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In this article, we consider the therapeutic jurisprudence implications of the use of neuroimaging techniques in assessing whether a defendant is competent to stand trial, a topic that has been the subject of no prior legal commentary. Recent attention paid to neuroscience in the criminal process has focused on questions of mitigation and competency to be executed, but the potential of such evidence transcends these areas.

There has been almost no attention paid to its potential impact on a critical intersection between the criminal trial process and inquiries into mental or psychological status: a defendant’s trial competency. Less than a handful of reported cases consider this question, and it is “under the radar” for most relevant scholarship as well, notwithstanding that (1) this inquiry is, numerically, the most important “disability law” question relevant to criminal law, (2) the costs of these hearings are staggering, and (3) the incompetency status in no way admits or presumes factual guilt. It is imperative that the ways in which neuroimaging may influence competency determination be studied and understood.

We review legal standards for competency in the context of mental disabilities, then examine what neuroimaging may be able to add to these determinations. We examine this in the context of therapeutic jurisprudence, discussing whether the introduction of scientifically-based evidence of incompetency will lead to a therapeutic outcome for the defendant, no matter what its usefulness to the court. We also consider the important, related questions of (1) defense counsel’s competency to provide effective representation in this important area of law-and-science, and (2) an indigent defendant’s access to such testimony.

Again, there is virtually no legal scholarship on this important topic. We hope that this paper encourages others – judges, scholars, policymakers, forensic mental health professionals – to think carefully about the questions we seek to address and our proposed solutions.