This staff working paper was discussed at the Council's
September 2004 meeting.
It was prepared by staff solely to aid discussion, and does not represent
the official views of the Council or of the United States Government.
An Overview of the Impact
of Neuroscience Evidence
in Criminal Law
In approaching human behavior, science and ethics/law
have different objectives and interests: science seeks to understand
it, ethics seeks to judge it wisely. Law, the embodiment and teacher
of many of the community's shared moral practices and norms, seeks
to protect the community against dangerous or unacceptable behavior
by judging misconduct and punishing offenders. Although understanding
and judging are different activities, efforts to understand criminal
behavior and its causes continue to exert an influence on how society
deals with criminals, not only in considering guilt and innocence,
but, for example, in sentencing, decisions about parole, and proposals
for mandatory treatment, as well as in communal efforts to prevent
people from becoming criminals in the first place. In previous generations,
people looked to inheritance (genetics), anatomical features (phrenology),
a history of emotional trauma or unresolved psychic conflicts (psychoanalysis),
or socioeconomic deprivation (sociology and economics) to explain
why some people commit crimes and others do not. Today and tomorrow,
it seems, people will look increasingly to the brain (neuroscience).
It is none too soon to begin to think about how neuroscience will
and should affect our legal judgments and practices.
Although the law generally still holds
people personally responsible for their actions, various accommodations
have been made in the past to the findings of those who offer explanations
for misconduct. In addition to making room for justifications (e.g.,
self-defense), the criminal law already accepts legitimate excuses
that can lead to verdicts of "not guilty" (e.g., by reason of insanity);
it considers mitigating factors (e.g., extreme provocation, mental
incapacity) in determining sentencing; it uses medical treatments
that are made conditions of parole (e.g., chemical castration for
pedophiles). And it is easy to imagine how similar kinds of accommodations
and adjustments might be granted for brain-based explanations, should
these be forthcoming from neuroscience. Indeed, neuro-scientific
findings have already begun to find their way into criminal trials
and other aspects of the criminal law, notwithstanding the immaturity
of the science, and there is every reason to expect much more of
this in the future. To help the Council think about the significance
of neuroscience for the criminal law, staff has prepared this review
of the uses of neuroscientific evidence in criminal trials.
Over the last several meetings, the Council has begun to explore
the subject of neuroscience, brain, and behavior as a possible topic
of inquiry, and has focused some specific attention on the relationship
between neuroimaging and moral responsibility. One possible entry
point into this domain is through reflection on the impact that
neuroscience in general (and neuroimaging in particular) have had
on the administration of criminal justice. This is a fruitful approach
in that the criminal law already has within it mechanisms and processes
aimed at the determination of moral responsibility, and it admits
expert medical witnesses to testify to a defendant's state of mind.
This background paper essays to outline briefly the nature and scope
of these mechanisms and the way in which neuroimaging and neuroscience
testimony have to date augmented and affected their function. To
this end, it will be necessary first to give a summary account of
the role that determination of moral responsibility plays in criminal
law, both in the context of determination of guilt and the imposition
of punishment. Next, it will be necessary to address briefly the
procedural threshold questions of the admissibility of neuroimaging
evidence, as well as the constitutional entitlement to present such
evidence. There will then follow an extended discussion, with reference
to specific cases, of the present and projected application of neuroimaging
evidence to the legal mechanisms for the determination of criminal
I. The Role of Moral Responsibility in Criminal Law
Criminal law is itself inextricably intertwined with the concept
of moral responsibility. Indeed, a central distinction between
criminal and civil law is that the sanctions of the former carry
with them the moral censure of the polity, whereas the latter do
not. "Crime" has itself been defined by one commentator as "conduct
which, if duly shown to have taken place, will incur a formal and
solemn pronouncement of the moral condemnation of the community."1
A central function of criminal law is thus the punishment of wrongdoers
who transgress society's memorialized values. Prior to the imposition
of punishment, however, the criminal defendant must be adjudged
culpable of the charged offense, and thus worthy of society's blame.
