medical 
malpractice, worker's compensation and ‘toxic torts,’ 
remains especially controversial” (p. 1257).   

The way neuroimaging methods are applied in legal 
cases is crucial. If applied unconventionally, brain scanning 
technology may undermine rather than contribute to justice. 
However, if the science is reliable, and provides relevant 
facts, litigants can introduce this evidence without 
compromising the integrity of their case. Therefore, the 
reliability of the method should be a prerequisite for its 
admissibility.  

Generally, regardless of the type of case being tried, 
factuality, reliability, and applicability remain critical factors 
in the admissibility of scientific evidence under FRE 702.  

Federal Rules of Evidence, FRE 403 (relevancy and its 
limits). Besides FRE 702, there are other federal rules that 
further stipulate what judges may allow in the courtroom. In 
fact, “[e]xpert testimony that survives scrutiny under FRE 
702 might still be excluded under FRE 403” (Pettit, 2007, p. 
327). FRE 403 (2008) provides stipulations that potentially 
exclude some evidence from the courtroom if the probative 
value is minimal. This rule specifies additional criteria for 
admissibility of evidence. FRE 403 (2008) states:  

 
Although relevant, evidence may be excluded if its 
probative value is substantially outweighed by the danger 
of unfair prejudice, confusion of the issues, or misleading 
the jury, or by considerations of undue delay, waste of 
time, or needless presentation of cumulative evidence. 
 
In summary, Rule 403 specifies four criteria for 

admissible courtroom evidence (whether it is prejudicial, 
confusing, misleading or excessive). There are several 
arguments regarding how neuroimaging may or may not 
meet any of these criteria.  

Prejudice and justice are inevitably intertwined in the 
field of law. Neuroscience can contribute to prejudice in the 
legal system in numerous ways. In criminal trials, rendering 
a verdict for the defendant simply based on a structural 
abnormality of the brain or a dysfunction of behavior 
oversimplifies the complexity of crime and creates undue 
prejudice. This may work for or against the defendant – the 
jury can relieve punishment for the crime if the defendant is 
believed to be insane or incompetent because of his anomaly, 
but the jury can also penalize the defendant because his brain 
disorder may indicate a propensity for criminal behavior. 
Therefore, brain abnormalities should not automatically 
diminish the responsibility of the defendant, nor should it 
substantiate guilt. Overall, neuroimaging evidence should be 
used in conjunction with other legal or scientific evidence. 
Thus, prejudice is likely to enter the courtroom depending on 
the way the evidence is presented and how it is applied.  

Neuroimaging technology is also potentially confusing 
for the jury. The expert witness must be able to simplify the 
information being presented, and accurately summarize 



SHAFI 
 

 30 

relevant findings on the brain. Brain evidence is especially 
difficult to present without confusion because “society has 
not yet reached a consensus as to whether, as a matter of 
morality or legality, neurological explanations should lead to 
exculpation” (Baskin et al. 2007, p. 268). However, one legal 
expert believes that neuroimaging can revitalize the search 
for truth in the courtroom. Feigenson (2006) states that the 
“courtroom display of such images should not only greatly 
assist triers of fact in understanding the fMRI expert 
testimony [or any other type of neuroimaging device] but 
also disabuse them of the tendency to view the data 
representations naively and hence uncritically” (p. 251). 
Thus, it is arguable that neuroimaging could enlighten the 
jury, rather than confuse them.   

Baskin and colleagues (2007) argue that neuroimaging 
can mislead or bias the jury. In fact, “data from fMRI, 
SPECT, and PET scans can be referenced and presented in 
dazzling multimedia displays that may inflate the scientific 
credibility of the information presented” (p. 268). 
Defendants with insanity pleas can further complicate 
judicial decisions. One study examined the effect of 
neurological evidence on legal decision-making. Gurley and 
Marcus (2008) presented a group of 396 participants with 
hypothetical case summaries of defendants in criminal trials. 
The participants were asked to provide a verdict of guilty or 
not guilty by reason of insanity. This study found that 
participants were more likely to render a verdict of not guilty 
by reason of insanity when the hypothetical defendant had 
psychological or neurological problems, which were 
demonstrated by psychiatric or neuroimaging techniques. 
These results seem to demonstrate the favorability of brain-
based evidence in the courtroom, and how it can bias the jury 
and the outcome of the verdict (Gurley & Marcus, 2008). To 
counteract this bias, Baskin and colleagues (2007) suggest 
that medical witnesses interpret neuroimages with 
reservation, and be more speculative and less definitive in 
presenting their testimony in court.  

Neuroimaging does not seem to present a problem of 
undue delay as other forms of scientific evidence might. 
Whether neuroimaging in the court is a “waste of time” or a 
“needless presentation of cumulative evidence” depends on 
the ability of brain imaging specialists to contribute new 
facts to the case; considering the history of neuro-law cases, 
it seems that brain scans can do just that.  
 
Structural and Functional Neuroimaging I: Clinical and 
Courtroom Applications 

 
Modern neuroimaging techniques such as magnetic 

resonance imaging (MRI), computerized tomography (CT), 
single photon emission computed tomography (SPECT), 
positron emission tomography (PET), and functional 
magnetic resonance imaging (fMRI), will be reviewed in 
terms of their clinical and legal applications. SPECT, fMRI, 
and PET are functional brain scanning technologies, while 
MRI and CT are structural scanning technologies. The 
former is concerned with physiological functions, whereas 

the latter is concerned with physiological features. 
Neuroimaging techniques create a visual image of different 
structures or functions in the brain (see Figures 1-2 for a 
basic review of brain anatomy). Each neuroimaging modality 
is based on distinct methods of operation, and has varying 
degrees of scientific validity and reliability. The question is 
whether or not the neuroimaging methods in the clinic have 
evidentiary value in the court.  
 
Figure 1. Displaying the cortical surface of the brain. 
Adopted from Fallon (2006). 
 

