“Good and bad, I defined these terms, quite clear no doubt somehow”: Neuroimaging and competency to be executed after Panetti


  • Michael L. Perlin J.D.

    Corresponding author
    • Professor and Director, International Mental Disability Law Reform Project; Director, Online Mental Disability Law Program, New York Law School, 185 W. Broadway, New York, NY 10013, U.S.A.
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    • Portions of this article were presented at the annual conference of the American College of Forensic Psychiatry (April 2008), the American Academy of Psychiatry and Law (October 2009), the National Academy of Neuropsychology (November 2009), the Stanford Law School, Center for Law and Biosciences (February 2010), and the University of Pennsylvania Forensic Psychiatry Workshop series (April 2010).


There has been little consideration, in either the caselaw or the scholarly literature, of the potential impact of neuroimaging on cases assessing whether a seriously mentally disabled death row defendant is competent to be executed. The Supreme Court's 2007 decision in Panetti v. Quarterman significantly expanded its jurisprudence by ruling that such a defendant had a constitutional right to make a showing that his mental illness “obstruct[ed] a rational understanding of the State's reason for his execution.” This article considers the impact of neuroimaging testimony on post-Panetti competency determination hearings, and looks at multiple questions of admissibility of evidence, adequacy of counsel, availability of expert assistance, juror attitudes, trial tactics, and application of the Daubert doctrine, and also considers the implications of the lesser-known Panetti holding (that enhances the role of expert witnesses in all competency-to-be-executed inquiries). It warns that the power of the testimony in question has the capacity to inappropriately affect fact-finders in ways that may lead “to outcomes that are both factually and legally inaccurate and constitutionally flawed.” Copyright © 2010 John Wiley & Sons, Ltd.