Law Commons^™

Deceptively Simple: Framing, Intuition And Judicial Gatekeeping Of Forensic Feature-Comparison Methods Evidence, Jane Campbell Moriarty

Jane Campbell Moriarty

Who Speaks For Neuroscience? Neuroimaging Evidence And Courtroom Expertise, Jane Campbell Moriarty, Daniel D. Langleben

Jane Campbell Moriarty

Athletes, Veterans, And Neuroscience: A Symposium On Traumatic Brain Injury And Law, Jane Campbell Moriarty

Jane Campbell Moriarty

Seeing Voices: Potential Neuroscience Contributions To A Reconstruction Of Legal Insanity, Jane Campbell Moriarty

Jane Campbell Moriarty

Misconvictions: When Law & Science Collide, Jane Moriarty

Jane Campbell Moriarty

Forthcoming 2013.

Brain Trauma, Pet Scans And Forensic Complexity, Jane Moriarty, Daniel Langleben, James Provenzale

Jane Campbell Moriarty

Positron Emission Tomography (PET) is a medical imaging technique that can be used to show brain function. Courts have admitted PET scan evidence in cases involving brain damage, injury, toxic exposure, or illness ("brain trauma") and to support claims of diminished cognitive abilities and impulse control. Despite the limited data on the relationships between PET, brain trauma and behavior, many courts admit PET scan evidence without much critical analysis. This article examines the use of PET as proof of functional impairment and justification of abnormal behavior by explaining its diagnostic use and limitations, the limited support for claims of its …

Using Brain Imaging For Lie Detection: Where Science, Law, And Policy Collide, Daniel D. Langleben, Jane Campbell Moriarty

Jane Campbell Moriarty

Progress in the use of functional magnetic resonance imaging (fMRI) of the brain to differentiate lying from truth-telling has created an expectation of a breakthrough in the search for objective methods of lie detection. In the last few years, litigants have attempted to introduce fMRI-based lie detection evidence in courts. Both the science and its possible use as courtroom evidence have spawned much scholarly discussion. This article contributes to the interdisciplinary debate by identifying the missing pieces of the scientific puzzle that need to be completed if fMRI-based lie detection is to meet the standards of either legal reliability or …

Rehabilitating Lawyers: Perceptions Of Deviance And Its Cures In The Lawyer Reinstatement Process, Bruce A. Green, Jane Moriarty

Jane Campbell Moriarty

State courts’ approach to lawyer admissions and discipline has not changed fundamentally in the past century. Courts still place faith in the idea that “moral character” is a stable trait that reliably predicts whether an individual will be honest in any given situation. Although research in neuroscience, cognitive science, psychiatry, research psychology, and behavioral economics (collectively “cognitive and social science”) has influenced prevailing concepts of personality and trustworthiness, courts to date have not considered whether they might change or refine their approach to “moral character” in light of scientific insights. This Article examines whether courts should reevaluate how they decide …

"Waiving" Goodbye To Rights: Plea Bargaining And The Defense Dilemma Of Competent Representation, Jane Moriarty

Jane Campbell Moriarty

The proposed amendments to the ABA Criminal Justice Standards for Prosecutors and Defense Lawyers (“Proposed Standards”) address a number of problematic issues related to the roles of both prosecutors and defense attorneys. This Symposium Article considers waiver of rights in the context of the Standards, focusing on guilty pleas and the so-called “preconditions” that prosecutors generally require before even entertaining the defendant’s proffer, colloquially termed “Queen for a Day” agreements It reviews the development in the law since 1993, the changes in the practice since that time, and the proposed changes to the Standards. The article focuses on the complex …

Will History Be Servitude?: The Nas Report On Forensic Science And The Rule Of The Judiciary, Jane Moriarty

Jane Campbell Moriarty

For several decades, the prosecution and its witnesses have maintained that despite little research and virtually no standards, they can match a fingerprint, handwriting, bullet and bullet cartridge, hair, dental imprint, footprint, tire track, or even a lip print to its unique source (collectively, “individualization evidence”). Not only can they match it, they claim, they can do so often without any error rate. In the last few decades, with the help of lawyers and academics, litigants have challenged the underlying reliability of individualization evidence. Scholars in various disciplines have written about the startling state of individualization evidence, including its lack …

Neuroscience, Law & Government: Foreword To The Symposium, Jane Moriarty

Jane Campbell Moriarty

The legal and legislative systems have begun to rely on neuroscience in various types of decision-making. Without question, the relationship between the disciplines will become more enmeshed as more data is generated by neuroscientists. Are we ready for this potential sea change that will be both rich and strange?

