Controversies: Should we use Neuropsychological Evidence in court?

About the controversies series: Controversies publications present the academic literature pertaining to an issue, and take one empirically-based side. These publications are intended for distribution and are extremely useful for academics, professionals or laypeople who are interested in issues in psychology and law. They provide a means to disseminate empirically based information in a way that is both quick and useful. Controversies publications undergo the EAPL-S peer review process and editing before publication.

About the author: This article was written by Pawel Banas, EAPL-S representative for Poland and Ph.D. student at Jagiellonian University (Poland).

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Remember to also read our articles on forensic neuropsychology, polygraph evidence in court, and the insanity defense.


The use of neuroscientific data in the courtroom has become a hot topic in the field of psychology and law and has spurred considerable controversy among those in the criminal justice system. Lawyers have begun to base a client’s proof of innocence on neuroscientific evidence. This phenomenon has been dubbed by popular media and science as the, “my brain made me do it” defense. Neuroscience based defenses are supported by the numerous documented medical cases of brain “abnormalities” (e.g. tumors), which were argued to incite aggressive and impulsive behaviors.  Exercising neuropsychological evidence in the courtroom has not only gained the attention of popular media, but it has also re-opened a controversial philosophical debate concerning the notion of free will and responsibility. The present article discusses whether or not such evidence could, in fact, add credence to courtroom procedures.

“…the hope is that I might provide information that would buttress the argument for shifting the blame from the defendant to his brain, especially his amygdala.  This strategy is apparently not unusual.” – Professor Joseph LeDoux

Evidence for.

Advocates of neuroscience in the courtroom support their controversial stance with medical cases documenting a relationship between various forms of brain damage and changes in behavior. They highlight strong links between “abnormalities” of specific brain regions with displays of criminal behavior documented in the scientific (medical or psychological) literature. Of these key regions, the frontal lobes are of the most studied brain structures in that matter, where a significant correlation has been found between frontal lobe functioning and behavioral disinhibition. Specifically, certain dysfuctions of the frontal lobe may result in impulsive, reckless actions or even criminal behavior.  Another candidate region that may support the, “my brain made me do it” defense is the amygdala. Essentially, supporters of neuroscience in the courtroom presuppose that there is a significant difference between normal and abnormal brain functioning in relation to behavior, with the latter likely responsible for deviant criminal behavior.

Evidence against.

Skeptics of argue that neuroscientific data are ambiguous and that “hard science” could mislead the judge or jury, and that little is known about the specific relationship between brain functioning and criminal behavior. Moreover, they argue that brain imaging techniques are not precise (i.e., there is inconsistency in interpreting results), leading to insufficient means by which to explain the relationship between specific brain dysfunctions and criminal behavior. In a way, the “brain defense” is even seen as akin to the original insanity defense (based on the 1843 Daniel M’Naghten case). Using biological arguments to exculpate (i.e., find “not guilty”) defendants leads to greater questions concerning the interplay of personal responsibility and individual differences in the legal system. Should all those with brain deficiencies be treated more leniently by the justice system? The implications of allowing neuropsych evidence are far-reaching and associated with many potential problems.

What it all means.

To conclude, some have argued that the presence of neuroscience (and derivative areas such as, neuropsychology) does not lend anything unique to courtroom procedures; however, this is not to say that such information should not be included in evidentiary hearing. In other words, evidence that aids the judge and jury in shaping an informed decision should not be excluded without proper consideration. While the role of neuroscience in legal proceedings has been met with some controversy, techniques in this area of science may help to illuminate a direct path between specific neurological functions and the causes/motives of criminal behavior.
In the same vein, the present understanding of criminal responsibility may be re-evaluated by new findings in neuroscience.

Finally, neuropsychological evidence may be warranted in court decisions regarding an appropriate sentence. For example, information derived from such evidence may be used to determine whether to sentence an individual to prison, or whether to remand them to treatment at a forensic facility or psychiatrist. “”information on this matter).

The quote wall.

“I just don’t think we know enough at this point to make life and death decisions on the basis of what was going on in the brain during such an act..”

– Joseph LeDoux, University Professor, Henry and Lucy Moses Professor of Science, Professor of Neural Science and Psychology and Child Psychiatry at NYU

"We are personally responsible agents and are to be held accountable for our actions, even though we live in a determined universe.”

- Michael S. Gazzaniga, Professor of Psychology SAGE Center for the Study of the Mind

"…they'll say that's fine that you found this person has an abnormal brain -- but how many other people have similar abnormalities and don't commit crimes? The answer will be: quite a few."

– Hank Greely, Professor of Law at Stanford University

“Courts seem unwilling to find neuroimaging sufficient to prove either insanity or incompetency, but are relatively lenient about admitting neuroimages in death penalty hearings… Yet, there is a movement to try to make these new technologies "courtroom ready" in the near future, raising a host of legal, policy, and ethical questions to be answered.”

– Jane Moriarty, lawyer and expert on expert evidence and professional responsibility, on the current state of neuropsych evidence admissibility in the United States

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  1. Eagleman, D. M. (2008). Neuroscience and the law. The Houston Lawyer,  16, 36–40.
  2. Gazzaniga, M.S. (2011). Who's in Charge? Free Will and the Science of the Brain. Ecco, Harper Collins, New York.
  3. For an interesting J. LeDoux blog entry see:
  4. Moriarty, J. (2008). Flickering admissibility: Neuroimaging evidence in the U.S. Courts. Behavioral Sciences & The Law, 26(1), 29-49. doi:10.1002/bsl.795
  5. Redding, R. E. (2006). The brain-disordered defendant: Neuroscience and legal insanity in the twenty-First Century. American University Law Review, 56, 51–127.
  6. Shaw, J. (2011). Should we be tough on crime? EAPL-S Online Publications. URL:
  7. Sherrod, T. J., Harp, J.A. & Elliott, T. (1991). Neuropsychologists and neurolawyers. Neuropsychology, 5 (4), 293–305.

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