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March 29, 2017


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Patrick S. O'Donnell

The problems narrated and documented here are perhaps quickened and even a bit more complicated when it comes to forensic psychology and psychiatry, particularly insofar as experts (and members of the public after them, in other words, potential jurors), are liable to “neuromania” (Raymond Tallis). See, for instance, Stephen Morris’s paper, “Neuroscience Evidence in Forensic Contexts: Ethical Concerns,” a chapter in a forthcoming volume, Ethics Dilemmas in Forensic Psychiatry and Psychology Practice, edited by Ezra E. H. Griffith, M.D. (Columbia University Press), and available at SSRN,* the abstract of which follows:

“The chapter addresses whether the use of new neuroscience techniques, especially non-invasive functional magnetic resonance imaging (fMRI) and the data from studies employing them raise new ethical issues for forensic psychiatrists and psychologists. The implicit thesis throughout is that if the legal questions, the limits of the new techniques and the relevance of neuroscience to law are properly understood, no new ethical issues are raised. A major ethical lapse would occur if practitioners use neuroscience without the proper understanding. It concludes that little new neuroscience is directly relevant at present to forensic practice and prescribes modesty and caution before employing it as the basis for expert reports and testimony in criminal and civil law cases.”


Those learning, teaching, practicing or theorizing about the law (of course one might be engaged in all of these activities) with a philosophical disposition might want to read Michael S. Pardo and Dennis Patterson’s Minds, Brains, and Law: The Conceptual Foundations of Law and Neuroscience (Oxford University Press, 2013) as well as their edited volume, Philosophical Foundations of Law and Neuroscience (Oxford University Press, 2016).

By way of placing of placing forensics within larger legal, evidentiary, criminal law, and scientific contexts, I have the temerity to recommend the following:
• Anderson, Terence, David Schum, and William Twining. Analysis of Evidence. New York: Cambridge University Press, 2nd ed., 2005.
• Brown, Mark B. Science in Democracy: Expertise, Institutions, and Representation. Cambridge, MA: MIT Press, 2009.
• Brown, Richard Harvey. Toward a Democratic Science: Scientific Narration and Civic Communication. New Haven, CT: Yale University Press, 1998.
• Haack, Susan. Evidence Matters: Science, Proof, and Truth in the Law. New York: Cambridge University Press, 2014.
• Jasanoff, Sheila. Science at the Bar: Law, Science, and Technology in America. Cambridge, MA: Harvard University Press, 1995. [while dated in parts, still helpful for thinking through these topics]
• Javala, Jarkko, Stephanie Griffiths, and Michael Maraun. The Myth of the Born Criminal: Psychopathy, Neurobiology, and the Creation of the Modern Degenerate. Toronto: University of Toronto Press, 2015.
• Kincaid, Harold and Jacqueline A. Sullivan, eds. Classifying Psychopathology: Mental Kinds and Natural Kinds. Cambridge, MA: MIT Press, 2014.
• Rose, Hilary and Steven Rose. Genes, Cells and Brains: Bioscience’s Promethean Promises. London: Verso, 2012.
• Tallis, Raymond. Aping Mankind: Neuromania, Darwinitis, and the Misrepresentation of Humanity. Durham, UK: Acumen, 2011.
See too the material I gathered together at the post, Mapping the Dimensions of Prosecutorial Misconduct: A Short Reading Guide:


One of the interesting issues that is not being looked at (but for example may have been a factor in the Amanda Knox/Sollecito case) is the advent of Low Copy Number (LCN) DNA. I'm not sure if any law review articles have addressed the key problem - it's growing sensitivity. The concern is about tertiary transfer and lab contamination - that the tiny quantities new LCN techniques can detect dramatically increases the routes by which trace amounts of DNA can travel from source to forensic location. The second concern is over laboratory cross contamination - that existing precautions for keeping forensic samples separate and in particular keeping reference samples separate may be inadequate.

It's an interesting topic which would be worth reading about, as it provides a mix of anecdotal cases, statistic questions and straight science.

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