Document Type

Article

Publication Title

North Carolina Law Review

Volume

104

Publication Date

2026

Abstract

The last 120 years have seen a surge in the use of neuroscientific evidence in American criminal law cases, fueled by discoveries in brain science that have challenged the legal system’s assumptions about human thinking and culpability. One key assumption is that many defendants “malinger,” that is, feign or fake insanity or mental illness, to garner an acquittal or mitigated punishment. Likewise, when potential evidence that a defendant is malingering is introduced in court, it can have a pronounced and powerful negative effect on the defendant’s insanity claim, especially when juries and criminal justice actors are already skeptical of insanity defendants. To shed light on this quandary, this Article relies on an original empirical study (“Neuroscience Study”) that I conducted, analyzing all criminal cases (totaling 8,335 cases) that have addressed neuroscientific evidence over the past twelve decades (1900–2020). The Article focuses primarily on the Neuroscience Study’s 3,108 insanity cases involving malingering, and it reveals some startling results. For example, one of the strongest arguments prosecutors can make to rebut neuroscientific defense evidence is to claim the defendant is malingering, a tactic that negatively influenced case outcomes in nearly two-thirds of the insanity cases in which it was made. In addition, over the past twelve decades, malingering claims in insanity cases have increased substantially, while insanity cases have plummeted. The consequences to defendants and the system as a whole can be severe. An expert’s false or inaccurate diagnosis of malingering can lead to highly detrimental outcomes, including longer sentences, offense enhancements, or denied treatment, while also reverberating across cases using neuroscientific evidence more generally. Such blunders effectively undermine the overarching goals of the criminal justice system, leading to unjust punishments and misconceptions about the intertwining of neuroscience and law.

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