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Neurolaw and Criminal Justice

By Ken Strutin, Published on December 28, 2008

Rapid advancements in forensic neuroscience are having an impact on criminal justice. The use of neuroimaging has emerged from medical analysis identifying abnormalities and dysfunctions to delving into lie detection and decision making. The courts are facing evidence about what the brain's form and function can reveal about human behavior and knowledge.

Currently the application and validity of neuroscience in criminal cases is being debated, particularly as a basis for prosecution. See, e.g., Judges Junk Bogus Neuroscience, New Scientist, December 21, 2008 (Judge John "Kennedy's gathering, at the New Jersey Judicial College in Teaneck, agreed that brain scans, if accompanied by the opinion of a medical professional, can reveal if a person is in pain or mentally competent to stand trial, but cannot be used to determine a state of guilt."); India’s Novel Use of Brain Scans in Courts Is Debated, New York Times, September 14, 2008 ("Now, well before any consensus on the technology’s readiness, India has become the first country to convict someone of a crime relying on evidence from this controversial machine: a brain scanner that produces images of the human mind in action and is said to reveal signs that a suspect remembers details of the crime in question." The full text of the decision is available online: State v. Sharma, Sessions Case No. 508/07 (India Dec. 6, 2008).) Meanwhile defense lawyers continue to make use of brain scans in the areas of competency, culpability and mitigation. See, e.g., The Brain on the Stand, New York Times, March 11, 2007.

This article highlights selected recent publications, news sources and other online materials concerning the applications of cognitive research to criminal law as well as basic information on the science and technology involved.

News

Conferences

Research

Baylor College of Medicine’s Initiative on Neuroscience and Law
This project "addresses how new discoveries in neuroscience should navigate the way we make laws, punish criminals, and develop rehabilitation. The project brings together a unique collaboration of neurobiologists, legal scholars, ethicists, medical humanists, and policy makers, with the goal of running experiments that will result in modern, evidence-based policy." "The initiative will fuel new experiments leveraging Baylor’s areas of expertise – for example, neuroimaging for the prediction of recidivism, and real-time brain feedback for rehabilitation." And they offer a course in Neuroscience and Law, which includes an extensive reading list.

MacArthur Foundation Law and Neuroscience Project
"To address the diverse and complex issues that neuroscience raises for our legal system, we have launched The MacArthur Foundation Law and Neuroscience Project. This Project consists of two Research Networks and an Education and Outreach Program, all coordinated by a Central Office and overseen by a Governing Board, chaired by Sandra Day O'Connor. The Research Networks are focused on criminal responsibility and prediction as well as legal decision making concerning neuroscience. These Research Networks will conduct and foster legal and neuroscientific research on their topics. When appropriate, they will recommend legal reforms and ethical guidelines. The mission of the Education and Outreach Program is to also inform the public through the media, and to provide training in relevant neuroscience for legal officials."

Stanford Center for Law and the Biosciences
"The Center for Law and the Biosciences, directed by Professor Hank Greely, examines biotech discoveries in the context of the law, weighing their impact on society and the law's role in shaping that impact. The Center is part of the Stanford Program in Law, Science & Technology."

Lie Detection

Brain Fingerprinting (Wikipedia)
"Brain Fingerprinting is a controversial forensic science technique that determines whether specific information is stored in a subject’s brain by measuring electrical brainwave responses to words, phrases, or pictures that are presented on a computer screen (Farwell & Smith 2001). Brain fingerprinting was invented by Lawrence Farwell. The theory is that the brain processes known, relevant information differently than it processes unknown or irrelevant information (Farwell & Donchin 1991). The brain’s processing of known information, such as the details of a crime stored in the brain, is revealed by a specific pattern in the EEG (electroencephalograph) (Farwell & Smith 2001, Farwell 1994)."

Brain Fingerprinting Laboratories
"Brain Fingerprinting Laboratories is a privately held company founded by Dr. Lawrence A. Farwell. After 20 years of research and testing, Dr. Farwell began applying the Brain Fingerprinting® technology in the criminal justice system. In several dramatic cases (Harrington & Grinder), he demonstrated that Brain Fingerprinting testing could profoundly change the criminal justice process, giving both prosecutors and defense attorneys a new scientific method of identifying the guilty and exonerating the innocent. In a major breakthrough, Brain Fingerprinting test results were admitted as evidence in a US District Court in March 2002. On February 26, 2003, in the Terry Harrington appeal, the Iowa Supreme Court left undisturbed the law of the case establishing the admissibility of the Brain Fingerprinting test evidence."