 
 

 
Figure 2. Anterior, posterior, ventral and dorsal views of the 
brain. Adopted from Badre (2008).  
 

 
 



NEUROSCIENCE AND LAW 
 

 

 

31

                                                

Lawyers and scientists typically consider the capabilities 
and limitations of neuroimaging techniques before making 
any conclusions about a patient, client, plaintiff, or 
defendant. The following segment of this paper will review 
several examples of how law has interacted with 
neuroimaging in recent legal history. The author will first 
begin by analyzing the scientific reliability and legal 
applicability of structural neuroimaging, such as MRI and 
CT, and functional neuroimaging, such as PET, SPECT and 
fMRI. Several legal cases involving each neuroimaging 
modality will be reviewed, followed by a brief discussion on 
the admissibility and reliability of neuroimaging evidence 
submitted in court.  

Magnetic Resonance Imaging (MRI). Magnetic 
resonance imaging (MRI) is a structural brain imaging 
technique focusing on the structure of the brain. MRI is a 
noninvasive procedure, unlike PET and SPECT. MRI 
displays visual images of the brain by “using a powerful 
magnet to obtain its images” (Baskin et al., 2007, p. 248). 
The authors describe MRI scans as a static visualization of 
the brain. MRI has numerous capabilities. MRI has high 
spatial resolution and is scientifically established as a 
reliable measurement of brain injury (Mettingr, Rodiger, De 
Keyser, & van der Naalt., 2007). Specifically, “structural 
MRIs can often detect acutely diffuse axonal injury,2 small 
hemorrhages,3 edema,4 or contusions5 that characterize TBI” 
or Traumatic Brain Injury (Baskin et al. 2007, p. 254). Also, 
“MRI produces images superior to CT scans, both in its 
ability to differentiate gray from white matter and its clear 
visualization of brain structures” (Moriarty, 2008, p. 31). 
Furthermore, “the great advantage of MRI is the absence of 
radiation, which is important for the assessment of the young 
and in benign conditions” (Rankin, 2008, p. 239). Some 
researchers consider MRI an effective tool and an admissible 
form of evidence for postmortem evaluations of traumatized 
brains (Harris, 1991). Overall, MRI is designed to detect or 
diagnose physiological abnormalities of the brain.  

However, MRI also has limitations. MRI scans are 
unable to accurately predict age or gender (Baskin et al., 
2007). Moreover, Ewers and colleagues (2006) state that 
“[v]ariability in MRI-based measurement between clinical 
sites may potentially influence the accuracy of biological  
measures and thus compromise applicability of MRI-based 
diagnostic criteria across sites” (p. 1051). Differences in 
clinical standards do exist, and that there is a subjective 
element in MRI analysis in the clinic, and consequently, in 
the court.  

The following case exemplifies the evidentiary value of 
MRI in diagnosing head injuries. In State of Delaware v. 
Vandemark (2004), the defendant filed a motion, or a request 

 

                                                

2 Axonal injuries are characterized by lesions in the white matter of 
the brain.  
3 Hemorrhages are instances of internal or external bleeding.  
4 Edema is an accumulation of fluid in bodily tissue or cavities 
causing swelling to occur.  
5 Cerebral contusions are bruises in brain tissue caused by injury.  

to the court, to “bar testimony about shaken baby impact 
syndrome or inflicted head trauma” (p. 1). The defendant 
was “charged with assault by abuse involving a child” (p. 1) 
approximately sixteen months old at the time the injury was 
thought to occur. The child was hospitalized and underwent 
neuroimaging soon after the injury. A CT scan detected a 
small subdural hematoma6 with a “mass effect on the left 
side” of the child’s brain (p. 1). A MRI was also performed, 
and found “an extensive subacute left-sided subdural 
hematoma” throughout the left hemisphere (p. 2). The court 
recognized the greater sensitivity of MRI over CT, in that it 
was able to better display the extent of the hematoma in the 
brain. Medical experts in this case agreed that the head 
injuries sustained by the child were “consistent 
with…Inflicted Head Trauma” and that the injuries were 
“not accidental” (p. 2). One physician testified that the 
shaking of a child or blunt force inflicted on the child, or 
both, causes injuries; this notion is generally accepted in the 
relevant scientific community, namely, pediatrics (p. 4).  

MRI and CT scans substantiated the evidence 
supporting head injury, and coincided with expert testimony 
regarding the diagnosis of shaken baby impact syndrome. 
The court concluded that the testimony was relevant and 
reliable, and would therefore, be admitted into evidence in 
the subsequent trial. The motion by the defendant to exclude 
evidence on inflicted head trauma was denied (p. 17-18). In 
this case, MRI and CT evidence was both admissible and 
reliable.  

As demonstrated in the previous case, MRI and CT can 
provide proof of injury, but may not always provide 
sufficient evidence for medical causation. The following 
case highlights the problem of making causal inferences 
from neuroimaging. In Siharath, Rider and Rider v. Sandoz 
Pharmaceuticals Corporation (2001), the plaintiffs sought 
“compensatory and punitive damages” alleging that Parlodel, 
a drug manufactured by the defendant, caused seizures7 and 
stroke8 (p. 1349). The defendant filed a motion to exclude 
evidence insinuating medical causation. Plaintiff Siharath 
took the prescription for several days, and soon after, 
experienced “three seizures and a subarachnoid hemorrhagic 
stroke” (p. 1349). The plaintiff’s physician was unable to 
establish a cause or provide a diagnosis. The second 
Plaintiff, Ms. Rider, experienced involuntary movements in 
her right leg. She later underwent a CT scan, which indicated 
that she had “an acute intracranial hemorrhagic stroke,” and 
a MRI scan, which also confirmed that she had suffered “a 
left parietal hemorrhage” (p. 1350). The experts for the 

 
6 A hematoma is defined as a collection of blood in bodily tissue or 
organs usually caused by hemorrhaging; a subdural hematoma is a 
mass of blood accumulating within the dura mater, and is caused by 
head injury.  
7 Seizures are characterized by abnormal neural activity 
accompanied by changes in sensation and behavior.  
8 Strokes are defined as a sudden loss of brain function caused by 
changes in blood supply to the brain, usually causing changes in 
movement, vision or speech.  



