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I recently found myself thinking about how we would allow evidence dealing with neuroscience into the courtroom. The question interested me because I wanted to know how our judicial system would differentiate between real and useful evidence versus what may seem no better than allowing a Shaman enter to argue a point based on "evidentiary mysticism".  What I found was that there are two different legal rules for allowing use of neuroscience evidence. The first is the Frye rule and the second is the Daubert rule. Daubert applies in Federal Courts and in States that have adopted it, while the Frye rule applies in all other courts. The difference between the texts of the standards can seem nuanced but presents two different outcomes judicially. Joseph T. Walsh has a great primer on the two rules if you would like to explore them more, but the issue that I would like to deal with here is simple and does not require a complete knowledge of both rules. Basically you just have to un...

Much virtual and actual ink has been spilled of late about the dangers of rushing to bring brain-imaging technologies into the courtroom.  Not only neuroskeptics, [1] but also preeminent neuroscientists, [2] have urged caution when it comes to the prospect of fMRI data being admitted as trial evidence.  And brain-based lie detection, as one of the most alluring areas of imaging research, has in particular come in for a great deal of hand-wringing. These portents of doom are perhaps even more premature than would be the use of fMRI “polygraphy” as evidence.  Worrying now about that prospect is a bit like throwing out the bathwater before the baby has even gotten into the tub.  While it’s true that a few ill-informed judges have made a few ill-conceived decisions along these lines (and those mostly in India, not the United States), the vast weight of judicial precedent, procedure, and practice makes it overwhelmingly likely that courts will move too slowly, rather t...