Should Biological Markers Be Included in Forensic Psychiatric Reports? ^†

Background: Across jurisdictions, forensic psychiatry evaluations primarily rely on clinical assessment, psychometric testing, and historical and behavioural information. Following advances in neuroscience and neurolaw, there is a growing interest in incorporating biological markers (such as structural and functional neuroimaging (structural MRI, CT, fMRI), electrophysiology (EEG)) into forensic psychiatric reports. Empirical studies indicate that courts are increasingly encountering such data, particularly in cases of homicide, severe violence, insanity evaluations, and capital sentencing. Methods/Results: Neuroimaging can document brain disease or injury that may impair cognition, affect regulation, or impulse control, important to assessment of criminal accountability, and future risk. Biological markers may corroborate psychiatric and neurological diagnoses, and as such make expert reasoning more transparent. Assessments that omit biological investigations may be considered incomplete, with a risk of undermining fair judicial process and equality before the law, as well as hampering future treatment and risk management. However, there are notable challenges that limit the use of biomarkers in forensic psychiatry evaluations. Neuroscientific findings have methodological and inferential limitations affecting their practical use in individual cases. Furthermore, there is a mismatch between the empirical nature of neuroscience and the normative legal questions such as those of criminal accountability and intent. Additional concerns include risks of over-interpretation (“brain overclaim”), “double-edged sword” effects (mitigation versus inferred dangerousness), inequitable access, and the absence of robust, jurisdiction-specific standards. Conclusions: The inclusion of biological markers in forensic psychiatry evaluations has considerable potential benefits but also raises challenges that need to be addressed in future practice, research, and guideline development.