1 Shahram Khoshbin, M.D. (notes on file with the author). See Louise H. Marshall & H.W. Magoun, Discoveries in the Human Brain: Neuroscience Prehistory, Brain Structure, and Function 27 (1998) (quoting Hippocrates, The Genuine Works of Hippocrates 334 (Francis Adams trans., Charles Darwin ed., Dover 1868) (“[From the brain] come joys, delights, laughter and sports, and sorrows, grief, despondency, and lamentations. And by this, in an especial manner, we acquire wisdom and knowledge, and see and hear, and know what we fail and what are fair.”).

2 Panourias, Loannis G. et al., Hippocrates: A Pioneer in the Treatment of Head Injuries, 57 Neurosurgery 181, 188 (2005).CrossRefGoogle ScholarPubMed

3 Marshall & Magoun, supra note 1, at 27-32 (discussing the focus on ventricles from the fifth century B.C. to the eighteenth c. A.D.). The authors note the writings of Poseidolonius, a Byzantine surgeon of the fourth century B.C., whose observations led him to conclude that damage to the ventricles could result in changes in mental function. Id. at 28.

4 Id. at 41. See Ronald L. Eisenberg, Radiology: An Illustrated History 326-331 (1992) (describing Walter Dandy's work).

5 These drawings are a testament to his fascination with the brain. Id. at 30 (noting that Vesalius rejected the medieval view that the ventricles were the site of the soul, and instead posited that the brain was the “main organ of intelligence, movement, and sensation.”); see also Marshall & Magoun, supra note 1, at 63 (noting that Vesalius was responsible for the trend toward brain tissue, rather than brain water (ventricles), as the source of thought).

6 Eisenberg, supra note 4, at 31, describing Descartes’ writings about the effect of movement of ventricular fluid on the pineal gland; see also Renato G. Mazzolini, Schemes and Models of the Thinking Machine (1662-1672), in The Enchanted Loom: Chapters in the History of Neuroscience 70-71 (Pietro Corsi ed. 1991).

7 Eisenberg, supra note 4, at 31; see also Mazzolini, supra note 6, at 71-143.

8 Eisenberg, supra note 4, at 31.

9 Mazzolini, supra note 6, at 71 (describing Descartes’ hypothesis that all mental faculties are the result of the interaction of flowing “spirits” within the ventricles with the soul).

10 Id.

11 Id.

12 Claudio Pogliano, Between Form and Function: A New Science of Man, in The Enchanted Loom: Chapters in the History of Neuroscience 144-203 (Pietro Corsi ed. 1991).

13 Albrecht, Adalbert, Cesare Lombroso: A Glance At His Life's Work, 1 J. Am. Inst. Crim. L. & Criminology 71, 71-72 (1910).CrossRefGoogle Scholar

14 Id. at 72.

15 Id. at 74.

16 Marshall & Magoun, supra note 1, at 51 (Gall); Pogliano, supra note 12, at 152 (Spurzheim).

17 Marshall & Magoun, supra note 1, at 52.

18 Id.

19 Pogliano, supra note 12, at 154 (describing Gall's extensive collection of skulls and casts).

20 Marshall & Magoun, supra note 1, at 66-67.

21 Id.

22 Id. at 69 (discussing Wernicke's discovery of the locus of speech).

23 Id. at 71.

24 Id.

25 An example is functional magnetic resonance imaging (fMRI), a technique that attempts to elucidate “regions of interest” (ROI) based on the lesion method. Fernandez, G. et al., Intrasubject Reproducibility of Presurgical Language Lateralization and Mapping Using fMRI, 60 Neurology 969, 969 (2003).CrossRefGoogle ScholarPubMed

26 Shapiro, H. L., Earnest Albert Hooton 1887-1954, 56 Am. Anthropologist 1081 (1954), available at http://www.aaanet.org/gad/history/083hootonobit.pdf.CrossRefGoogle Scholar

27 Eisenberg, supra note 4, at 323.

28 Id.

29 Roentgen was born on March 27, 1845. Id. at 32. He died on February 10, 1923. Id. at 38. He discovered the X-ray at 23. Id. at 28-32. He prepared a manuscript on his discovery for the Wurzburg Physical Medical Society on December 28, 1895, copies of which he sent to well-known colleagues. Id. at 28. By January 6, 1896, the news was already being published, along with commentary on its medical significance. Id. at 28-29.

