Is neuroscience ready to be used in the courtroom? Judge Jed S. Rakoff, a federal judge for the Southern District of New York, doesn’t think so. Lawyers have been attempting to use neuroscience as evidence with increasing frequency, for purposes such as showing brain dysfunction, proving pain, or acting as a lie detector. However, Rakoff and many other judges are cautious to use this still developing area of science as evidence because “[d]uring the last century, the law [has] embraced science in ways that were inhumane and harmful—and eventually discredited.” An example of harmful science being embraced by the law is the practice of eugenics, which caused several states to allow forced sterilization of women. Another example is lobotomies, which used to be regularly ordered by courts to treat psychiatric patients, some with consent and some without. And as recently as the 1990s, science with no solid basis was used to supposedly recover memories, which led to criminal convictions.
According to concerned judges, this is the danger of allowing neuroscience into evidence, as it can lead to reliance on information which may eventually be discredited, producing unethical results. The effects of these decisions may be permanent, so it is important for science to be very well founded before entering the courtroom; otherwise a fleeting, erroneous scientific theory could have life-long results. “The worst thing that can happen with neuroscience is that it gets into the courtroom before it’s ready,” said Rakoff. This of course begs the question: “how certain must scientists be before their findings can appropriately be used as evidence?” In other words, “how sure is sure?”