SHAFI 
 

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plaintiffs provided testimony that relied on case reports, 
partly because there was a lack of epidemiological studies on 
Parlodel. The expert witness for the plaintiff, an expert on 
adverse drug reactions, argued that Parlodel causes strokes. 
The defendant argued that case reports do not satisfy the 
scientific method.  

The court finally agreed with the defendant, although 
the MRI and CT evidence confirmed the injuries in the 
plaintiffs’ brains. Despite the fact that the MRI and CT scans 
indicated separate incidents of stroke in two plaintiffs with 
the same prescription, it does not establish a causal 
relationship between the drug and the results of the brain 
scan. The court ruled in favor of the defendant, who filed for 
“summary judgment on issues of medical causation” 
(Siharath, 2001, p. 1374). In this case, MRI and CT evidence 
was admissible, but unreliable.    

The following case is an example of how neuroimaging 
evidence can be used, in conjunction with 
neuropsychological evidence, to establish a link between 
brain injury and intellectual capacity. This case demonstrates 
that brain scan evidence can coincide with or support the 
basis of other scientific evidence in the courtroom. In United 
States v. Sandoval-Mendoza (2006), the defendant appealed 
his conviction for conspiracy to sell methamphetamine, 
arguing that he was influenced by government agents to 
commit the crime, and that the presence of a brain tumor can 
explain his susceptibility to influence. One defense witness, 
a psychologist, testified that the defendant had an unusually 
large pituitary tumor, which caused irreversible brain 
damage. The court acknowledged that pituitary tumors may 
affect thyroid production, causing mood disorder, and 
damage to the frontal, temporal and thalamic regions, which 
may cause problems in “memory, decision-making, 
judgment, mental flexibility, and overall intellectual 
capacity” (p. 653).  

Another defense witness, a neurologist, testified that the 
MRI showed that Sandoval-Mendoza had a tumor which 
shrank after treatment. Afterwards, the frontal lobe herniated 
into the empty space previously occupied by the tumor; the 
tumor then caused atrophy in the left temporal lobe and 
further damage in other areas.  

The court recognized that this kind of damage to the 
brain affects judgment, memory, and emotional memory. 
Both witnesses agreed that such brain damage causes 
disinhibition, but does not necessary increase “susceptibility 
to inducement to commit crimes” (p. 653). Prosecution 
witnesses, also consisting of neurologists and 
neuropsychologists, testified that although the MRI showed 
a pituitary tumor, the connection between cognition and 
behavior remains questionable, and that the tumor should not 
be attributed to disinhibition (p. 653-654).  

The court also recognized that although expert 
testimonies on both sides were contradictory, they were not 
potentially confusing and that “the jury was capable of 
weighing the conflicting medical expert opinion testimony 
against the rest of the evidence presented and determining 
whether or not predisposition existed” (p. 656). In this case, 

MRI evidence was admissible, although its reliability is 
disputable.  
 
Computerized Tomography (CT) 

 
Computerized tomography (CT) is a structural imaging 

technique and x-ray technology used to visualize internal 
organs, including the brain. CT is also a noninvasive 
technology that revolutionized diagnostic neurology 
(Khoshbin & Khoshbin, 2007, p. 179). CT “produces an 
excellent combination of both high spatial and temporal 
resolution” (Rankin, 2008, p. 239). CT is also a valid clinical 
method of assessing head trauma (Metting et al., 2007, p. 
699). Moreover, Moriarty (2008) states that CT and MRI 
scans are typically presented in U.S. courts as evidence for 
brain trauma or neurological disease; he argues that there “is 
general agreement and substantial proof of reliability that CT 
scans and MRI technology can detect brain injury, damage 
or atrophy9” (p. 40-41). According to Metting and 
colleagues (2007), “CT is one of the first developed and 
most commonly applied imaging techniques in the acute 
phase of head injury” (p. 699) and “the overall sensitivity of 
CT to abnormalities in acute head trauma is 63-75%” (p. 
700). However, the implication that such injuries have on 
mental capacity remains unknown.  

In some cases, CT scans are being admitted as evidence 
in the courtroom for purposes it was not designed. Although 
brain scans may have important implications on the mental 
capacity or sanity of an individual, it is minimally capable of 
defining the former, and is currently incapable of proving the 
latter. The following cases demonstrate that CT evidence can 
be used or misused accordingly. The first case is a court case 
involving CT evidence supporting the insanity defense. The 
second case involves CT evidence establishing mental 
capacity.  

In United States v. Hinckley (1982), the defendant was 
tried for his attempt to assassinate President Ronald Reagan. 
The defense presented an insanity defense, which they based, 
in part, on CT scan evidence. The expert witness, a 
psychiatrist, argued for the defense and testified that the CT 
scan showed atrophy in the brain. The psychiatrist then 
argued that atrophy is associated with schizophrenia. A 
radiologist was also consulted and testified that the scans 
showed brain abnormalities, but did not have any causal 
implications on the behavior or sanity for the defendant. 
Nevertheless, the jury found Hinckley not guilty by reason of 
insanity. It is likely that CT evidence had an effect on the 
verdict (Khoshbin & Khoshbin, 2007, p. 184), by 
diminishing the responsibility of the defendant and 
supporting his insanity defense. Such an inference from 
neuroimaging is not based on scientific evidence. This is one 
example of how brain scans can be used in a way it was not 
intended. Neuroimaging is not capable of proving insanity. 
Although the images coincided with the psychiatric 

 
9 Atrophy is a physiological process characterized by cell death, 
causing a progressive decline in tissue.  



NEUROSCIENCE AND LAW 
 

 

 

33

                                                

assessment, it was unable to substantiate it. In this case, CT 
evidence was admissible, but seemingly unreliable.  