Thus, as one member of this Council has rightly observed, "culpability
is the hallmark of modern criminal law."2
The two chief activities of the criminal law -- determination
of guilt and imposition of punishment -- turn largely on questions
of culpability and blameworthiness. Within the context of determining
guilt, the doctrine of mens rea is primarily driven by questions
of personal responsibility and intention; a failure to prove beyond
a reasonable doubt that the defendant had the requisite culpable
mental state can result in either acquittal or conviction on a lesser
charge. Similarly, the affirmative defense of excuse directly implicates
the question of moral culpability. Nowhere is this more dramatically
demonstrated than in the context of the excuse defense of insanity,
where the relevant inquiry often focuses on whether the defendant
could distinguish right from wrong, or conform his behavior to an
appropriate standard. The processes in place for determining criminal
punishment (that is, sentencing) are likewise aimed largely at the
question of moral responsibility: "The criminal law will generally
only impose its retributive or deterrent sanctions upon those who
are morally blameworthy - those who know they are doing wrong but
nonetheless persist in wrongdoing."3
There are procedures in place allowing litigants to introduce evidence
of mitigation or aggravation, in their effort to influence the sentencing
court's decision. Expert psychiatric testimony is frequently introduced
intro criminal proceedings, both for determining guilt and for assigning
A. Determination of Guilt
1. The Doctrine
of Mens Rea.
Coke's maxim, "Actus Non Facit Reus Nisi Mens Sit Rea"4
i is a seminal principle in American
criminal law. With very few exceptions, criminal guilt cannot
be established merely by demonstrating that a particular act was
committed; it must also be shown that the defendant acted with the
requisite intention for each element of the offense in question.
The Model Penal Code (which has been adopted in one form or another
by a majority of jurisdictions) sets forth four types of culpable
mental states for purposes of mens rea analysis (listed from
most culpable to least culpable): Purposefulness (acting with the
conscious purpose to engage in specific conduct or to cause a specific
result);5 Knowledge (awareness that
one's conduct is of a particular nature, or the practical certainty
that one's conduct will cause a specific result");6
Recklessness (conscious disregard for a substantial and unjustifiable
and Negligence (the creation of a substantial or known risk of which
one ought to have been aware).8
iii The failure to prove the requisite degree of culpability
for any element of the charged crime will result in either a finding
of not guilty or conviction on a less serious offense.
For example, the Model Penal Code establishes three types (degrees)
of criminal homicide - murder, manslaughter, and negligent homicide.9
The various types of criminal
homicide share the same actus reus, namely, "caus[ing] the
death of another human being," but are distinguishable based on
whether the defendant did so purposely or knowingly (murder), recklessly
(manslaughter), or negligently (negligent homicide). Thus, the
moral gravity of the offense (and the severity of punishment) is
deemed greater to the extent that it can be shown that the defendant's
decision was based on cool calculation rather than a momentary rash
impulse. Thus, if a person charged with murder can show that he
was "acting under the influence of extreme mental or emotional disturbance
for which there is a reasonable explanation or excuse,"10
he will be found not guilty, or will be charged instead with manslaughter
- a significantly less serious offense which carries a lesser punishment.
In this way, the doctrine of mens rea not only distinguishes
among various degrees of moral culpability, but also makes room
for the notion that under certain circumstances of provocation or
mental abnormality, moral responsibility for one's actions is diminished,
rendering one deserving of a more lenient punishment.
2. The Defense of Excuse
The doctrine of excuse provides another clear illustration of
the relationship between criminal law and moral responsibility.
The law "excuses" criminal conduct if there are circumstances that
negate the moral blameworthiness of the actor. In Holloway v.
U.S. (1945), the United States Court of Appeals for the D.C.
Circuit formulated the doctrine thusly: "Our collective conscience
does not allow punishment where it cannot impose blame."11
Renowned criminal law professor Sanford Kadish elaborated:
To blame a person is to express moral criticism,
and if the person's action does not deserve criticism, blaming
him is a kind of falsehood, and is, to the extent the person is
injured by being blamed, unjust to him. This lies behind the
There are a variety of excuses that can serve as affirmative defenses.