30 Eisenberg, supra note 4, at 323 (quoting E. Brecher & R. Brecher, The Rays: A History of Radiology in the United States and Canada (1969)).

31 Kevles, Bettyann H., Naked to the Bone: Medical Imaging in the Twentieth Century 36 (1997) (quoting Arthur Fuchs, Edison and Roentgenology 57, No. 2 146 (1947)).Google Scholar

32 Id. at 36.

33 Id. at 38 (noting that Edison became wary, and stopped experimenting with X-rays himself, when he noticed some “reddening around his own eyes” and “strange pitting on his assistant's skin”); see also Goodman, Philip C., The New Light: Discovery and Introduction of the X-ray, 165 AJR 1041 (1995) at 1045 (describing the progression of Edison's assistant's radiation burns through to the assistant's death in 1904).

34 DiSantis, David J., Early American Radiology: The Pioneer Years, 147 Am. J. Roentgenology 850, 851 (1986)CrossRefGoogle ScholarPubMed (quoting Ruth Brecher & Edward Brecher, The Rays: A History of Radiology in the United States and Canada (1969)).

35 Eisenberg, supra note 4, at 323-324.

36 Sturge-Weber Syndrome, 3 Pediatric & Developmental Pathology 301 (2000).CrossRefGoogle Scholar

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38 Id. at 326-329.

39 Id.

40 Id. at 329.

41 Id. at 337.

42 Id.

43 Id. at 339.

44 Id. at 339-340.

45 Id. at 340.

46 Id. at 427.

47 Id.

48 Id.

49 Id. at 428.

50 PET and SPECT have several problems; including susceptibility to artifacts, because the scanning takes a long time and the radioligands used do not distribute evenly in the brain. However, in combination with other techniques, these two technologies remain very useful.

51 Marshall & Magoun, supra note 1, at 89.

52 Id. at 91.

53 Id. at 90-91.

54 Id.

55 Id.

56 Eisenberg, supra note 4, at 467. Hounsfield and Cormack won the Nobel Prize for Physiology and Medicine in 1979 for their discoveries. Id.

57 Id. at 468.

58 Id. at 467.

59 Id.

60 Kevles, supra note 31, at 159.

61 Id.

62 Id. at 159-160.

63 Id. at 160.

64 Eisenberg, supra note 4, at 469-470.

65 Id. at 470-471.

66 Id. at 469-470 (illustrating the application of CT scanners to other parts of the body).

67 Id. at 470-471.

68 Id. at 471.

69 Id. at 323.

70 Kevles, supra note 31, at 167, 169.

71 Id. at 176.

72 Id. at 175-176.

73 Id. at 176.

74 Id.

75 Id.

76 Id. See also Eisenberg, supra note 4, at 472.

77 Eisenberg, supra note 4, at 474.

78 Id. at 474. Damadian's technique “stimulated more skepticism than interest because the NMR signals were extremely weak and susceptible to noise interference from a variety of sources.” Id.

79 Id. at 474.

80 Id.

81 Id.

82 Id.

83 Id.

84 New Magnetic Imaging Technique Can Show Brain Activity, http://www.onelife.com/evolve/att.html (last visited May 11, 2004).

85 Ganslandt, Oliver et al., Magnetic Source Imaging Combined with Image-Guided Frameless Stereotaxy: A New Method in Surgery Around the Motor Strip, 41 Neurosurgery 621 (1997).Google Scholar

86 See id.

87 See Katisko, Jani P.A. & Koivukangas, John P., Optically Neuronavigated Ultrasonography in an Intraoperative Magnetic Resonance Imaging Environment, 60 Neurosurgery 373 (2007).Google Scholar

88 Rasche, Dirk et al., Volumetric Measurement of the Pontomesencephalic Cistern in Patients with Trigeminal Neuralgia and Healthy Controls, 59 Neurosurgery 614, 615 (2006).CrossRefGoogle ScholarPubMed

89 Ashburner, John & Friston, Karl J., Voxel-Based Morphometry--The Methods, 11 NeuroImage 805, 806 (2000).CrossRefGoogle Scholar