Visions Of Deception: Neuroimaging And The Search For Evidential Truth, Jane Moriarty

Jane Campbell Moriarty

The use of science in the search for truth poses consistent evidentiary problems of definition, causation, validity, accuracy, inferential conclusions unsupported by data, and real-world complications. And these evidentiary problems may well be implicated in the forensic use of neuroimages of deception. This article first briefly describes the various types of neuroimaging used to detect deception and describes some of the specific criticisms that have been leveled at the science. Second, the article outlines the standards governing admissibility and explains why the research to date does not yet meet any recognized standards of admissibility. Third, and finally, the article suggests …

Rape, Affirmative Consent To Sex, And Sexual Autonomy: Introduction To The Symposium, Jane Moriarty

Jane Campbell Moriarty

We may have moved in the West toward a standard in which “no means no” has the force of criminal law behind it. But are we ready for a standard in which only “yes means yes?” And if so, getting to yes may be a winding path to follow. The concept of consent, some of the symposium authors note, is a far more complicated inquiry than many appreciate. Consider the Eliot quotation above: is it consensual if his exploring hands encounter no defense? Is indifference sufficient to establish consent and if not, should his act be considered criminal rather than …

Flickering Admissibility: Neuroimaging Evidence In The U.S. Courts, Jane Moriarty

Jane Campbell Moriarty

This article explores the admissibility of neuroimaging evidence in U.S. courts, recognizing various trends in decisions about such evidence. While courts have routinely admitted some neuroimages, such as CT scans and MRI, as proof of trauma and disease, they have been more circumspect about admitting the PET and SPECT scans and fMRI evidence. With the latter technologies, courts have often expressed reservations about what can be inferred from the images. Moreover, courts seem unwilling to find neuroimaging sufficient to prove either insanity or incompetency, but are relatively lenient about admitting neuroimages in death penalty hearings. Some claim that fMRI and …

“Misconvictions,” Science And The Ministers Of Justice, Jane Campbell Moriarty

Jane Campbell Moriarty

DNA evidence has exonerated over two hundred wrongfully convicted defendants in the last several years, providing insights into the causes of such convictions. One such cause, faulty scientific evidence, is a focus of this article. For decades, many have written about the prevalence of and reasons for wrongful convictions --what I have termed “misconvictions.” A few reasons support the coinage “misconvictions”: the miscarriage of justice when an innocent person is convicted; the mistakes involved in the prosecution and trial of the case; the mistaken identification that may have occurred; and finally, the recognition that all wrongful convictions are a missed …

"While Dangers Gather": The Bush Preemption Doctrine, Battered Women, Imminence And Anticipatory Self-Defense, Jane Moriarty

Jane Campbell Moriarty

No abstract provided.

Symposium Foreward: Daubert, Innocence, And The Future Of Forensic Science, Jane Moriarty

Jane Campbell Moriarty

The years since Daubert have not been kind to those seeking to challenge prosecutorial expert evidence, as many of the Symposium authors recognize. After two decades of trying to convince courts that there is no empirical basis for handwriting identification testimony declaring a match between two samples, Michael Risinger claims to be packing his bags and leaving the island until there is a more conducive climate for examining the reliability problems.

The Reliability Of Latent Print Individualization Brief Of Amici Curiae Submitted On Behalf Of Scientists And Scholars By The New England Innocence Project, Commonwealth V. Patterson, Jane Campbell Moriarty, David M. Siegel, Mark Acree, Robert Bradley, Simon A. Cole, David L. Faigman, Stephen E. Fienberg, Paul C. Giannelli, Lyn Haber, Ralph N. Haber, Donald Kennedy, Jennifer Mnookin, Joelle A. Moreno, D. Michael Risinger, John R. Vokey, Sandy Zabell

Jane Campbell Moriarty

Forensic Science: Grand Goals, Tragic Flaws, And Judicial Gatekeeping, Jane Campbell Moriarty

Jane Campbell Moriarty

In the last decade, a number of scientists have published articles and testified in court, explaining the ways in which they believe that some of the forensic sciences do not meet reliability standards and that laboratories make errors. The explosion of exonerations resulting from DNA technology has raised questions about the accuracy of many forensic sciences and the quality of some laboratory testing. A substantial number of these defendants can point to erroneous forensic science as a contributing cause of their wrongful convictions. In the courts, increasingly, the parties have substantial and serious disagreements about the quality of forensic science. …

“While Dangers Gather”: The Bush Preemption Doctrine, Battered Women, Imminence And Anticipatory Self-Defense, Jane Campbell Moriarty

Jane Campbell Moriarty

Since the Bush Administration issued its controversial Preemption Doctrine, which claims to permit the United States to unilaterally and preemptively attack a putative enemy deemed to be a threat to national security, I have been rethinking the concept of self-defense as it applies to battered women who kill their abusers. When President George W. Bush spoke about the peril of not taking action “while dangers gather,” I thought about the thousands of battered women in the grip of domestic terrorists who must also make decisions about when and whether to use violence to save their own lives. This article concludes …

Introduction And Overview, Jane Moriarty

Jane Campbell Moriarty

Volume 1 The history of mental illness in criminal cases. Volume 2 The insanity defense. Volume 3 Competency to be tried, imprisoned, and executed.

Wonders Of The Invisible World: Prosecutorial Syndrome And Profile Evidence In The Salem Witchcraft Trials, Jane Campbell Moriarty

Jane Campbell Moriarty

The primary aims of this Article are to deconstruct the evidence from the Salem witchcraft trials and to determine whether those prosecutions relied upon syndrome and profile evidence, and whether such evidence played a substantial role in the convictions. The secondary aim is to determine whether modern cases employ evidentiary methods sufficiently similar to the Salem cases such that we should reconsider prosecutorial syndrome and profile evidence. This Article concludes that prosecutorial syndrome evidence and, to a lesser degree, prosecutorial profile evidence, were relied upon in the Salem cases and were important to the convictions. Moreover, in modern cases, which …