Recently posted to SSRN:
"Law and Neuroscience: Possibilities for Prosecutors"
CDAA Prosecutors Brief, Vol. 33, No. 4, p. 17, 2011
FRANCIS X. SHEN, University of Minnesota Law School
Many see the introduction of neuroscience into law as necessarily leading to reduced culpability, mitigation, and the ratcheting down of incarceration rates. But such possibilities may not materialize if prosecutors stay ahead of the brain science curve. This commentary provides a brief introduction to neurolaw, and highlights several key features of neuroscientific evidence that are relevant to prosecutors' work.
I propose strategies by which prosecutors may respond to the introduction of neuroscientific evidence by the defense. The first, and perhaps most fundamental, strategy is to emphasize that just because an individual has an abnormal brain, it does not necessarily explain or excuse the defendant's behavior. Brain-behavior linkages are often tenuous. Second, through aggressive cross-examination of defense expert witnesses, prosecutors can highlight the differences between laboratory experiments and the real-world, and show how these differences matter greatly in limiting the law-relevant inferences that can be drawn from brain scans. No one has ever been scanned while in the heat of a fight, while plotting a murder, or while deciding whether or not to go through with a sexual assault.
Recognizing that the legal use of neuroscientific evidence relies so heavily on inference and interpretation, prosecutors have an opportunity to harness the power of brain science to both prevent its misuse and to constructively use the science to promote safety and social welfare. Possibilities abound for prosecutors who are willing to research, learn, and engage with the brain sciences.