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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


   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.


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