Neurisprudence

Judges and Neuroscience

Jyotpal Singh — Mon, 23 Jun 2008 18:33:11 +0000

Judges are now being educated about neuroscience. The American Association for the Advancement of Science (AAAS) in conjunction with the National Conference of Lawyers and Scientists (NCLS) has recently begun holding seminars on Neuroscience and Law aimed at educating judges and increasing the linkages between the scientific and legal communities.

This is a very important step forward for both law and science because judges play such a critical role in the legal system. Judges make crucial decisions which affect not only the immediate case but also the later cases that will be bound by the decision under the principle of stare decisis. Informed, reasoned decisions can only be made about scientific topics in the courtroom when judges have good information and are well-educated regarding the issue. One of the dangers of mixing developing science and legal policy is that the scientific information can be distorted and abused. As neuroscience evidence and issues are brought into courtrooms more in the future, the need to have well-informed judges will grow to ensure that the new knowledge can be properly incorporated into the law while avoiding abuse or distortion of the science. This new development is a sign of change in the right direction.

For a summary of the fourth seminar in the series and other information, visit: http://www.abanet.org/scitech/emergingnews/judsci.html.

Neuro Law Conference Recap...

Jyotpal Singh — Wed, 28 May 2008 14:35:28 +0000

On Friday, May 23, 2008, Baylor College of Medicine's Initiative on Neuroscience and Law hosted its first Neuroscience and Law Conference. The growing interest in neuroscience and law was clearly evidenced by the fact that over 250 lawyers, academics and students attended the event. The exciting afternoon featured six talks as well as a Q&A session with the panel of speakers.

The afternoon began with Dr. David Eagleman giving a broad overview of the field of Neuroscience and Law. Citing classic examples such as Phineas Gage and Charles Whitman, Dr. Eagleman showed how these issues at the intersection of neuroscience and law have been confronting us for years; however, only recently has the technology and scientific knowledge presented the possibility of addressing them. The introduction was not without controversy as Dr. Eagleman also presented some paradigm-shifting and radical ideas such as his "Law of Sufficient Automatism" (discussed in Dr. Eagleman's upcoming book Dethronement) and the notion of the "Society of Mind" (which views the nervous system as competing, semi-autonomous areas of activity whose competition results in our behavior).

The next speech was by Dr. J. Ray Hays on the topic of scientific evidence and expert witnesses. Dr. Hays discussed Hugo Munsterberg's classic work, On the Witness Stand, which still illuminates the problems facing expert witnesses and scientific evidence. The speech moved into substantive areas of law by discussing the law governing the admission of expert testimony-mainly, Federal Rule of Evidence 702 and the Daubert standard. Dr. Hays commented at length about the distance that neuroscience will have to cover and the issues it will have to face in trying to become accepted by the law, including the issue of causation and the legal standards for evidence and proof. For lawyers, Dr. Hays stated that the biggest challenge will be to understand both the potential and the limitation of the new technologies.

Dr. Amy McGuire spoke about the similarities between genetics and neuroscience as they intersect with the law. She discussed the regulations of human subject research, and the controversial nature of trying to understand human behavior through deterministic lenses. Finally, she strongly advocated that researchers consider the ethical and social implications of the work they do and recommended that there be increased oversight of such research to ensure that social implications are considered.

Next, Dr. Joseph Kass spoke about capacity issues, decision-making, and the prefrontal cortex. He discussed how decision-making (setting a goal, evaluating options, selecting an option, implementing the decisions, and monitoring) required high-level cognitive capacities such as executive functioning and emotional regulation. He discussed how the various areas of the prefrontal cortex have been implicated in these capacities and how damage to these areas resulted in deficits in these capacities.

