Alan Alda hosted a two part series for PBS entitled Brains on Trial. This two-hour program attempted to demonstrate the various ways that neuroscientific data obtained through brain mapping technology may be used as evidence to inform the court system. To do so, it provided a mock trial in which a young defendant shot an innocent woman in the head during an armed robbery of a convenience store, essentially placing her in a coma.
The first hour focused on the trial that determined the guilt of the defendant. Throughout the episode, neuroscientists were interviewed to explore the effectiveness of brain scans to reveal if someone lies, whether an eyewitness remembers a face, and if a defendant is able to recount the crime scene accurately afterwards.
The second hour focused on the sentencing phase. It examined the effectiveness of neurological mapping to determine the level of blame assigned to the defendant. How responsible is he? In other words, if the brain is hardwired for such deviant behavior, is the person fully responsible for the crime? The episode focused on this idea, and used it as a catalyst in exploring how such technology can inform the court on the emotional and developmental state of a defendant. More specifically, they questioned whether the remorse that is expressed is real, if the development of the brain to ascertain if it has fully matured beyond poor impulsivity should effect whether an adolescent be tried as an adult, as well as examined what part of the judge’s brain is activated when passing sentence.
Several videos were also available on the program’s website in which various legal and neurological experts explored the place of such science in the courts [found here: http://brainsontrial.com].
The series proposed that for the first time the unreachable places of the brain could be unlocked to reveal truth, revelation and ultimately judgment; but it also explored the ethical question, should it be allowed, and is it advanced enough to be effective? As Alda indicated, the program not only explored the science, but what part will it play in justice --or if it really should. The technology was vast, the machinery expensive, the research detailed and at times tedious, and the exploration quite invasive.
It was fascinating.
So, why explore this series for this blog? Aside from the title of the program, the relationship with Art on Trial seems clear—can evidence that reflects neurological functioning be used as mitigating or prosecutorial data? If so, instead of neurological brain mapping, can I substitute drawings and artistic creations?
There has long been a history recounting the relationship between creativity and neuroscience. The recent blog post by Scott Kaufman in Scientific American [that link can be found here] highlights the long debate and examination of the relationship of creativity and brain mapping; i.e., where and when the brain becomes active in the creative response. Underscoring that creativity is a strong proponent of leadership and giftedness, Pfeiffer, in his new book Serving the Gifted: Evidence-Based Clinical and Psychoeducational Practice (2013) and his recent article “Leadership” (2009), emphasized that recent breakthroughs in physiological studies of the brain have provided insights into the relationship between neuroscience and creativity. He reminded us that with the advent of the brain imaging technologies, there have been made clear “important linkages between the brain and the mind”, including how we create and become creative. Taking it to its logical conclusion, this strengthens the relationship between creating art or art making and neurological functioning. While brain imaging can tell us what parts of the brain are activated during creative expression, creative output can inform us what parts of the brain have been used. As Zeki (1999) reminded us “artists are in some sense neurologists, studying the brain with techniques that are unique to them, but studying unknowingly the brain and its organization nevertheless” (p.10).
I confess, I am certainly not an expert when it comes to the relationship between neuroscience and art; yet, many art therapists are. Juliet King in an upcoming publication provided a comprehensive yet succinct review on the development of the relationship between neuroscience and art therapy, drawing on the work of many art therapists that relied on this understanding to explore several neurological disorders (in press). Belkofer and Konopka (2008) relied on EEGs to measure change in brainwave patterns before and after making art, and discovered there was indeed significant change. And what about art-based assessments? Lusebrink indicated in her 2004 article about the relationship between art therapy and the brain:
“[f]urther explorations of the relationship between the processes of art expression and the functions of the brain could benefit from the area of art assessments based on the formal elements of visual expression…these assessments are backed by extensive research…thus providing a solid base for the exploration of the relationship between brain processes and the processes involved in art expression. Another area for exploration concerns the relationship between brain functions involved in emotions and their visual expression…” (p. 134).
And this exploration does indeed endure; the work of art therapists Haas-Cohen, Chapman and Malchiodi [to name just a few] continue to expound upon the relationship between neuroscience and art making. (For additional information on this relationship, there are a number of available sources—feel free to contact me for additional references).
