ABSTRACT: Rapid advances in neuroscience have raised hopes in law, perhaps inevitably, that new techniques for revealing brain function may help to answer perennial questions about the sources, limits, and implications of human behavior, mental states, and psychology. As a consequence, lawyers have sharply increased proffers of neuroscientific evidence in both civil and criminal litigation, and have also invoked neuroscience as relevant to many doctrinal and policy reforms. These new developments make it essential for just legal systems to evaluate and separate legitimate from illegitimate uses of neuroscience. As part of that effort, this forthcoming essay identifies and illustrates seven distinct contexts in which neuroscience – skeptically evaluated but also carefully understood – can be useful to law. The essay is based on a talk delivered at The Vatican, Pontifical Academy of Sciences, November 2012.

Source: Jones, Owen D., Seven Ways Neuroscience Aids Law (June 15, 2013). Neurosciences and the Human Person: New Perspectives on Human Activities (A. Battro, S. Dehaene & W. Singer, eds.) Scripta Varia 121, Pontifical Academy of Sciences, Vatican City, 2013, Forthcoming; Vanderbilt Public Law Research Paper No. 13-28. Available at SSRN: http://ssrn.com/abstract=2280500.

ABSTRACT: Will brain science be used by the government to access the most private of spaces — our minds — against our wills? Such scientific tools would have tremendous privacy implications if the government suddenly used brain science to more effectively read minds during police interrogations, criminal trials, and even routine traffic stops. Pundits and scholars alike have thus explored the constitutional protections that citizens, defendants, and witnesses would require to be safe from such mind searching.

Future-oriented thinking about where brain science may lead us can make for great entertainment and can also be useful for forward-thinking policy development. But only to a point. In this Article, I reconsider these concerns about the use of brain science to infer mental functioning. The primary message of this Article is straightforward: “Don’t panic!” Current constitutional protections are sufficiently nimble to allow for protection against involuntary government machine-aided neuroimaging mind reading. The chief challenge emerging from advances in brain science is not the insidious collection of brain data, but how brain data is (mis)used and (mis)interpreted in legal and policy settings by the government and private actors alike.

The Article proceeds in five parts. Part I reviews the use of neuroscientific information in legal settings generally, discussing both the recent rise of neurolaw as well as an often overlooked history of brain science and law that stretches back decades. Part II evaluates concerns about mental privacy and argues for distinguishing between the inferences to be drawn from the data and the methods by which the data is collected. Part III assesses current neuroscience techniques for lie detection and mind reading. Part IV then evaluates the relevant legal protections available in the criminal justice system. I argue that the weight of scholarly opinion is correct: The Fourth Amendment and Fifth Amendment likely both provide protections against involuntary use of machine-aided neuroimaging mind reading evidence. Part V explores other possible machine-aided neuroimaging mind reading contexts where these protections might not apply in the same way. The Article then briefly concludes.

Source: 36 Harvard Journal of Law and Public Policy 653-713 (2013). By Francis X. Shen.

Read full paper at Social Science Research Network or the Harvard Journal of Law and Public Policy.

Writing on WBUR’s “Cognoscenti” blog, retired judge, Harvard Law Professor, and CLBB faculty member Nancy Gertner warns of the difficulty—and importance—of finding an impartial jury for the high-profile Whitey Bulger trial.

Jury selection for the trial began this week in Boston; opening statements from prosecutors and defense are expected Wednesday, June 10.

U.S. District Judge Denise Casper told a first pool of 225 potential jurors that they would not be excluded simply for having heard or read something about the case—restrictions that would be very difficult to meet given what Gertner calls the “saturation publicity” the case has received. Rather, the court will look for jurors they believe capable of putting aside what they’ve heard and relying on what they learn in the courtroom. Two additional pools of 225 potential jurors were also to be brought in, and all were to fill out lengthy questionnaires; a selection will also be questioned individually. Twelve regular jurors and six alternates will be chosen.

Writing for WBUR, Gertner emphasized the importance of private, rather than group questioning.

“The only technique in our arsenal,” Gertner writes, “is to ask individual questions of individual jurors as if you really want to know the answer, under circumstances maximizing their candor. What do you know of the case? How closely have you followed it? What have you read? What details do you remember?”

Bulger, the reputed former leader of the Winter Hill Gang, is accused of a long list of crimes, including participating in 19 killings. Authorities say he committed the crimes while he was an FBI informant. Now 83, Bulger became one of the nation’s most wanted, and most notorious, fugitives after fleeing Boston in 1994. He was captured in Santa Monica, California, in 2011.

Gertner also joined WBUR’s “Morning Edition” to discuss the “extraordinarily difficult process” of vetting potential jurors. Listen below.