In re Estate of Meyer (2001), the plaintiffs sued because 
they were unrightfully denied benefits from Meyer’s trust. 
The plaintiffs argued that Meyer was not mentally capable of 
creating the trust and was possibly manipulated by his 
lawyer. Moriarty (2008) noted that the court allowed the 
plaintiffs to introduce CT scans of Meyer which indicated 
various abnormalities including “brain atrophy, vascular 
dementia10 and focal brain changes” (p. 41), which 
supported the claim that Meyer lacked the capacity to create 
the trust. As mentioned earlier, CT scans have the ability to 
localize damage in the brain. However, the association 
between atrophy, dementia, and CT evidence is questionable. 
Both early and recent reports have questioned the reliability 
of CT in measuring cognitive decline (Bird, 1982; van 
Straaten, Scheltens, & Barkhof, 2004). According to the 
court, neuroimaging provided substantial proof to explain 
Meyer’s mental state, or lack thereof. In this case, CT 
evidence was admissible, but reliability is debatable.   

As shown in some of the previous cases, structural 
imaging in the courtroom is relatively reliable. Functioning 
imaging is also applicable in legal cases.   
 
Single Photon Emission Computerized Tomography 
(SPECT) 

 
Single photon emission computerized tomography 

(SPECT) is a functional imaging technique that measures 
metabolic activity and cerebral processes in various 
structures. Scientists can use functional imaging to study the 
neurochemistry of the brain and develop a cognitive profile 
based on an increase or decrease in blood flow (Baskin et al., 
2007, p. 250). SPECT has a wide variety of clinical 
applications. SPECT imaging studies have generated data on 
psychiatric and neurological disorders, like dementia, 
epilepsy, schizophrenia, and depression, but with mixed 
results (Bonne, Krausz, & Lerer, 1992).  

SPECT also has several disadvantages. Granacher 
(2008) notes the clinical and legal limitations, stating that 
“the reliability of SPECT…when applied forensically to 
MTBI [Mild Traumatic Brain Injury] or TBI cases, will not 
meet all Daubert criteria” (p. 326), and that “general 
acceptance of the theory and technique within the relevant 
scientific community…has not been achieved” (p. 327). 
Metting and colleagues (2007) note the technological 
limitations, stating that SPECT has low spatial resolution, 
limited availability, and is not routinely used as a clinical 
tool for assessing head injury. At the present time, there is no 
scientific consensus on the validity of SPECT. Furthermore, 
“[r]eliable analysis of SPECT date remains a major 
challenge” (Bonne et al., 1992, p. 298).  

 

                                                

10 Vascular dementia is a common neuropsychiatric disorder 
characterized by cognitive decline and impairment, producing focal 
effects in the brain.  

In previous cases, it was demonstrated that the causality 
of brain injury can not be easily established. In the following 
case, it seems equally difficult to establish causation between 
brain injury and post-injury symptoms. In Lanter v. 
Kentucky State Police (2005), the appellant sought “workers’ 
compensation benefits due to a head injury” (p. 45) sustained 
during a police training incident. Lanter had previously 
received partial disability benefits. However, the appellant 
wanted total disability benefits and requested several brain 
scans to determine the extent of his injury. In order to 
receive total benefits, the claimant must demonstrate that his 
work-related brain injury caused continuous emotional, 
neurological, and behavioral symptoms. Several brain scans 
of different types were admitted as evidence. The medical 
experts performed MRI, EEG11 and SPECT scans. One 
expert diagnosed the appellant with a cerebral contusion and 
post-concussive syndrome (Lanter, 2005).  

Another expert performed and analyzed additional 
SPECT scans, which “revealed functional defects in the right 
parietal and left occipital lobes of the claimant’s brain” (p. 
48). However, these results did not indicate that the injury 
caused his behavioral symptoms. The claim for disability 
benefits was denied, in part, because the medical experts for 
the plaintiff did not establish causation between injury and 
affect. SPECT evidence in this case was admissible, but 
unreliable.  

Other cases have also admitted SPECT imaging as 
evidence for brain injury claims. For example, in Boyd v. 
Bell (2005), the appellant, a former athlete, sustained head 
injuries during sports activity. The appellant (Boyd) 
requested SPECT scanning to determine the cause and extent 
of his organic brain injury in order to apply for additional 
disability benefits. The radiologists appointed to the case 
confirmed the head injuries, but noted that the exact cause 
was uncertain. Subsequently, the court ruled against the 
appellant, denying his claim for disability benefits, partly 
because there was no way to prove that his current 
physiological abnormalities were due to head injuries he 
sustained in the past. SPECT evidence in this case was once 
again admissible, but unreliable.  

The following case shows that although SPECT imaging 
is unlikely to establish causation, it can be used to 
demonstrate incompetence. In United States v. Kasim (2008), 
the defendant, a pediatrician, was accused of conducting 
fraudulent insurance practices. The defendant filed for a 
competency evaluation in 2008. His defense team found that, 
in 2003, “Kasim was diagnosed with anoxic encephalopathy 
caused by an acute myocardial infarction,” as well as sleep 
apnea during hospitalization (p 8). The EEG produced 
abnormal results the following day. Days later, EEG and 
MRI results performed on Kasim were normal. Numerous 

 
11 The electroencephalogram (EEG) is a functional technique used 
to assess “cerebral maturation, for determining a patient’s 
physiological (awakening and sleep) and pathological (comas) level 
of wakefulness and in epileptology” (Praline et al., 2007, p. 2149).  
 



SHAFI 
 

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medical expert witnesses were consulted for further 
scanning. A SPECT was later performed, indicating a 
reduction in blood flow in the temporal and frontal lobes. 
The frontal and temporal lobes are associated with executive 
functioning and memory, respectively. The defendant 
exhibited deficits in both areas of cognition during 
neurological and psychological testing. One medical witness 
diagnosed Kasim with frontal lobe dementia, based on the 
SPECT results.  

