Neuroimaging and the “ Complexity ” of Capital Punishment

T his question, asked by Senator Joseph Biden of Delaware at the hearing considering the nomination of John G. Roberts to be Chief Justice of the United States, illustrates the extent to which cognitive neuroscience —increasingly augmented by the growing powers of neuroimaging—has captured the imagination of those who make, enforce, interpret, and study the law. Judges, both state and federal, have convened conferences to discuss the legal ramifications of developments in cognitive neuroscience. Scholarly volumes have been devoted to the subject. The President’s Council on Bioethics convened several sessions to discuss cognitive neuroscience and its potential impact on theories of moral and legal responsibility. The United States General Accounting Office drafted a report surveying the views of government officials representing the CIA, Department of Defense, Secret Service, and FBI on the potential uses of “brain fingerprinting,” a lie-detection technique that utilizes functional neuroimaging. More recently, civil libertarians have expressed suspicion and concern that the United States government is using various neuroimaging techniques in the war on terrorism. Members of the personal injury bar have urged the use of functional neuroimaging to “make mild and moderate brain and nervous injuries ‘visible’ to jurors.” Not surprisingly, members of the civil defense bar have published articles criticizing the reliability of such evidence and arguing that it should be inadmissible. Criminal defense attorneys have likewise expressed a strong interest in using neuroimaging evidence to help their clients.