Two are particularly relevant to the present inquiry: insanity
(a) The Excuse of Insanity
The species of excuse defense that perhaps most clearly illustrates
the nexus between criminal law and moral responsibility is the insanity
defense. The insanity defense rests on the premise that it is unjust
to hold an irrational individual morally (and by extension, criminally)
responsible. Again, the DC Circuit gave voice to this intuition
in the Holloway case: "To punish a man who lacks the power
to reason is as undignified and unworthy as punishing an inanimate
object or animal. A man who cannot reason cannot be subject to
blame."13 There are a variety
of competing approaches to the insanity defense. One test for insanity,
the "M'Naghten Rule," requires proof that "at the time of the committing
of the act, the party accused was laboring under such a defect of
reason, from disease of mind, as not to know the nature and quality
of the act he was doing; or if he did know it, he did not know he
was doing what was wrong."14 An
alternative approach is the "irresistible impulse" test, which asks
whether mental disease impaired the defendant's ability to control
his actions. The "Durham Rule" holds that "an accused is not criminally
responsible if his unlawful act was the product of mental disease
or defect."15 The American Law
Institute developed a test for insanity as part of its Model Penal
Code which holds that "a person is not responsible for criminal
conduct if at the time of such conduct as a result of mental disease
or defect he lacks substantial capacity to either appreciate the
criminality of his conduct or to conform his conduct to the requirements
of the law." Among these approaches, the M'Naghten and ALI rules
are the overwhelming preferences for state legislatures. Almost
all states have adopted one or the other on a nearly equal basis.
Very few jurisdictions have adopted either the Durham rule or the
irresistible impulse test. The federal test for insanity, established
by the "Insanity Defense Reform Act of 1984" (enacted in response
to John Hinckley, Jr.'s acquittal by reason of insanity), requires
the defendant to demonstrate by clear and convincing evidence that
"at the time of commission of the acts constituting the offense,
the defendant, as a result of severe mental disease or defect, was
unable to appreciate the nature and quality or the wrongfulness
of his acts."16 The statute further
specifies that "mental disease or defect does not otherwise constitute
Despite the differences in the competing approaches to the excuse
defense of insanity, they all originate from the intuition that
an individual's moral blameworthiness (and thus criminal responsibility)
is mitigated when his reason is impaired by mental defect or abnormality.
(b) The Excuse of Infancy
Another doctrine of excuse relevant to the present inquiry is
the defense of infancy. This affirmative defense excuses criminal
conduct of children below a certain age on the grounds that they
are incapable of forming the requisite intent and are not susceptible
to deterrence. The relevant age is prescribed by statute.
B. Imposition of Punishment
The process of imposing punishment is also animated by principles
of moral responsibility. Criminal punishment, as stated above,
aims at meting out justice, deterring future misconduct, and expressing
society's condemnation for the transgression of its norms. The
process of criminal sentencing finds both defendants and prosecutors
making moral appeals to the sentencing authority, seeking lenience
or arguing for severity. Defendants will regularly argue that they
should be shown mercy on the grounds that they, while guilty as
a matter of law, are the victims of harsh circumstances or misfortune
- abuse, poverty, and the like. Defendants also often argue for
leniency on the grounds that they do not pose a grave ongoing threat
to society. Conversely, prosecutors commonly argue that severe
punishments are in order based on the heinous nature of the original
offense, or the defendant's propensity for future dangerousness.
In cases involving the death penalty, this process is somewhat more
formalized with a (statutorily defined) weighing of aggravating
and mitigating factors. In such circumstances, as a matter of constitutional
right (under the Eighth and Fourteenth Amendments), "the sentencer
. . . [shall] not be precluded from considering, as a mitigating
factor, any aspect of a defendant's character or record and any
of the circumstances of the offense that the defendant proffers
as a basis for a sentence less than death."18
II. Preliminary Procedural Issues
Before moving to the discussion of how neuroimaging evidence has
been or may in the future be used within the aforementioned framework
for the determination of guilt and imposition of punishment, it
is useful to address very briefly the procedural threshold questions
of admissibility of and constitutional entitlement to such evidence.