Although at least one physician disagreed with the 
diagnostic validity of SPECT in cases of dementia, or the 
extent of reduced blood flow in the frontal region, almost all 
agreed that the defendant exhibited cognitive deficits. 
Despite the discrepancies in the neuroimaging results from 
SPECT, EEG, and MRI, several medical witnesses testified 
that normal results from EEG and MRI scans do not 
necessarily imply normal brain functioning. The court 
considered SPECT as an objective test of cognitive abilities. 
Also, the court found that “Kasim’s demeanor during various 
medical evaluations portrayed poor judgment, an inability to 
concentrate, and an inability to understand the charges at 
hand” (p. 46). The court concluded that the defendant was 
incompetent to stand trial. Neuroimaging evidence 
contributed to the outcome of the case, which was in favor of 
the defendant. SPECT evidence in this case was admissible 
and reliable. 

 
Positive Emission Tomography (PET)  

 
Positive emission tomography (PET) is a functional 

imaging technique that measures metabolic processes, 
including “blood flow, blood volume, and metabolism” 
(Baskin et al., 2007, p. 248). It is a relatively invasive 
procedure that requires an injection of radioactive elements 
(or tracer molecules) into the circulatory system, which 
eventually interact with other molecules to produce 
measurable changes in activity. Essentially, PET scans “use 
radioactivity to map differences in metabolic activity in areas 
of the brain” (Pettit, 2007, p. 320). They can also be used to 
“measure reduced tissue perfusion” (Baskin et al. 2007, p. 
250), a characteristic of neurodegenerative disease, where a 
decrease in blood volume is observed in specific tissue. 
According to Metting et al. (2007), “PET studies generally 
show cerebral dysfunction beyond the structural 
abnormalities demonstrated by CT and MRI” (p. 703); 
however, PET has low spatial resolution and is not routinely 
used for assessing mild or moderate traumatic brain injuries. 
Although PET is more sensitive than SPECT, it is inferior in 
terms of specificity (Ebmeier, Donaghey, & Dougall, 2005). 
PET also has additional limitations in methodology.  

The Society of Nuclear Medicine Brain Imaging 
Council (1996) explains methodological issues with 
structural neuroimaging. The council names seven sources of 
interpretive error in using SPECT and PET: (1) “Differences 
in patient behavioral conditions during acquisition”; (2) 
“Processing and display variations”; (3) “Nonstandardized 
definitions of normal and abnormal”; (4) “Availability of 

scanner-specific or archived normative databases”; (5) 
“Nonuniform use of quantitative analyses in conjunction 
with descriptive readings”; (6) “Availability of few 
published standards defining the criteria for disease pattern 
identification”; and a (7) “Lack of published determinations 
of sensitivity and specificity for scans to indentify specific 
diseases and syndromes before their routine clinical use” (p. 
1257). The clinical limitations of SPECT and PET should be 
acknowledged in the courtroom. Interpretative errors in 
neuroimaging could certainly compromise expert testimony. 
For this reason, and others, the courts have increasingly 
“rejected the use of scans when performed for less than well-
established clinical indications” (p. 1257).  

Yet, despite the skepticism on introducing neuroimaging 
to litigation, many courts are accepting brain scans as 
reliable evidence. For instance, PET and SPECT have 
relatively high rates of admissibility. In fact, Feigenson 
(2006) states that “PET and/or SPECT evidence has been 
admitted in more than four-fifths (73 of 89, 82.0%) of cases 
in which it has either been admitted or excluded” (p. 237). 
Feigenson (2006) also states that there have been over 130 
court opinions involving PET and SPECT evidence in U.S. 
federal and state courts. The rate of admissibility for PET 
and SPECT does not substantiate reliability, however.  

In the following case, unreliable evidence was admitted 
for the defendant, to confirm his claim of incompetence due 
to Alzheimer’s disease. In United States v. Gigante (1997), 
the defendant was being prosecuted by the federal 
government for several counts of murder and other serious 
charges. The defendant requested a PET brain scan to 
confirm Alzheimer’s disease (AD) and demonstrate 
incompetency.12 According to the court opinion, the expert 
witness for the defense found that the “defendant was 
suffering from organic brain dysfunction, possibly due to 
Alzheimer's disease or multi-infarct dementia” (p. 147). The 
witness was unable to determine the cause, but concluded 
that the defendant was incompetent to stand trial.  

The prosecution team, however, found evidence that 
such abnormalities can be attributed to drug use (p. 147). 
The court noted that Gigante was taking medication at the 
time. This case exemplifies that neurological deficit does not 
imply psychological dysfunction, especially considering the 
confounding variables in the neuroimaging results. Also, the 
defendant exhibited brain abnormalities which may or may 
not have existed during the commitment of the crime. The 
evidence probably undermined, rather than supported, the 
defendant’s case.13 In this case, PET evidence was 
admissible, but unreliable.  

 
12 There is one fundamental problem with the defense in this case. 
In regard to a PET-based diagnosis of Alzheimer’s dementia, “there 
are postmortem criteria...but in vivo histological findings are rarely 
feasible” and “guidelines have generally not supported the routine 
use of functional imaging in the diagnostic evaluation of dementia” 
(Ebmeier et al., 2005, p. 49).  
13 This case was also reviewed elsewhere (Pettit, 2007, p. 335-336). 



NEUROSCIENCE AND LAW 
 

 

 

35

                                                

Sometimes neuroimaging is excluded as evidence 
because it is being used for reasons that are not clinically 
valid, such as diagnosing injuries that lack clinical criteria in 
PET studies. In McCormack v. Capital Electric Construction 
Company (2005), the plaintiff, a carpenter, filed for 
negligence after being electrocuted during work. The 
plaintiff attempted to introduce PET brain scans to confirm 
his injuries and gain compensation. Experts testified that the 
scans showed abnormal brain activity. However, the 
defendant argued that the PET “scans were inadmissible…as 
an unreliable method of diagnosing electric shock injuries” 
(p. 399). The court ruled in favor of the plaintiff, not because 
of PET, but because of the alternative scientific evidence 
presented, including neuropsychological and medical 
evaluations. Although the PET scan of the plaintiff provided 
the court with important information relating to the case, it 
was not sufficient to substantiate his claim. PET evidence in 
this case was admissible, but unreliable.  

