Legal Research

Diagnostic Imaging in Sentencing and Trials

By Omar Ha-Redeye

Wired magazine is reporting what is probably the first instance of functional magnetic resonance imaging (fMRI) used in a courtroom.  The brain scan of a Chicago man accused of raping and killing a 10-year-old girl was used to demonstrate that he was a psychopath and should not be given the death penalty.

Although we don’t have the death penalty in Canada, some would also argue relevance because we barely have MRIs here as well.  As Forbes Magazine was fond of stating  last year,

Pittsburgh has more MRI machines than Canada.

The Canadian Institute for Health Information (CIHI) points out that although Canada has less MRI machines than the U.S. and England, and are still lower than the OECD average, we’re using our scanners more effectively.

Besides, more is not necessarily better.  The downside of more diagnostic imaging machines is what we call “recreational scanning,” or getting scans when they are not really needed to increase billing claims.  Jason Shafrin, a Ph.D. Economist, notes that many of these unnecessary scans have adverse health effects, and do produce false positives.

The Chicago murder case is not, however, the first time diagnostic imaging has been used in trial.  Anatomical and structural imaging such as x-rays have been used for many decades, but do not produce the same kind of information as functional imaging.

A functional imaging alternative has also been used in courts before, with Positron Emission Tomography (PET) scans. But PET scans are even more rare in Canada than MRIs.  I’m fortunate to be one of the few Canadians licensed (in the U.S.) to use PET scans, with hands-on experience, possibly the only one about to get a law degree.  The problem with PET scans are they use isotopes with incredibly short half-lives, and need a special generator to make them, resulting in astronomical production and distribution costs.

Yet another cheap alternative for functional imaging exists, which is entirely viable in Canada.  Single Photon Emission Tomography (SPECT) is available in every major medical institution (as long as we have Tc-99m supply), and for relatively cheap cost.  And the application extends well beyond complex criminal trials to the type of civil claims that are enormously abundant among the insurance bar.  Brain injuries are becoming increasingly common in motor vehicle claims.

I’ve outlined some of these issues in a working paper, Hotter Heads May Prevail in Ontario Courts -The Use of SPECT Imaging for Evaluating Mild Traumatic Brain Injury (TBI).  I hope it’s of use to practitioners working in this area.

Full post as published by Slaw.ca on November 24, 2009 (boomark / email).