A. Scientific Evidence
There are essentially two standards for the admission of scientific
evidence, both named for the cases in which they were ennunciated:
Daubert and Frye. Courts following the Frye
approach admit only scientific testimony regarding theories and
methodologies that have gained "general acceptance" among members
of the relevant scientific field.19
The Daubert rule rejects this singular reliance on "general
acceptance" and instead vests the trial judge with the responsibility
to assess whether the proffered expert testimony is both reliable
and scientifically valid.20 In
evaluating "validity," courts are directed to consider a range of
factors including general acceptance, peer review, error rates,
and amenability to falsification.21
The Daubert standard applies in federal court, and a large
array of state courts. The Frye standard controls in approximately
20 state jurisdictions.
If a court regards proffered neuroimaging evidence as too novel,
it will sometimes deny its admission into evidence under the Frye
standard, on the grounds that it has yet to achieve "general acceptability."
Such was the case in People v. Protsman,22
in which the defendant sought to admit PET scan evidence and psychiatric
testimony to the effect that he was suffering from decreased frontal
lobe activity (due to traumatic brain injury) such that he could
not formulate the requisite intent for first degree murder. Because
the evidence had not yet achieved general acceptance, it was not
admissible. Similarly, in People v. Chul Yum,23
the defendant (who had been convicted of second degree murder) argued
on appeal that the trial court erroneously refused to admit his
proffered evidence of a SPECT brain scan which he claimed showed
diminished activity in his left temporal lobe and damage caused
by brain trauma, causing him to kill his mother and sister. Because
of the novelty of the diagnostic approach (i.e., using a SPECT scan
to diagnose brain trauma and post traumatic stress disorder), the
defendant failed to satisfy the court that the scientific evidence
was "generally accepted."
There are, however, many noteworthy examples of cases in which
neuroimaging evidence has met the requisite standards for scientific
testimony and has been admitted (both from jurisdictions that follow
Daubert rather than Frye, and in Frye jurisdictions
where the judge was convinced that the proffered evidence met the
"general acceptance" standard). These cases are set forth throughout
the discussion below.
B. Right to Present Evidence
The United States Supreme
Court has ruled that "the Constitution requires that a State provide
access to a psychiatrist's assistance" when the question of a criminal
defendant's sanity is being litigated.24
At least one court has held that this right extends to the provision
of neuroimaging tests; in People v. Jones, the appeals court
reversed the defendant's murder conviction on the grounds that he
was denied neurological testing that supported his defense that
he was suffering from brain damage that impaired his "ability to
think quickly and flexibly" and "ability to perceive risk."25
Additionally, it was reported that in 1998 a trial judge allocated
money for a CT scan and MRI for the defendant Jeremy Strohmeyer,
on trial for the murder of a seven year old child in Las Vegas,
III. Neuroimaging and Criminal Law
There are a few noteworthy instances in which neuroimaging evidence
has been introduced at the guilt phase of the criminal process to
support claims of lack of requisite culpable mental state or excuse
defenses based on insanity. These are detailed below, by category.
1. Negation of Mens Rea.
There are several cases in which defendants sought to admit neuroimaging
evidence that they were incapable of formulating the requisite culpable
mental state and were thus entitled to acquittal or conviction on
a less serious charge. Some defendants have succeeded in getting
this evidence before the jury (a noteworthy achievement in itself),
but in the main, this approach has not been overwhelmingly successful.
That said, it is difficult to develop a metric for success in this
context, as many of these cases ended in plea bargains rather than
convictions or acquittals. In any event, there does seem to be
a significant (and growing) volume of cases in which neuroimaging
evidence is adduced to negate mens rea.