In yet another legal case, the reliability of PET evidence 
depends on the availability of control groups in clinical 
studies; these studies are used to validate neuroimaging 
methods. In Penney v. Praxair, Inc. (1997), the plaintiff 
sustained a motor vehicle accident, and sought awards for 
brain damage. Experts for the plaintiff testified that PET 
scans detected brain abnormalities, which indicated that 
Penney had sustained traumatic brain injuries. However, the 
court found that the plaintiff “did not prove its results were 
not affected by his age and his medications” (p. 330). PET 
results are believed to be compromised by age, medical 
history or medications. The reliability of PET results also 
depends on the control groups used in PET studies. In this 
case, the plaintiff’s age did not match the controls used for 
PET experiments at the time. Nevertheless, the court ruled in 
favor of the plaintiff, awarding damages to the plaintiff “for 
past and future medical expenses related to injuries he 
allegedly sustained” (p. 330). Furthermore, according to the 
court, the admissibility of scientific evidence does not 
strictly depend on general acceptance in the scientific 
community, but the relevance and reliability of the method 
employed (Daubert, 1993). In this case, PET evidence was 
inadmissible and unreliable. 

 
Functional Magnetic Resonance Imaging (fMRI) 

 
Functional magnetic resonance imaging (fMRI) is a 

brain scanning technology that measures “localized brain 
activity by determining blood flow and oxygen utilization in 
portions of the brain” (Applebaum, 2007, p. 461). Aharoni et 
al. (2008) states that, “in general, abnormal activation could 
manifest as hypoactivation, hyperactivation, positive or 
negative activation, or some erratic pattern” (p. 152). Baskin 
et al. (2007) notes fMRI and other forms of functional 
imaging are “most advantageous for studying 
neurochemistry” (p. 248). Also, fMRI is “widely used for 
imaging the neural correlates of psychological processes and 
how these brain processes change with learning, 

development and neuropsychiatric disorder” (Aron, Gluck, 
& Poldrack, 2006, p. 1000). 

The introduction of fMRI advanced the study and 
science of the brain, and is considered to be technologically 
superior to PET and SPECT (Khoshbin & Khoshbin, 2007). 
However, fMRI has numerous limitations. The interpretation 
of brain activity patterns remains a question of debate among 
neuroscientists. Neuroimaging studies examine cognitive 
functions associated with specific brain patterns of neural 
activity. However, there is no indication that any particular 
pattern is necessary for any specific behavior (Desmond & 
Chen, 2002). Several confounded variables, such as head 
movement and anatomical differences, also undermine the 
interpretation of fMRI results (Desmond & Chen, 2002). 
Also, another limitation in fMRI is its “meager temporal 
resolution” (Aharoni, 2008, p. 158).  

Feigenson (2006) describes six additional reliability 
issues noted with fMRI usage: (1) fMRI scans provide 
relative measures of brain activity, not absolute measures; 
(2) fMRI data in neuroimaging studies are not always based 
on a same level of significance (e.g. p < .05); (3) fMRI data 
usually represents group averages of brain activity, and 
results may not apply to individuals; (4) anatomical 
variability compromises the accuracy of structural 
localization; (5) there are several confounded variables that 
may effect physiology, neurochemistry or cognition (e.g. 
drugs and toxins); and (6) generalizing the results from fMRI 
is difficult considering the lack of uniformity in the 
experimental methods used for neuroimaging studies14 (p. 
240-241).  

Feigenson (2006) also refers to one brain researcher, 
who states that “[t]here is no single-subject reliability” in 
fMRI findings (Robinson, 2004, p. 716). Furthermore, fMRI 
also has several limitations in regard to diagnosis of injury. 
Granacher (2008) states that “[t]he evidentiary usefulness of 
functional neuroimaging to provide mild TBI in a court of 
law lacks a sufficient scientific database and lacks sufficient 
scientific standards” (p. 327). Nevertheless, fMRI is a “non-
invasive technique,” which “does not require exposure to 
ionizing radiation” and creates anatomically precise images 
of the brain, while assessing the neural correlates of 
cognition and behavior (Metting et al., 2007, p. 705).  

Researchers speculate that fMRI is likely to be the 
future of truth (or lie) detection in legal proceedings, and is 
superior to the polygraph15 in accuracy and reliability 
(Kittay, 2007). Applebaum (2007) explains that lie detection 
with fMRI is based on the assumption that lying activates 

 
14 Some argue that the development of science sometimes depends 
on diverse modifications of its methods. A universal method is 
potentially detrimental especially if the method retains weaknesses 
that would otherwise be corrected in an alternative scientific 
approach to research methodology (Chalmers, 1999, p. 161-162). 
15 A polygraph is an instrument used to record physiological data 
and changes in the sympathetic nervous system. The examiner 
records the responses and determines whether the examinee is lying 
based on bodily reactions.    



SHAFI 
 

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brain areas associated with executive functioning. Higher 
cognitive processes would be necessary to suppress a truthful 
response and plan for deceit. Defendants being scanned by 
authorities would exhibit abnormally high levels of brain 
activity in frontal areas when lying to investigators. This is 
one way in which fMRI would be considered useful.  

However, Appelbaum (2007) names seven limitations 
that exist with fMRI lie detection: (1) There is no scientific 
consensus on the neural basis of deception; (2) fMRI studies 
use group norms to define activation levels in test 
participants, but these norms may not apply to individuals; 
(3) fMRI studies of lie detection are fairly recent and lack 
substantial data; (4) false-positive and false-negative rates 
are not currently available, so an accuracy assessment is not 
possible; (5) external validity is yet to be established – 
laboratory use and findings may differ from, or may not 
apply to, courtroom use; (6) there are confounded variables 
like attention and emotion that would potentially affect the 
results of fMRI lie-detection; and (7) even if a physiological 
basis for lying and deception is defined, a measurement 
would have to be devised to differentiate between absolute 
truth and partial truth, or absolute lies and partial lies (p. 
461).  

