![handle is hein.journals/appndx15 and id is 1 raw text is:
THE DISPARATE TREATMENT OF
NEUROSCIENCE EXPERT
TESTIMONY IN CRIMINAL
LITIGATION
JAMIE WAGENHEIM*
Neuroscience has the potential to significantly impact civil and criminal
litigation.' Attorneys have successfully used neuroscience evidence to demonstrate
that a client had an inability to form the requisite intent for a particular crime,2 that
a child's violence resulted from his experiences playing graphic video games,3 and
that brain deficiencies vitiated an assailant's self control.4 Not all state and federal
courts readily accept neuroscience evidence, instead applying their respective state
and federal rules of evidence on the admissibility of expert testimony with varying
degrees of stringency.5 Even states applying identical evidentiary standards have
taken different approaches to the admissibility of neuroscience evidence.6 For
neuroscience evidence to reach its full potential, the state and federal courts must
Copyright © 2012 by Jamie Wagenheim.
* J.D. and Health Law Certificate Candidate, 2012, University of Maryland Francis King Carey School
of Law (Baltimore, MD); B.A., 2009, Government and Politics, University of Maryland (College Park,
MD); B.A., 2009, History, University of Maryland (College Park, MD). The author wishes to thank
Professor Amanda Pustilnik for her guidance with this Comment, the editorial staff of The Journal of
Health Care Law & Policy for their assistance, and her family for their support and encouragement.
1. See Joshua Greene & Jonathon Cohen, For the Law, Neuroscience Changes Nothing and
Everything, 359 PHIL. TRANSACTIONS ROYAL Soc.1775, 1775 (2004) ([N]euroscience will challenge
and ultimately reshape our intuitive sense(s) of justice. New neuroscience will affect the way we view
the law ....).
2. See New York v. Weinstein, 591 N.Y.S.2d 715, 717 (Sup. Ct. 1992) (using neuroscience to
argue that a brain defect prevented a husband from forming the requisite intent to strangle his wife and
throw her out of a window twelve stories above the ground).
3. Entertainment Software Ass'. v. Blagojevich, 404 F. Supp. 2d 1051, 1059 (N.D. Ill. 2005)
(arguing that graphic video games cause children to behave aggressively).
4. See Jeffrey Rosen, The Brain on the Stand, N.Y. TIMES MAG., Mar. 11, 2007, at 49 (describing
the popularity of Daniel Martell's litigation consulting business, Forensic Neuroscience, where he has
testified in hundreds of civil and criminal cases on neuroscience issues, including the use of brain scans
to argue that a neurological impairment prevented litigants from exercising self-control).
5. See Owen D. Jones et al., Brain Imaging for Legal Thinkers: A Guide for the Perplexed, 2009
STAN. TECH. L. REV. 5, 26 (2009), http://stlr.stanford.edu/pdf/jones-brain-imaging.pdf (noting that
scientific evidence standards differ between states).
6. See infra Part II.](ViewImageLocal?handle=hein.journals/appndx15&div=1&collection=&method=preview&ext=.png&size=3)
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