In United States v. Erskine,27
the defendant (who had been convicted of making false statements
to an official of a federally insured bank) argued on appeal that
the court erroneously prevented him from introducing testimony and
a brain scan that he claimed showed that he lacked the mental capacity
to formulate the specific intent to "influence a bank" (a statutory
element of the crime with which he was charged). The U.S. Court
of Appeals for the Ninth Circuit agreed that he was entitled to
introduce such evidence on the issue of specific intent (though
it expressed no opinion as to the probative nature of such evidence).
Thus, the defendant's conviction was reversed.v
Similarly, in 1995, former United Way executive William Aramony
(charged with numerous counts of embezzlement from the charity fund),
introduced neuroimaging evidence in support of his claim that he
was suffering from "brain atrophy" and thus unable to satisfy the
requisite intent requirement to commit embezzlement. Shortly after
this evidence was introduced, he secured a favorable plea bargain.
Other defendants have not been as successful in demonstrating
a lack of mens rea by appeal to neuroimaging evidence. In
State v. Anderson,28 the
defendant presented to the jury expert testimony (supported by neuroscience
evidence) that brain-damage-induced depression and paranoia precluded
him from being able to premeditate and deliberate in a manner sufficient
to justify the charge of first-degree murder. The jury was not
persuaded and found him guilty on all counts. In U.S. v. Mezvinsky,29
the court held that the defendant
(who had been indicted on 66 counts of fraud and related offenses)
was not entitled to introduce PET scan evidence in support of his
claim that he was incapable of deception (the requisite mens
rea for his charges).
2. Excuse Defense of Insanity
There are a few very high profile examples of the introduction
of neuroimaging evidence as an adjunct to a claim of not guilty
by reason of insanity. For example, in U.S. v. Hinckley,30
the defendant (who attempted to assassinate President Reagan) presented
CT scan evidence showing "atrophy" of the brain. The neuroradiologist
for the defense testified that the degree of atrophy was abnormal
and possibly indicated the presence of organic brain disease. Another
witness for the defense (a psychiatrist) testified that the evidence
of atrophy increased the statistical likelihood that the defendant
was suffering from schizophrenia. The court ultimately admitted
this evidence in order to give the jury "all possibly relevant evidence
bearing on cognition, volition, and capacity" in considering the
defendant's insanity defense. The defendant was found not guilty
by reason of insanity.
In another high profile case, People v. Weinstein,31
the defendant (accused of strangling and defenestrating his wife),
successfully introduced PET scan images, which he asserted showed
reduced brain function in and around an arachnoid cyst in his frontal
lobe. The evidence was presented in support of the defense's theory
that Weinstein was not responsible for his actions due to mental
disease or defect. The prosecution vigorously opposed the admission
of this evidence, and moved to exclude it. Shortly after the judge
ruled it to be admissible, the prosecution quickly agreed to negotiate
a plea bargain for a reduced charge of manslaughter. It seems reasonable
to infer that the prosecution was concerned that the images would
be persuasive to jurors at trial.
One might speculate that as the ability to perform neurological
testing for the biological correlates of schizophrenia and related
disorders grows, so too will the incidence of defendants moving
for the admission of such evidence in support of their claims of
insanity. That said, the insanity defense is rarely invoked, and
is even more rarely successful.
B. Imposition of Punishment
While there are few reported cases in which defendants have secured
acquittals on the strength of neuroimaging evidence, defendants
have enjoyed some measure of success in the context of sentencing.
For example, such evidence has been introduced as an adjunct to
support a plea for leniency or claim of mitigating circumstances.
In early 2004, MRI and PET scan evidence helped to defeat two
separate death sentences for Simon Pirela. In April of 1983, Mr.
Pirela received a death after being convicted of murder (Commonwealth
v. Pirela); and in May of 1983 Pirela received another death
sentence, in a separate murder trial (Commonwealth v. Moralesvi).