90 See Miyagi, Yasushi et al., Inferior Temporal Sulcus as a Site of Corticotomy: Magnetic Resonance Imaging Analysis of Individual Sulcus Patterns, 49 Neurosurgery 1394 (2001).CrossRefGoogle ScholarPubMed

91 See Jouanneau, Emmanuel et al., Very Late Frontal Relapse of Medulloblastoma Mimicking a Meningioma in an Adult: Usefulness of 1H Magnetic Resonance Spetroscopy and Diffusion-perfusion Magnetic Resonance Imaging for Preoperative Diagnosis: Case Report, 58 Neurosurgery 789 (2006).CrossRefGoogle Scholar

92 See id.

93 See Thijs, Vincent N. et al., Is Early Ischemic Lesion Volume on Diffusion-Weighted Imaging an Independent Predictor of Stroke Outcome?: A Multivariable Analysis, 31 Stroke 2597, 2600-01 (2000).CrossRefGoogle ScholarPubMed

94 See generally Gaetz, Michael & Bernstein, Daniel, The Current Status of Electrophysiologic Procedures for the Assessment of Mild Traumatic Brain Injury, 16 J. Head Trauma Rehabilitation 386 (2001).CrossRefGoogle ScholarPubMed

95 See id. at 388; see also Simeon, Daphne et al., Feeling Unreal: A PET Study of Depersonalization Disorder, 157 Am. J. Psychiatry 1782, 1783 (2000).CrossRefGoogle ScholarPubMed

96 See id. The technique has several vulnerabilities, including that the statistical manipulations and the algorithm need to be appropriate to what is being measured, while at the same time allowing for sensitivity and validity.

97 This is particularly true in today's world, where television has fostered a public infatuation with forensic medicine, aptly termed the “CSI factor.” We are indebted to Mona Cowin of the Middlesex District Attorney's Office for this phrase and for her very helpful suggestions on evidentiary issues in this paper.

98 Paul Bloom, Seduced by the Flickering Lights of the Brain, Seed Magazine, June 27, 2006, at 2-3 (citing Deena Skolnick Weisberg et. al., The Seductive Allure of Neuroscience Explanations, J. Cognitive Neuroscience (forthcoming 2007), available at http://pantheon.yale.edu/~dls73/Assets/Weisberg-neuro%20explanations.pdf.).

99 Staff Working Paper, An Overview of the Impact of Neuroscience Evidence in Criminal Law (President's Council on Bioethics (Sept. 2004) at www.bioethics.gov/background/neuroscience_evidence.html. In taking note of the increase in testimony using clinical information about the brain in primarily criminal cases, Jennifer Kulynych wrote: “It is now common for a psychiatrist to refer to the physiological state of an individual's brain when evaluating a mental disorder. Moreover, such evaluation increasingly includes a reference to neuroimages. In a legal proceeding, the visual impact of such neuroimages is hard to overstate.” Kulynych, Jennifer, Psychiatric Neuroimaging Evidence: A High-Tech Crystal Ball?, 29 Stan. L. Rev. 1249, 1251 (1997).CrossRefGoogle Scholar

100 Stuart Taylor, Judge Rebukes Hinckley Witness over CAT Scan, N.Y. Times, May 20, 1982, at B13.

101 Id.

102 Id.

103 Id.

104 Stuart Taylor, CAT Scans Said to Show Shrunken Hinckley Brain, N.Y. Times, June 2, 1982, at D19.

105 Stuart Taylor, Hinkley is Cleared but is Held Insane in Reagan Attack, N.Y. Times, June 22, 1982, at A1.

106 Pettit, Mark Jr., FMRI and BF Meet FRE: Brain Imaging and the Federal Rules of Evidence, 33 Am. J.L. & Med. 319, 334 (2007)CrossRefGoogle ScholarPubMed (citing People v. Weinstein, 591 N.Y.S.2d 715 (1992)).

107 Id.

108 Staff Working Paper, supra note 99, at 9.

109 Id.

110 Id.

111 Id. (citing McNamara v. Borg, 923 F.2d 862 (9th Cir. 1991)).

112 Staff Working Paper, supra note 99, at 12.

113 Id.

114 Id. at 10.

115 Id. at 12 (citing Eric Bailey, California and the West; Defense Probing Brain to Explain Yosemite Killings; Crime: Cary Stayner is among a Number of Defendants Whose Lawyers are Looking for Physical Explanations for Brutal Murders, L.A. Times, June 15, 2000, at A-1-3).