Daniel Goldberg spoke about the issue of memory fingerprinting and the application of the undue prejudice standard from Rule 403 of the Federal Rules of Evidence. One of the most interesting concepts he discussed was the "neurofallacy" or the "fallacy of neurorealism"-the notion that an fMRI image literally captures the phenomenon being measured. Daniel was followed by Dr. Amir Halevy who discussed the issue of brain death and the Uniform Determination of Death Act. The final talk was given by Dr. William Winslade on the topic of sex offenders and chemical castration in Texas. Citing very thought-provoking examples, Dr. Winslade discussed how physiology, criminal behavior, and legal policy can intertwine.

At the end of the afternoon, there was an interesting dialogue between the audience and the speakers. Audience members representing groups ranging from the Department of Justice and the District Attorneys Office to medical students and international guests questioned the speakers on a variety of topics including criminal responsibility, child molestation, and American prison population statistics relative to other developed nations. Hands were still up in the air when Dr. Eagleman had to bring the conference to a close indicating that many questions still remain to be explored in the future.

The conference was taped and will be available online soon at www.neulaw.org. Also, on a similar note, the Neuroscience and Law Project will be hosting their annual conference in Santa Barbara this weekend.

The Intersections Between Neuroscience and Law

Jyotpal Singh — Mon, 12 May 2008 16:04:45 +0000

Around the middle of the twentieth century, B.F. Skinner defined the human "self" as an organized system of behavior and defined "behavior" as everything that an organism does including thinking, feeling, and acting. Law, as a human institution, is a system for governing human behavior-we must do or refrain from doing certain things or suffer socially-ordained and governmentally-administered consequences. The brain is the organ that governs individual behavior-all thinking, feeling and acting is derived from activity in the brain and nervous system. Thus, at their very core, law and neuroscience are intimately interwoven because they are concerned with human behavior.

Culpability

Of all the intersections between neuroscience and law, the issue of culpability, or the level of "intentionality" in criminal law (known as "mens rea") or in civil law (often called "scienter," especially in securities law) is one of the more difficult areas and relates to deep and fundamental questions of human behavior. In essence, the debate extends to the very beginning of human thought: Do we have free will (and, if so, to what extent?) or is our volition and intentionality an illusion (or, perhaps, is there some other alternative that we have not fully thought through yet)?

What do we know? A minor alteration in a chemical in the brain can drastically alter personality, behavior and subjective experience. A small tumor or minor damage to a brain area can have the same effect. This means that when the brain is physically altered, the person is mentally altered. Thus, the physical and the mental appear to be the same. Further, the brain is incredibly complex-it contains billions of neurons and trillions of interconnections between them and most of the brain's activity occurs below the level of conscious awareness. In other words, you are not aware of most of what is going on in your own head. Thus, your mind and your brain are the same thing, and you do not entirely consciously control or consciously know what you are doing or why.

If this is true, then to what extent is someone who "chooses" to commit a crime or "chooses" to enter into a fraudulent transaction culpable? The law assumes that people are conscious, intentional and rational actors and are practical reasoners-we can choose how we act. Yet, neuroscience can definitively show how pathologies-especially damage or underdevelopment-can drastically reduce the ability of a person to make decisions and control their impulses. What does this mean for our notions of culpability? We already adjust our assumptions about culpability dependent on mental and physical illness, age, or intoxication. In what ways does the neuroscience evidence indicate that we need to make further adjustments to our notions and assumptions about culpability? This is the first major area in which neuroscience and law intersect.

Competence

A very important concept in law, especially in civil law such as torts and contracts, is the notion of competence. Individuals must be competent to enter into agreements-they have the mental capacity to understand what they are doing. Just as with culpability, the law already recognizes that not everyone is competent. For example, minors, the mentally-handicapped, and people who are intoxicated, are recognized as lacking the competence to enter into many types of agreements; however, in many cases, competency is a core issue such as when an elderly person is duped into a secondary mortgage. Can neuroscience help make these competency evaluations? Further, can neuroscience evidence help inform the legal policies regarding competency in a more general way?

