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Traumatic brain injury (TBI), along with its acute and chronic sequelae, has emerged as a focus of neuroethical issues, such as informed consent for treatment and research, diagnostic and prognostic uncertainties, and the subjectivity of interpretation of data.The law has also more frequently considered TBI in criminal settings for exculpation, mitigation and sentencing purposes and in tort and administrative law for personal injury, disability and worker's compensation cases.I will consider in particular the preeminent method of functional neuroimaging: BOLD f MRI.While there are several practical limits on the biological information that current technologies can measure, these limits—as important as they are—are minor in comparison to the fundamental logical restraints on the conclusions that can be drawn from brain imaging studies.While f MRI detection of deception shows promise, and while excellent fundamental research is being conducted, f MRI is not yet ready for deployment in the courtroom.To explain this conclusion, this Article consists of four sections: (1) a discussion of the phenomena of deception and the difficulties attendant to detecting deception; (2) an accessible primer on MRI, f MRI, and BOLD f MRI technology; (3) a review and analysis of the existent research studies of f MRI detection of deception; and (4) an analysis of why, given the research to date, f MRI detection of deception should not be admitted as substantive evidence in a court of law.We conclude that it may reflect the persistence of a rationalist tendency in law, and an incomplete grasp of the benefits of understanding these essential constituents of human cognition and motivation.We contend that the best answer to such resurgent doubt is to demonstrate the pragmatic potential of this scholarship.
The past two decades have seen increasing attention being paid to both fields, in large part because of the advances in neuroimaging techniques and improved ability to visualize and measure brain structure and function.
This article surveys the neuroethics and neurolegal literature on the use of forensic neuroimaging within the courtroom.
Next, the related literature within medical anthropology and science and technology studies is reviewed to show how debates about forensic neuroimaging reflect cultural tensions about attitudes regarding the self, mental illness, and medical expertise.
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