Race, Brain Science, and Critical Decision-Making in the Context of Constitutional Criminal Procedure

Christian M. Halliburton, Race, Brain Science, and Critical Decision-Making in the Context of Constitutional Criminal Procedure, 47 Gonz. L. Rev. 319 (2011)


If there is one truth in every human interaction, it is that each involves the human brain. This is equally true, of course, among interactions between officers and individuals. Whether occurring as part of an officer’s scrutiny of data on a suspect’s computer, or as an officer decides whether to initiate a traffic stop, innumerable neural processing moments shape and direct investigative and enforcement actions. Similarly, individuals who experience a criminal event or are subject to law enforcement actions also constantly rely on their cognitive systems to interpret and make decisions during these moments.  Thus, the brain operates both generally and specifically in ways that uniquely affect the field of constitutional criminal procedure. For ubiquity alone, it is  therefore appropriate to analyze the infinite complexity of criminal investigation and encounter through the ever-increasing field of neurology.

Neuroscientific studies continue to shed new light on intricate interactions between the brain, its environment, and the mind that produce experience and create subjective realities.  These interactions produce perception and awareness, affect attention and memory, and underlie our decision-making processes and judgment. Knowledge of these functions and patterns is invaluable to understanding individual and group behavioral dynamics. Such knowledge is also particularly crucial to criminal procedure, an area focusing much of its own attention on the quality of perceptual data and decision-making results that affect police and civilian action in deeply meaningful ways. Many authors are now exploring the implications of brain science research for a variety of legal areas.  As such, our appreciation of the role the brain plays in social and legal interactions continues to expand.

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