Defense attorneys have always attempted to put their clients’ crimes in the context of the moment, from “crimes of passion” in the 19^th century, to “temporary insanity” in the 20^th. Neurobiological defenses based on brain injuries, psychological abuse and other “brain problems” have been rising sharply in the new millennium.

But what if the tables were turned? What if prosecutors started plunging into the brains of the accused, looking for little electrical flickers and other “clues” supplying proof of guilt?

A new analysis by a pair of professors says that current evidentiary standards will likely hold such evidence back from juries for the time being—but additional safeguards should probably be enacted to ensure no less than the “freedom of thought” in America.

“We conclude that while federal evidence rules constitute a substantial hurdle for the use of neuroscientific evidence, more ethical safeguards are needed to protect against future violations of fundamental rights,” they write.

The analysis, published recently in the journal Frontiers in Neuroscience, is authored by Calvin J. Kraft, of the Program of Liberal Studies at the University of Notre Dame, and James Giordano, of Pellegrino Center for Clinical Bioethics at Georgetown University Medical Center. more