In theory, fMRI is a potential psychological profiling 
tool. Arrigo (2007) states that fMRI can be used for 
“interrogating suspects of criminal wrongdoing or extracting 
information from actual violations of the law” (p. 462). In 
this regard, fMRI is inadequate, and such a method of use 
raises important questions concerning humanitarian ethics 
and constitutional law.16 Arrigo (2007) contends that fMRI 
“represents a form of coercion” and a violation of privacy 
rights (p. 463-466).17 With further research and 
development, it is only a matter of time before fMRI lie 
detection is introduced in the courts to pick up where the 
polygraph left off. Arrigo (2007) speculates that interactions 
between criminal justice and neuroscience will set a legal 
foundation for biological laws to determine the criminal 
culpability of the defendant (p. 474).  

As of yet, “there are no cases to date admitting fMRI 
evidence as proof of deception or truth-telling” (Moriarty, 
2008, p. 46). Furthermore, as one legal expert notes, “it is 
not clear…how courts will react to a scientifically valid lie 

 
16 Suggested readings are The Fourth and Fifth Amendments of the 
United States Constitution which further elaborate on the legal 
implications of privacy and testimony that relate to fMRI in the 
courtroom (Pettit, 2007).  
17 Arrigo (2007, p. 464-466) applies anti-modernist and sociological 
theories of French philosopher, Michel Foucault, to explain the 
diametric struggle between social authority and individual privacy. 
The implication for neuroimaging is that it contributes to the 
former, while undermining the latter. In this context, science is not 
a tool for justice, but merely a biosocial commodity of power and 
enforcement, used by legal and psychiatric authorities to 
deconstruct and normalize the individual. From this perspective, 
neuroimaging represents the most pervasive force against humanity, 
exerting itself onto one of the most intimate parts of the human 
experience: thoughts.  

detector” (Bellin, 2008, p. 711). Mosteller (2006) asserts that 
“if there were a truly accurate lie detection technology, over 
time it would have a substantial impact both on how criminal 
cases are handled before trial and on how they are tried” (p. 
539). Truth or lie detection with neuroimaging is still a 
process in development, and a subject of intense interest in 
neuroscience and law (Mosteller, 2006). There have been 
few cases involving fMRI evidence, and like with any other 
neuroimaging technique, “there may be real concerns about 
the reliability and relevance of fMRI based expert 
testimony” in legal proceedings (Feigenson, 2006, p. 251).  

The following case is concerned with the relationship 
between violence and cognition, rather than information 
extraction or lie detection. In Entertainment Software 
Association [ESA] v. Blagojevich (2005), the plaintiff sued 
the state (represented by the defendant, Blagojevich, 
Governor of the state of Illinois) and attempted to enjoin, or 
forbid, the enforcement of a state law designed to prohibit 
the promotion of violent or explicit video games to minors 
without parental consent. The state wanted to regulate the 
distribution of games because they believed exposure to 
violent media causes a lack of behavioral inhibition in 
minors.  

The defendant used an fMRI study (Kronenberger et al., 
2005) to justify anti-video game legislation. The defendant 
referred to this study as evidence demonstrating that 
exposure to violent media has a negative effect on child 
behavior and brain function. Using fMRI, the Kronenberger 
et al. (2005) study found reduced frontal lobe activity in 
subjects with disruptive behavior disorder in comparison to 
controls; a relationship between violent media exposure and 
changes in brain functioning was also found in both 
experimental subjects and controls. The plaintiff consulted 
Dr. H.C. Nusbaum, a cognitive psychologist and expert 
witness, who challenged the testimony of Dr. W.G. 
Kronenberger in court.  

In his review of the ESA v. Blagojevich (2005) case, 
Feigenson highlights some weaknesses which Dr. H.C. 
Nusbaum noted from Dr. W.G. Kronenberger’s testimony 
and fMRI study (Feigenson, 2006). First, the experimental 
design was fundamentally flawed: participants only 
simulated video-game playing while being scanned, so 
alternations in brain wave activity can not be associated with 
the actual playing of violent games but only a mere 
simulation. Second, reduced frontal activity does not 
necessarily indicate susceptibility to violent or aggressive 
behavior, because other regions of the brain are also 
involved in aggression.  Kronenberger testified that reduced 
activity in the frontal lobe indicates lack of impulse control. 
Nusbaum disagreed, and testified that the frontal lobe has 
various functions; a reduction in frontal activity can be 
attributed to other mental and physical processes besides 
exposure to violent media. Thus, a causal relationship 
between negative behavior and altered brain activity can not 
be drawn.  

The court found that the Kronenberger et al. (2005) 
study was invalid, and could not support the defendant’s 



NEUROSCIENCE AND LAW 
 

 

 

37

claim that violent media exposure causes negative behavior, 
thereby ruling in favor of the Plaintiff’s motion to enjoin the 
law prohibiting the sale of violent games to minors (ESA v. 
Blagojevich, 2005). Further developments in functional 
imaging techniques are necessary before implementing this 
technology in a legal context. In this case, fMRI evidence 
was admissible, but unreliable.  

