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105 Geo. L.J. 323 (2016-2017)
Concocting Criminal Intent

handle is hein.journals/glj105 and id is 331 raw text is: Concocting Criminal Intent DEBORAH W. DENNO* My empirical study, which examines neuroscience evidence in 800 criminal cases over the course of two decades, is the first to determine how, when, and why victim brain scan evidence is introduced and used in court. My study reveals that although courts commonly rely on brain scans to show the extent of a victim's injury, the actual application of this neuroscience evidence extends far beyond the purpose for which it is admitted. Indeed, victim brain scans are introduced primarily by prosecu- tors, and nearly half of these cases are based on medical expert testi- mony that the victims suffer from shaken baby syndrome, a medical diagnosis with controversial scientific underpinnings and distorted legal ramifications. The diagnosis often successfully serves as the sole founda- tion for a prosecutor's case, with no proof of the defendant's act or intent beyond the victim's brain scan and the accompanying medical expert testimony. Shaken baby syndrome cases thus portray a troubling phenom- enon in which the key element of mens rea is either unclear or over- looked altogether and prosecutors are permitted to concoct intent out of brain scans that were admitted for the sole purpose of presenting the victim's injury. My study further reveals that shaken baby syndrome cases are merely the more transparent examples of the criminal justice system's failure to deal adequately with the surging influx of neuroscience evi- dence into the courtroom. Shaken baby cases thus represent a microcosm of prosecutorial misuse of victim neuroscience evidence more generally, particularly when the evidence is employed to determine a defendant's mental state. * Arthur A. McGivney Professor of Law, Founding Director, Neuroscience and Law Center, Fordham University School of Law. D 2016, Deborah W. Denno. All statistics and case distributions discussed in this Article are organized and readily available from the author in an Appendix. I am most grateful to the following persons for their contributions to this Article: Ron Barr, M.D., Vera Bergelson, Guyora Binder, Jenny Carroll, Luis Chiesa, Michelle Chipetine, John Cording, Kathleen Ellis, Tal Finkel, Dov Fox, Marianna Gebhardt, Christopher Greeley, M.D., Katherine Judson, James Kainen, Adam Kolber, Marisa McPeck Stringham, Joelle Moreno, Richard Squire, Sara Sun Beale, David Tarras, Lynn Tarras, M.D., Erica Valencia-Graham, and John Wright, M.D. For insightful comments on earlier versions of this Article, I thank the participants for presentations given at the Annual Conference on Empirical Legal Studies (CELS 2016), Benjamin N. Cardozo School of Law (the CrimFest), Brooklyn Law School (the Markelloquium), SUNY Buffalo Law School (the Buffalo Criminal Law Center Colloquium series), and Fordham Law School. Fordham Law School's library staff, particularly Alissa Black-Dorward, provided exceptional research support, as did my research assistants: Devavrat Chaudhary, Ben Chisholm, Megan Martucci, Robert Pawlick, and Gabrielle Sutjiawan. I am also indebted to four sources for research funding: Fordham Law School, the Proteus Action League, Fordham's Neuroscience and Law Center, and the Gerald Edelman Fellowship. Members of The Georgetown Law Journal gave outstanding editorial assistance. No individual or organization acknowl- edged in this Article necessarily supports the Article's interpretations or conclusions. Responsibility for any mistakes or misjudgments rests solely with me. 323

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