Commentary: Functional MRI Lie Detection, 36 J. Am. Acad. Psychiatry Law 499 (2008)
"Functional brain imaging with magnetic resonance is a useful research tool for showing regional metabolic changes with ongoing brain activity. Use of functional imaging to study the anatomy and function of various brain areas has recently been applied to the examination of the emotional life of patients including those with anxiety, panic, or depression. The application of this technology to the complex problem of lie detection is the subject of an article by Joseph R. Simpson, MD, PhD, in this issue of The Journal. The present article concludes that the use of functional imaging to discriminate truth from lies does not meet the Daubert criteria for courtroom testimony."

Commentary: The Future of Forensic Functional Brain Imaging, 36 J. Am. Acad. Psychiatry Law 502 (2008)
"'Functional MRI Lie Detection: Too Good to be True?' in this issue of The Journal, Joseph Simpson reviews the merits and the limitations of using fMRI to detect deception. After presenting the gaps in experimental data that stand in the way of translating the laboratory proof of concept to a field application, Simpson surveys the legal, regulatory and ethics concerns facing fMRI, should it emerge as a technologically robust method of lie detection. In our commentary, we update and interpret the data described by Simpson, from the points of view of an experimental scientist and a forensic clinician. We conclude that the current research funding and literature are prematurely skewed toward discussion of existing findings, rather than generation of new fMRI data on deception and related topics such as mind-reading, consciousness, morality, and criminal responsibility. We propose that further progress in brain imaging research may foster the emergence of a new discipline of forensic MRI."

Guilty? Investigating fMRI’s Future as a Lie Detector, Radiology Today, May 16, 2005
This article describes the results of a study conducted at the Temple University School of Medicine that combined polygraph examinations with functional magnetic resonance imaging (fMRI).

Investigative Techniques: Federal Agency Views on the Potential Application of "Brain Fingerprinting" (GAO 2001)
"This report provides information on how Brain Fingerprinting is intended to work and federal agency views on its potential application. To obtain information on Brain Fingerprinting, we interviewed the developer, selected federal agency officials and three scientists in the field of psychophysiology, who were familiar with the technique. Although our review did not constitute a technical analysis of Brain Fingerprinting, we provide the views of those three scientists in appendix I."

New Lie Detectors: Neuroscience, Deception, and the Courts, 58 Psychiatric Services 460 (2007)
"This column examines the use of two technologies in lie detection. 'Brain fingerprinting' is based on the finding that the brain generates a unique brain-wave pat-tern when a person encounters a familiar stimulus. Use of function-al magnetic resonance imaging in lie detection derives from studies suggesting that persons asked to lie show different patterns of brain activity than they do when being truthful. Issues related to the use of such evidence in courts are discussed. The author concludes that neither approach is currently supported by enough data regarding its accuracy in detecting deception to warrant use in court."

Scholarly Articles

How The Brain Thinks About Crime And Punishment, Science Daily, December 11, 2008
"In a pioneering, interdisciplinary study combining law and neuroscience, researchers at Vanderbilt University peered inside people’s minds to watch how the brain thinks about crime and punishment."

Law, Evolution, and the Brain: Applications and Open Questions, 359 Philosophical Transactions of the Royal Society 1697 (2004)
"This essay discusses several issues at the intersection of law and brain science. If focuses principally on ways in which an improved understanding of how evolutionary processes affect brain function and human behavior may improve law's ability to regulate behavior. It explores sample uses of such 'evolutionary analysis in law' and also raises questions about how that analysis might be improved in the future. Among the discussed uses are: 1) clarifying cost-benefit analyses; 2) providing theoretical foundation and potential predictive power; 3) assessing comparative effectiveness of legal strategies; and 4) revealing deep patterns in legal architecture. Throughout, the essay emphasizes the extent to which effective law requires: 1) building effective behavioral models; 2) integrating life science perspectives with social science perspectives; 3) considering the effects of brain biology on behaviors that law seeks to regulate; and 4) examining the effects of evolutionary processes on brain design."

Law and Behavioral Biology, 105 Colum. L. Rev. 405 (2005)
"Society uses law to encourage people to behave differently than they would behave in the absence of law. This fundamental purpose makes law highly dependent on sound understandings of the multiple causes of human behavior. The better those understandings, the better law can achieve social goals with legal tools. In this Article, Professors Jones and Goldsmith argue that many long held understandings about where behavior comes from are rapidly obsolescing as a consequence of developments in the various fields constituting behavioral biology. By helping to refine law's understandings of behavior's causes, they argue, behavioral biology can help to improve law's effectiveness and efficiency. Part I examines how and why law and behavioral biology are connected. Part II provides an introduction to key concepts in behavioral biology. Part III identifies, explores, and illustrates a wide variety of contexts in which behavioral biology can be useful to law. Part IV addresses concerns that sometimes arise when considering biological influences on human behavior."