In summary of the previous cases, it seems that 
neuroimaging methods have a limited degree of admissibility 
and reliability in the court, despite their extensive use in the 
clinic. The applicability of structural and functional 
neuroimaging depends on the type of case being presented. 
From the examples provided, MRI is able to confirm head 
injury (e.g. State of Delaware v. Vandemark, 2004), but is 
unable to establish causation between injury and stroke (e.g. 
Siharath v. Sandoz Pharms. Corp., 2001) or to determine 
susceptibility to criminal behavior (e.g. United States v. 
Sandoval-Mendoza, 2006); CT is certainly capable of 
defining mental capacity to some extent (e.g. In re Estate of 
Meyer, 2001), but unable to prove insanity, although 
surprisingly influential in at least one case (e.g. United States 
v. Hinckley, 1982); SPECT can help determine competency 
to stand trial (e.g. United States v. Kasim, 2008), but is 
unable to establish causation between injury and affect (e.g., 
Lanter v. Kentucky State Police, 2005), or the exact cause of 
organic brain problems (e.g. Boyd v. Bell, 2005); PET can 
detect traumatic brain injuries or brain abnormalities (e.g. 
Penney v. Praxair, Inc., 1997), but is unable to diagnose 
neurodegenerative diseases like Alzheimer’s (e.g. United 
States v. Gigante, 1997) or electric shock injuries (e.g. 
McCormack v. Capital Electric, 2005); and finally, fMRI is 
unable to establish a connection between exposure to 
violence and aggressive behavior (e.g., ESA v. Blagojevich, 
2005), but is quite possibly the future of lie detection 
technology.  

 
Structural and Functional Neuroimaging II: A Comparison 
of Methods 

 
Structural and functional neuroimaging have 

significantly contributed to legal decision-making, providing 
key information about anatomy and behavior in neurolaw 
cases. However, there are considerable limitations to the 
applicability of neuroimaging methods; controversy remains 
as to whether such techniques are being used according to 
their capability. Researchers maintain that brain scans are 
only capable of providing anatomical, rather than behavioral 
information. “At the present time, imaging technology 
reveals the anatomical structure of and blood flow patterns in 
the brain but cannot directly provide information about 
behavior” (Illes et al., 2009, p. 108). Moreover, in U.S. 
courts, behavioral inferences from neuroimages are likely to 
be excluded as evidence (Moriarty, 2008).  

Nevertheless, neuroimaging modalities are used in a 
variety of legal contexts (Moriarty, 2008). Structural 
imaging, like MRI and CT scans, have been used in the 
courts as proof of physical or mental illness (e.g., In re Care 

and Protection of Sharlene, 2006; In re estate of Meyer, 
2001; State of Nebraska v. Kuehn, 2007; Moriarty, 2008, p. 
40-41); functional imaging, like PET and SPECT scans, has 
been used in civil cases (e.g., Blodgett-McDeavitt v. 
University of Nebraska, 2004; Green v. K-Mart Corp., 2004; 
Lanter v. Kentucky State Police, 2005), criminal cases (e.g., 
People v. Goldstein, 2004; People v. Williams, 2004; State of 
Washington v. Marshall, 2001; United States v. Mezvinsky, 
2002) and in the penalty phase of capital cases (e.g., Hoskins 
v. State of Florida, 1999; State of Tennessee v. Reid, 2006).  

Regardless of why the evidence is being submitted, 
litigants should carefully consider the reliability of 
neuroimaging prior to admission. As one researcher notes, 
“[h]istorically, neurological data have been given great 
evidentiary weight, often before the scientific basis 
warranted this degree of confidence” (Baskin et al. 2007, p. 
258). Therefore, the evidentiary value of neuroimaging 
should be equally weighed in the scales of law and science to 
determine admissibility. Structural imaging seems to be 
more admissible and reliable than the functional type, 
because it has been used and tested for a greater period of 
time. However, this should not negate the potential of 
functional imaging. Although structural imaging has a more 
extensive history in the legal system, functional imaging will 
certainly compete with its technological predecessor, both in 
terms of applicability and accuracy. While some emphasize 
the reliability of structural imaging (Pettit, 2007), others 
emphasize the potential of functional imaging (Mobbs et al., 
2007). Generally, U.S. courts have questioned the reliability 
of PET, SPECT and fMRI in contrast with MRI and CT, but 
researchers will continue to refine both structural and 
functional techniques for clinical and legal use.  

 
Conclusion: Interdisciplinary Perspectives on Neuroscience 
and Law 

 
The evidentiary value of neuroimaging evidence 

depends on the validity of its use and its relevance to the 
case. Brain imaging is more applicable in some court cases 
than others. In conclusion, it seems that neuroimaging 
evidence is generally admissible, but usually unreliable when 
it lacks a scientifically valid method. Clinical applications in 
neuroimaging are more likely to be admitted and deemed 
reliable as evidence. Yet, the admissibility of unreliable 
evidence is a reality that compromises legal integrity and 
scientific credibility. There is still medical-legal debate on 
the extent to which neuroimaging and law should interact. 
Most scientists and lawyers believe that neuroimaging can 
provide important details regarding the brain in both clinical 
and courtroom settings, but, there is no legal or scientific 
consensus on which neuroimaging technology should be 
admissible or reliable – this will remain an open question for 
some time.   

The evidentiary value of neuroimaging depends on its 
scientific reliability and legal admissibility. Technology will 
increase the former, and consequently, improve the latter. 
With all likelihood, science will continue to advance, 



SHAFI 
 

 38 

whereas law will continue to adapt. Both neuroscientists and 
lawyers should maintain their current dialogue on the legal 
implications of neuroscience and law. The integration of 
both fields does not necessarily imply a compromise in 
either: “Developments in neuroscience may well have 
substantial impact on how the law views people and 
behavior, but the legal system should be able to assimilate 
and use even revolutionary science [such as neuroimaging] 
without upending its own fundamental structure” (Garland, 
2004, p. 5).  

 
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Author Note 

The author is a recent graduate with a M.S. degree in Neuroscience and Education from Teachers College. This article was 
originally submitted as a Master’s Thesis in December of 2008 as a humble attempt to examine the newly emerging field of 
“neurolaw.” I would like to dedicate this paper to my step-father. I would also like to offer my thanks to all those who motivated 
me to write. 

 

http://moritzlaw.osu.edu/osjcl/Articles/Volume3_2/Symposium/Morse-PDF-04-05-06.pdf
http://moritzlaw.osu.edu/osjcl/Articles/Volume3_2/Symposium/Morse-PDF-04-05-06.pdf