It seems neurological shifts or issues may be reflected in the art that is produced by the artist, and that certain formal elements reflect, almost like a mirror, certain neurological impairments or interferences. My perspective is that art acts as a different type of neurological scan—one that is not nearly as invasive or for that matter, expensive, and that it can provide a longitudinal scan if many artifacts are available.
Ward’s case-- outlined in previous posts-- was that although a psychiatrist and psychologist evaluated and judged him as being mentally incompetent, they only succeeded in taking a snapshot of him at the time he was assessed--- post murder. There was no neurological support for what happened before—nor can a brain scan provide such history. The richness of the case was that we did have well over 100 art pieces, spanning over many years leading up to the crime. This served to demonstrate that there was a presence of a mental illness that can indeed support a mitigation of the ultimate conclusion —that he had a mental illness that was consistently present throughout all those years. So, when Brains on Trial makes a case for using neurological scans as evidence, then support for a mapping of the brain over many years should be that much more justifiable. Although art work over a lengthy period may not always be available, if it is, the art can exhibit change or gradual decompensation. Of course hypothetical cases can lead into moral and ethical considerations; but isn’t art therapy and the assessment of the art much less invasive?
In an interview with Caryn Robbins of Wisdom Digital Media, Alda indicated that what surprised him was that “under the right condition you can be thinking of a picture in your head, while the scanning machine and the computer will be able to print out a rough version…”. Essentially, isn’t that what an artist already does—the art comes out from them, interpreted not by a computer but by the artist himself—in which case it is a purer form of expression? This, in turn can be used as evidence. Once again, the art does not lie [see the first post: “The Trials of Art Therapy: An Introduction”].
Of course, as this program stressed, it’s not enough to demonstrate the strength of neurological technology but rather is such information admissible, and should it be? What is the relationship between neuroscience and law? The program did a wonderful job outlining the various ways that perhaps, in the near future, neurological brain mapping may be instrumental in court through its ability to: ascertain lying, memory recall, facial and spatial recognition, and assessment of emotional remorse or sense of responsibility. However, it left out a less invasive and less expensive form of mapping neurological processes—drawing. Alda reminded the viewers that while such technological abilities seem remarkable, it might be a long ways away from being allowed in court as evidence. Yet in several cases the evaluation of artistic byproducts—in essence, a true reflection of the neurological and emotional functions of a defendant’s brain—has indeed been allowed as evidence, and has been deemed not only appropriate but also informative when a judge has passed sentence.
While Alda indicated that evidence derived from neurological mapping via complex and invasive technology is several years away from being allowed in court, I argue that neurological imaging via mapping has been allowed in court, and was done so by allowing art to be used as evidence in a murder trial.
Now, despite my biases, idealisms and naiveté, I recognize that art assessments are not an exact science; however, it seems through this program that brain imaging and mapping are not as well. Imagine the additional information and validation that can be obtained if research on the neurological revelations on art production was as funded as the greatly more expensive—and intrusive—neurological technologies and experiments displayed in this series.
Simply put, through a modest, quicker, less invasive, yet effective, procedure, the mind is revealed through visual reproduction—and the court has already recognized its value.
Coming up: The next post will focus on how exactly the court determines who can testify and what is admissible in a trial, so stay tuned...it will be uploaded within a few days…
Belkofer, C.M., Konopka, L. (2008). Conducting art therapy research using Quantitative EEG measures. Art Therapy: Journal of the American Art Therapy Association, 25(2), 56-63.
Gussak, D. Art on trial: Art therapy in capital murder cases. New York, NY: Columbia University Press.
King, J. (in press). Art therapy and neuroscience (working title). In D. Gussak & M. Rosal (Eds.). Wiley-Blackwell Handbook of Art Therapy. Oxford, Great Britain: Wiley Blackwell Publishing.
Lusebrink, V. B. (2004). Art therapy and the brain: An attempt to understand the underlying processes of art expression in therapy. Art Therapy: Journal of the American Art Therapy Association, 21(3), 125-135.
Pfeiffer, S.I. (2013). Serving the gifted: Evidence-based clinical and psychoeducational practice. New York, NY: Routledge.
Pfeiffer, S. I. (2009). Leadership. In B. Kerr (Ed.). Encyclopedia of Giftedness, Creativity,a nd Talent (pp.520-523). Thousand Oaks, CA: Sage Publications
Zeki, S. (1999). Inner vision: An exploration of art and the brain. New York: Oxford University Press