Law, Responsibility, and the Brain, 5 PLoS Biology 693 (2007)
"This article addresses new developments in neuroscience, and their implications for law. It explores, for example, the relationships between brain injury and violence, as well as the connections between mental disorders and criminal behaviors. It discusses a variety of issues surrounding brain fingerprinting, the use of brain scans for lie detection, and concerns about free will. It considers the possible uses for, and legal implications of, brain-imaging technology. And it also identifies six essential limits on the use of brain imaging in courtroom procedures."

Neuroimaging and the 'Complexity' of Capital Punishment, 82 N.Y.U.L. Rev. 1265 (2007)
"The growing use of brain imaging technology to explore the causes of morally, socially, and legally relevant behavior is the subject of much discussion and controversy in both scholarly and popular circles. From the efforts of cognitive neuroscientists in the courtroom and in the public square, the contours of a project to transform capital sentencing both in principle and practice have emerged. In the short term, such scientists seek to intervene in the process of capital sentencing by serving as mitigation experts for defendants, where they invoke neuroimaging research on the roots of criminal violence to support their arguments. Over the longer term, these same experts (and their like-minded colleagues) appeal to the recent findings of their discipline to embarrass, discredit, and ultimately overthrow retributive justice as a principle of punishment. Taken as a whole, these short and long term efforts are meant ultimately to usher in a more compassionate and humane regime for capital defendants. This article seeks to articulate, analyze, and provide a critique of the project according to the metric of its own humanitarian aspirations. It proceeds by exploring the implications of the project in light of the mechanics of capital sentencing and the heterogeneous array of competing doctrinal rationales in which they are rooted. The article concludes that the project as currently conceived is internally inconsistent, and would, if implemented, result in ironic and tragic consequences, producing a death penalty regime that is even more Draconian and less humane than the deeply flawed present framework."

Pain Detection and the Privacy of Subjective Experience, 33 Am. J.L. & Med. 433 (2007)
"Pain is a fundamentally subjective experience. We have uniquely direct access to our own pain but can only make rough inferences about the pain of others. Nevertheless, such inferences are made all the time by doctors, insurers, judges, juries, and administrative agencies. Advances in brain imaging may someday improve our pain assessments by bolstering the claims of those genuinely experiencing pain while impugning the claims of those who are faking or exaggerating symptoms. These possibilities raise concerns about the privacy of our pain. I suggest that while the use of neuroimaging to detect pain implicates significant privacy concerns, our interests in keeping pain private are likely to be weaker than our interests in keeping private certain other subjective experiences that permit more intrusive inferences about our thoughts and character."

Social and Emotional Influences on Decision Making and the Brain, 9 Minn. J.L. Sci. & Tech. 899 (2008)
"How do we make decisions? How do we judge what is right or wrong and how does this judgment translate to behavior? Over the last decade, research on the human brain has begun to shed light on such questions. Those research efforts build on a strong foundation of animal research responsible for the delineation of neural circuitry involved in processing information about rewards and punishments. Animal research also provided for the development of an understanding of how such circuitry operates during simple decision-making, such as pressing a lever to receive a reward. Advances in technology, chiefly the advent of neuroimaging techniques such as functional magnetic resonance imaging (fMRI), have allowed researchers to investigate similar matters regarding the operation of the human brain. Furthermore, research using these techniques may be extended in new directions to address questions not easily explored in animals, such as those involving the more complex decisions that occur in human society, (e.g., trusting an individual during a business trans-action). These research efforts have introduced interdisciplinary collaborations and considerations, ranging from philosophy to economics, into the field of cognitive neuroscience. The contributions of these diverse fields do much to shape current thinking on human decision-making. In this paper, we will discuss how social information can modulate traditional ways of thinking about rational and economic decision-making specifically by affecting the neural systems of reward. First, we present an overview of the neural circuitry underlying human reward systems. Next we present a description of an experiment where social impressions affect trust judgments and decision-making. Finally, we address potential implications of the experimental findings to the legal field and discuss the potential of future interdisciplinary collaborations across law and neuroscience."

Neuroscience

Neuroimaging

Journals

Professional Societies

Research Centers

Texts