When the Morales sentence was vacated (due to reversible
error for prosecutorial misconduct) and resentencing ordered, attorneys
for Pirela introduced MRI and PET scans as evidence in support of
mitigating factors of diminished capacity, brain damage and mental
impairment generally. The jury recommended unanimously that Pirela
be resentended to life in prison rather than executed.32
On appeal for Pirela's second death sentence, attorneys for the
defendant used the same PET and MRI scans to support the defense
claim that Pirela was mentally retarded, thus requiring the court
to vacate the death sentence and impose life imprisonment.33
vii The Judge in Pirela noted
that the expert testimony on the brain scans, combined with neuropsychologists'
testimony, "was quite convincing."
Similarly, in McNamara v. Borg,34
PET scan evidence was introduced in support of the defendant's mitigation
claim that he was suffering from schizophrenia. The defendant was
sentenced to life imprisonment rather than execution. According
to post-sentencing interviews, jurors acknowledged that they were
significantly influenced by the neuroimaging evidence in their decision
to spare the defendant's life.
There is at least one case in which the failure to allow neuroimaging
evidence at the sentencing phase of trial was held to be reversible
error. In Hoskins v. State,35
the Florida Supreme Court vacated the defendant's death sentence
and remanded the case for a new penalty proceeding so that the defendant
would have an opportunity to present a PET scan showing a brain
In contrast to the foregoing, there are numerous examples of cases
in which the defense's mitigation arguments supported by neuroimaging
evidence were not persuasive to the jury. For example, in People
the defendant (convicted of 16 counts of murder and assorted other
crimes) introduced PET scan images during his mitigation case, which
experts testified were consistent with obsessive-compulsive disorder.
The jury was unmoved by this evidence and sentenced Kraft to death.
Similarly, in People v. Holt,37
the defendant (convicted of murder,
robbery, rape, and other crimes) introduced PET scan images and
an EEG showing abnormalities in both temporal lobes and damage to
the cingulate gyrus region of the brain, which experts testified
was consistent with aberrant sexual behavior. The jury was not persuaded
by this mitigation evidence and sentenced the defendant to death.
Recent news reports suggest that a coalition of psychiatric organizations
is currently drafting an amicus brief for an upcoming Supreme Court
case involving the juvenile death penalty in which they will make
an appeal to neuroimaging evidence. These groups will argue (in
the spirit of the infancy defense) that execution of juveniles violates
the Eighth Amendment's proscription on cruel and unusual punishment,
because teenagers, by virtue of their immature brains, lack the
requisite culpability to warrant the ultimate punishment. The argument
is based on MRI scans showing that frontal lobe development (which
the advocates argue is the seat of moral judgment) is not yet complete
during adolescent years.
It bears noting that prosecutors might someday also seek to introduce
neuroimaging evidence in the sentencing phase of the criminal process.
Such evidence might prove useful in demonstrating aggravating factors
such as future dangerousness, drug or alcohol addiction, and the
like, in an effort to secure a more severe punishment or even the
denial or revocation of parole. To this point, there are no known
cases in which neuroimaging data have been used in determining fitness
The determination of moral responsibility is an integral function
of the criminal law, both at the guilt and punishment phases. Science-based
testimony (usually psychiatric) has already established a legitimate
place in both phases. Neuroimaging technology, still in its infancy,
has already had a modest impact on this process. At the guilt phase,
neuroimaging evidence has been marshaled in support of claims of
insufficient mens rea and as an adjunct to the insanity defense.
At the punishment phase, neuroimaging evidence has been introduced
to support claims of mitigation, with a noteworthy measure of success.
While the success rate of arguments supported by neuroimaging
evidence in the criminal context is somewhat mixed, the large number
of cases in which such evidence is presented is striking. Many
courts have admitted this evidence, and more will follow as the
science underlying neuroimaging becomes more "generally accepted"
(for purposes of the Frye test). The incidence of neuroimaging
evidence is also likely to increase as more courts follow the lead
of People v. Jones and come to regard access to neuroimaging
as part and parcel of the psychiatric testimony to which the defendant
is constitutionally entitled. Also, as neuroimaging evidence becomes
more widespread and word of related successes becomes well known,
criminal defense attorneys may come to regard it as standard practice.
