Head, Examined: Clarence Darrow's X-Ray Vision of Criminal Responsibility

Abstract

Shortly after Roentgen's discovery of X-rays and their application to human imaging, the legal profession began to use the technology in litigation. Though the use of brain imaging did not find its way into formal arguments about criminal responsibility early in its evolution, such an analysis has been sought. 19th Century attempts to connect "pathological anatomy" to behavior were mostly disappointing. In 1924, the celebrated murder trial of Leopold and Loeb in Chicago became an early example of the use of scientific testimony that included radiographic exhibits. The penalty-phase decision to spare the defendants' lives was not based on scientific arguments. Sixty years later, the trial of John Hinckley included admission of CT scans to aid psychiatric testimony. Using excerpts from the expert reports and testimony, this article examines the nature and purpose of scientific evidence pertaining to blameworthiness. The author concludes that improvements in neuroimaging will continue to force a dialog between science and the law.

The history of forensic neuropsychiatry

“…Advances in medicine in general and the neurosciences in particular led to neuropsychiatry's increasing application to legal matters by lawyers and medical expert witnesses alike. The modern‐day frenzy of using neuroimaging evidence in the courtroom has its precedent dating back to 1924 when X‐ray imaging of the skull of one of the defendants (Leopold) was used by his medical experts to explain his mental state (Weiss, 2011). More recent research direction has been towards other diverse fields such as genomics and resulting in, unsurprisingly, the introduction of neurogenetic evidence into the courtrooms.…”

“…X‐ray examination of the brain, however, did get its day in court during the famous kidnapping and murder trial of Nathan Leopold and Richard Loeb in Chicago (Weiss, 2011). The defendants pled guilty to the charges.…”

From Neuroscience to Law: Bridging the Gap

“…The court proceedings of the case are interesting in two respects. First, this is one of the first criminal cases where psychological and neuroscientific evidence was presented in a trial (Weiss, 2011) -albeit some of it in a now debunked form of phrenology (Figure 5). Second, the concluding speech of the defense, presented by Darrow, is famous for its sentiment, rhetoric, and appeals to global worries about free will.…”

“…The case is known -apart from the morbidity of the crime -precisely for the issue of global worries related to free will being presented to, and having an effect on, the court. It is notable, however, that even though the case is also important for it being one of the first examples of biological and neuroscientific evidence being presented to the court as a basis of the culpability assessment of the defendants (Weiss, 2011;Wilson, 2015), this did not, once again, have an effect on the final decision of the court. What did play a part in the ruling, instead, were more general environmental and social considerations, related to the age of the defendants in particular.…”