116 Staff Working Paper, supra note 99, at 12.

117 Id. at 7 (citing People v. Jones, 620 N.Y.S.2d 656 (1994)).

118 509 U.S. 579 (1993).

119 Kulynych, supra note 99, at 1260 (citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993)); see Pettit, supra note 106, at 323 (citing Fed. R. Evid. 104).

120 Pettit, supra note 106, at 323 (quoting Fed. R. Evid. 702). In Massachusetts, the standard for admissibility of scientific evidence is given by Commonwealth v. Lanigan, 641 N.E.2d 1342 (Mass. 1994) (“Lanigan II”). Lanigen held that the gatekeeper role of a judge is to make a preliminary assessment of whether reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts at issue. Lanigan, 641 N.E.2d. at 1349 (citing Daubert, 509 U.S. at 594).

121 See Gatowski, S.I., et al., Asking the Gatekeepers: A National Survey of Judges on Judging Expert Evidence in a Post-Daubert World, 25 Law & Human Behavior 433 (2001)CrossRefGoogle Scholar (noting that in a survey of 400 state judges, results demonstrate that judges overwhelmingly support the ‘gatekeeping’ role as defined in Daubert, whether or not followed in their state.).

122 Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

123 Id.

124 Deena Skolnick Weisberg et. al., The Seductive Allure of Neuroscience Explanations, J. Cognitive Neuroscience (forthcoming 2007), available at http://pantheon.yale.edu/~dls73/Assets/Weisberg-neuro%20explanations.pdf.

125 Kulynych, supra note 99, at 1259.

126 Indeed, Kulynch hints at this near the end of her paper, suggesting that the judge “perhaps consult additional outside sources” after reviewing briefs of the parties and “assessing the research literature” in preparation for instructing the jury. Id. at 1267-1270.

127 Nuwer, M., Assessment of Digital EEG, Quantitative EEG, And EGG Brain Mapping: A Report of The American Association Of Neurology And The American Clinical Neurophysiology Society, 49 Neurology 277, 277 (1997).CrossRefGoogle Scholar

128 See id. at 277. These technologies became commercially available in the 1980s and almost immediately found their way into courtrooms for every purpose imaginable.

129 Nuwer, supra note 127, at 277.

130 Id.

131 Id.

132 Id.

133 Id.

134 Id.

135 Id.

136 Id.

137 Id. at 277-78.

138 Id. at 278.

139 Id. at 285.

140 Id.

141 Id.

142 Id.

143 Id. at 279.

144 Id. at 285.

145 See generally Nuwer, supra note 127.

146 Id. at 284.

147 The report was followed by two articles in opposition—one from a competing medical society, and the other by individual researchers. Coburn, Kerry L. et al., The Value of Quantitative Electroencephalography in Clinical Psychiatry: A Report by the Committee on Research of the American Neuropsychiatric Association, 18 J. Neuropsychiatry Clinical Neurosciences 460 (2006)CrossRefGoogle Scholar; Hoffman, Daniel A. et al., Limitations on the American Academy of Neurology and American Clinical Neurophysiology Society Paper on QEEG, 11 J. Neuopsychiatry Clinical Neuroscience 401 (1999).CrossRefGoogle ScholarPubMed Research did not reveal a more recent report from the AAN and ACNS than the 1997 Nuwer report, and to the best of our knowledge it still represents the official position of the AAN and ACNS with respect to these technologies.

148 Fed. R. Evid. 706 (“A court may on its own motion … enter an order to show cause why expert witnesses should not be appointed …”).

149 We are indebted to Jennifer Kulynych for this suggestion.

150 Institute of Medicine of the National Academies Frequently Asked Questions, http://www.iom.edu/CMS/6008.aspx (last visited June 28, 2007).

151 The President's Commission for the Study of Ethical Problems in Medicine and Biomedicine and Behavioral Research, 48 Fed. Reg. 34,408, 34,408 (July 28, 1983) (referring to the Public Health Service Act (P.L. 94-622), which was amended in 1978).

152 Exec. Order No. 13237, 66 Fed. Reg. 59,851 (Nov. 28, 2001).

153 Id.

154 Id.

155 Id.

156 Staff Working Paper, supra note 99.