Indeed, there are a handful of cases that have held that the failure
of defense attorneys to investigate and present evidence of their
client's organic brain damage constituted ineffective assistance
of counsel - a notoriously high threshold to satisfy.38
Looking forward, it seems that criminal sentencing, where the
defense counsel is afforded wide latitude to introduce any and all
information that might persuade the jury to act leniently, presents
the most fertile opportunity for argument supported by neuroimaging.
Particularly if the following anecdote, as reported by the Los
Angeles Times, proves to be true:
Jurors can be dazzled by the display. Christopher Plourd, a San
Diego criminal defense attorney, remembers well the first time he
use PET scans in the early 1990s during a murder trial. "Here was
this nice color image we could enlarge, that the medical expert
could point to," Plourd said. "It documented that this guy had
a rotten spot in his brain. The jury glommed onto that."39
Literally, "the act is not criminal unless the mind is criminal."
"The risk must be of such a nature and degree that, considering
the nature and purpose of the actor's conduct and the circumstances
known to him, its disregard involves a gross deviation from
the standard of conduct that a law-abiding person would observe
in the actor's situation." MPC 2.02(2)(c).
"The risk must be of such a nature and degree that the actor's
failure to perceive it, considering the nature and purpose
of his conduct and the circumstances known to him, involves
a gross deviation from the standard of care that a reasonable
person would observe in the actor's situation." MPC 2.02(2)(d).
"The reasonableness of the such explanation or excuse shall
be determined from the viewpoint of a person in the actor's
situation under the circumstances as he believes them to be."
There is no published record of the disposition of this case
"Morales" was an alias used by Simon Pirela.
In Atkins v. Virginia, the U.S. Supreme Court held
that execution of the mentally retarded violates the 8th
Amendment injunction against cruel and unusual punishment.
536 U.S. 304 (2002).
Henry M. Hart, Jr., "The Aims of the Criminal Law," 23 Law and
Contemporary Problems 401 (1958).
Rebecca Dresser, "Culpability and Other Minds," 2 Southern California
Interdisciplinary Law Journal 41 (Spring 1993).
In re Devon T, 584 A.2d 1287 (Md. App. 1991).
Edward Coke, The Third Part of the Institutes of the Law
of England 107 (1644).
Model Penal Code 2.02(2)(a).
148 F.2d 665, 65-67 (DC Cir 1945).
Sanford Kadish, "Excusing Crime," 75 California Law Review 257,
148 F.2d 665, 65-67 (DC Cir 1945).
M'Naghten's Case, 8 Eng. Rep. 718, 722 (1843).
Durham v. United States, 214 F.2d 862 (D.C. Cir. 1954).
Lockett v. Ohio, 438 U.S. 586, 604-05 (1978).
Frye v.United States, 293 F. 1013, 1014 (1923).
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592-94
See id. at 593; see also Jennifer Kulynych, "Psychiatric
Neuroimaging Evidence: A High-Tech Crystal Ball?" 49 Stanford
Law Review 1249, 1263 (1997).
88 Cal. App. 4th 509 (2001).
111 Cal. App. 4th 635 (2003).
Ake v. Oklahoma, 470 U.S. 68, 74 (1985).
See Las Vegas Review-Journal 8/30/98; National Law Journal
588 F.2d 721 (9th Cir. 1978).
206 F. Supp 2d 661 (D. Pa. 2002).
525 F. Supp. 1324 (D.D.C. 1981).
549 Pa. 400, 701 A.2d 516 (1997).
Jan. Term, 1983, No. 2143 (Phila C.P. Apr. 30, 2004).
923 F.2d 862 (9th Cir. 1991).
735 So.2d 1281 (Fla. 1999).
See, e.g., People v. Morgan, 187 Ill. 2d 500 (Ill.
Eric Bailey, "California and the West; Defense Probing Brain to
Explain Yosemite Killings; Crime: Cary Stayner is among a Number
of Defendants Whose Lawyers are Looking for Physical Explanations
for Brutal Murders," The Los Angeles Times, Part A; Part 1; Page
3 (June 15, 2000).