Prediction of Criminal Behavior

Currently, we use various methods for determining whether a criminal is likely to recidivate when they are being initially sentenced or being considered for parole. These methods range from advanced actuarial tests based upon psychological and behavioral assessments to the "gut feelings" of the men and women who make these decisions. The problem is that neither one seems to work very well. Thus, we are currently trying to predict criminal behavior with crude, ineffective tools. If we are going to try to predict criminal behavior, shouldn't we try to use the most advanced and accurate tools we have at our disposal in the interests of justice and fairness? Neuroscience may be able to serve as an addition to the tools we already use to help us refine our assessments of the probability of criminal recidivism.

Rehabilitation of Criminals

Many normal people experience impulses and urges: to binge drink and drive, to commit a violent act, to act out sexually in inappropriate ways, etc. Yet, most people who get these impulses do not act upon them. Criminals do. Why? Neuroscience evidence tends to indicate that some brains may be better than other brains at controlling impulses from the more emotional and reactive parts of the brain. Could neuroscience possibly develop techniques and tools that could actually assist people develop these neurological mechanisms for impulse control? If so, could these techniques and tools then be used to help criminals with such issues-for example, violent sex offenders-learn to control their impulses as normal people do?

Juror's Brains and Decision-Making

The American jury system is an established and venerable institution; however, it is also a highly structured group decision-making task involving individuals who, according to psychologists, may be hard-wired for retributivist tendencies, subject to conformity pressures, and may be making very grave and important decisions based upon emotion, bias, or outright prejudice. Can a scientific understanding of the juror decision-making process inform policy and help us understand this powerful legal institution?

Other areas

In the past, neuroscience and law intersected and dealt with many problematic issues including, among others, the definition of brain death and the admissibility of fMRI images in criminal trials. The fields continue to intersect in a variety of other developing areas as well--from the application of neuroscience technology to the problem of lie detection to the new "brain-enhancing" or "smart drugs" that will increasingly become misused and possibly illegally marketed.

Come back again because these are some of the fascinating areas that we will be exploring in future posts.

Welcome to Neurisprudence!

Jyotpal Singh — Mon, 12 May 2008 15:59:23 +0000

Welcome to the new Psychology Today blog "Neurisprudence"! Neurisprudence is a term we came up with to describe our present area of inquiry-the intersection of neuroscience and law, or ‘jurisprudence.' At the Baylor College of Medicine in Houston, Texas, the Initiative on Neuroscience and Law has begun to move forward with research and experiments into this fascinating area, and Psychology Today invited us to share some of our thoughts on this topic. We, the authors of Neurisprudence, are Dr. David Eagleman, neuroscientist and director of the Initiative, and Jyotpal Singh, law student and research fellow with the Initiative. We sincerely thank Psychology Today for this opportunity and thank you, our readers, for giving us your attention. We hope to educate and inform you, but, more importantly, we hope to share the excitement we feel for this intellectual exploration of which we are all now a part.

Our Initiative hopes to address the question of how new discoveries in neuroscience should inform the way we make laws, punish criminals, develop rehabilitation, and conduct civil and criminal trials. Our main objective is to develop experiments and produce data that inform these legal policies; however, here, in this blog, we will do more general questioning and exploring of ideas. There are a multitude of emerging questions in this area including: Is it a legitimate defense to claim that a brain tumor ‘made you do it'? Do the brains of minors have the same decision-making and impulse control as adult brains - and how should that change punishment? Can novel technologies such as brain imaging be leveraged for rehabilitation? How should juries assess responsibility, given that most behaviors are driven by systems of the brain that we cannot control?

In future posts, we will address specific points of intersection between neuroscience and law. We will discuss legal doctrine, scientific evidence, philosophical perspectives, and new developments. We may make announcements about upcoming events and publications, and we will generally try to keep our readers informed about this fascinating area. In our next post, we will give a broad overview of some of the main points where neuroscience and law intersect!