A Fair Trial: When the Constitution Requires Attorneys to Investigate Their Clients' Brains

By Koenig, Ellen G. | Fordham Urban Law Journal, November 2013 | Go to article overview

A Fair Trial: When the Constitution Requires Attorneys to Investigate Their Clients' Brains


Koenig, Ellen G., Fordham Urban Law Journal


ABSTRACT

The U.S. Constitution guarantees every criminal defendant the right to a fair trial. This fundamental right includes the right to a defense counsel who provides effective assistance. To be effective, attorneys must sometimes develop specific types of evidence in crafting the best defense. In recent years, the U.S. Supreme Court has found that defense attorneys did not provide effective assistance when they failed to consider neuroscience. But when must defense attorneys develop neuroscience in order to provide effective assistance? This question is difficult because the standard for determining effective assistance is still evolving. There are two leading approaches. First, in Strickland v. Washington, the Court adopted a two-prong "reasonableness" test, which, according to Justice O'Conner, may result in court decisions that fail to properly protect a criminal defendant's rights. Recently, courts have adopted a second approach based on guidelines promulgated by the American Bar Association.

This Note aims to answer this question. It first provides a background on the right to effective assistance of counsel and briefly describes neuroscience evidence, oppositions to and limitations on in its use, and its admissibility in court. Second, this Note attempts to give some guidance to attorneys by exploring the American Bar Association and U.S. Supreme Court standards. Third, it summarizes the results of a statistical analysis conducted by the author, which helps further define when courts require attorneys to develop neuroscience evidence. It concludes by arguing that attorneys need guidance to ensure they are not violating the Sixth Amendment. This Note expands on the American Bar Association's standard and suggests a framework attorneys may use to determine whether they should develop neuroscience evidence to ensure that their client has a fair trial.

TABLE OF CONTENTS

Introduction
  I. The Sixth Amendment, Effective Assistance, and
     Neuroscience: A Preliminary Framework for Understanding
     Counsel's Obligations
       A. The Sixth Amendment's Right to (Effective)
          Assistance of Counsel
          1. The U.S. Supreme Court's Delineated Framework:
             Strickland v. Washington
             a. Deficient Performance
             b. Actual Prejudice
          2. The ABA's Guidelines: Expanding on Strickland
             to Further Explain Sixth Amendment
             Requirements
       B. What Is Neuroscience?
          1. Neuroscience Evidence Is Currently Used in
             Criminal Courts
          2. Opposition: What Is Special About Scientific
             Evidence?
       C. What Exactly Is "Neuroscience Evidence"?
          1. Brain Scans
             a. Function: Reveals the Living Brain
             b. Structure: Anatomical Structure
             c. Limitations
          2. Neuroscience Evaluations
       D. Admissibility of Neuroscience Evidence
 II. Delineated Standards: When the ABA and Strickland
     Require Counsel to Develop Neuroscience Evidence in Their
     Background Investigation
       A. The ABA Guidelines: Attorneys Must Develop
          Neuroscience Evidence in Some Cases
       B. When the Strickland Standard Requires Attorneys to
          Develop Neuroscience Evidence
III. Case Analysis: Recent Court Decisions (Sometimes)
     Require Attorneys to Develop Neuroscience Evidence
       A. Case Law Analysis
       B. Results: Common Characteristics
       C. Results: Duty to Investigate Red Flags
       D. Red Flags
          1. Head Injury
          2. Low Intellectual Functioning
          3. Serious Substance Abuse
          4. Childhood Abuse
 IV. Proposed Framework: A "Reasonable Investigation"
     Should Include Investigating a Defendant's Mental Health
     Background, and, if Necessary, Developing Neuroscience
     Evidence
       A. Attorneys Need More Specific Instructions to
          Determine if Neuroscience Evidence is Required
       B. … 

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