Professor Gary S. Gildin gives well-attended talk titled ‘Neuro-Congruent Justice: Reforming the American Jury Trial’

CARLISLE, Pa.—More than 100 members of the Penn State Dickinson Law community—including administrators, faculty, staff, students, and alumni—attended Professor and Emeritus Dean Gary S. Gildin’s recent talk “Neuro-Congruent Justice: Reforming the American Jury Trial.”

During a presentation delivered in Apfelbaum Family Courtroom and Auditorium and livestreamed via Zoom, Gildin began by stating, “I'm starting to wonder whether the bedrock of our constitutional obligation to provide due process, before we take somebody's life, liberty, or property, the American jury trial, actually is failing in its purpose, and that's what I wanted to address here today.”

He noted that the American trial’s search for truth is organized around a presumed operation of the brain at odds with post-1990 discoveries in neuroscience. The trial process assumes that after removing potential jurors who admit they cannot be fair and impartial, those empaneled are fungible blank slates, willing and able to set aside life experiences to decide the case solely by weighing the evidence offered at trial.

At the conclusion of the case, the judge instructs the jurors not to let emotion enter their decision; to apply the burden of proof in deciding what happened; and to apply their findings of fact to abstract legal elements whose purpose is not to mimic lived experience residing in human neural networks but to artificially and intellectually categorize when conduct is and is not actionable.

Is that the best route? Gildin laid out why each of the above assumptions is at odds with neuroscientists’ research viewing the brain in action. While lawyers have adapted their advocacy to sync with how the jurors’ brains make decisions, the trial process has remained static, faithful to the now-discredited Triune brain.

Gildin introduced and invited discussion on whether (and if so, how) it is possible to reform the longstanding procedures and rules governing trials to better align with how the brain makes decisions, while maintaining the objectivity, predictability, and fairness of the present system.

Gildin’s proposals ranged from flipping the rules of evidence to presume exclusion of emotion-laden evidence unless its probative value substantially outweighs its prejudicial effect to inverting the trial process to afford the defendant the first opportunity to trigger the brains of the jurors’ autonomous prediction by presenting its case-in-chief before the prosecution/plaintiff calls its witnesses.

Award-winning filmmaker Joseph Myers, whose work has appeared on PBS and is co-founder with Gildin of Trial Story LLC, drawing on principles of neuroscience to consult with and train lawyers to find the single strongest story that the trier of fact will find not only predictable, but inevitable, met Gildin years ago while working on a documentary dealing with law. He introduced Gildin via Zoom. “Gary may be retiring [in June], but I know that he will keep doing interesting work,” said Myers.

After presenting his research, Gildin fielded questions from an engaged and enthusiastic audience, who touched on topics including how the research relates to Derrick Bell's interest convergence theory and how lawyers could or should adjust their approaches to trials.

Professor Gary S. Gildin teaches courses in Trial Advocacy as well as Advanced Persuasion. Both courses rely on recent findings in neuroscience to adapt the substance and techniques of advocacy to judges, jurors, and policymakers to align with how their brains will process information and reach a decision. Gildin recently authored "Neuro Advocacy: Harmonizing Persuasion with the Operation of the Brain," which will appear in Syracuse Law Review’s Symposium Issue on Advocacy and Litigation (forthcoming 2026).