News and Commentary Archive

Explore recent scientific discoveries and news as well as CLBB events, commentary, and press.

Mission

The speed of technology in neuroscience as it impacts ethical and just decisions in the legal system needs to be understood by lawyers, judges, public policy makers, and the general public. The Massachusetts General Hospital Center for Law, Brain, and Behavior is an academic and professional resource for the education, research, and understanding of neuroscience and the law. Read more

Broad Consent for Research With Biological Samples: Workshop Conclusions

By Christine Grady, Lisa Eckstein, Ben Berkman, Dan Brock, Robert Cook-Deegan, Stephanie M. Fullerton, Hank Greely, Mats G. Hansson, Sara Hull, Scott Kim, Bernie Lo, Rebecca Pentz, Laura Rodriguez, Carol Weil, Benjamin S. Wilfond, and David Wendler | The American Journal of Bioethics | August 25, 2015

Abstract:

Different types of consent are used to obtain human biospecimens for future research. This variation has resulted in confusion regarding what research is permitted, inadvertent constraints on future research, and research proceeding without consent. The National Institutes of Health (NIH) Clinical Center’s Department of Bioethics held a workshop to consider the ethical acceptability of addressing these concerns by using broad consent for future research on stored biospecimens. Multiple bioethics scholars, who have written on these issues, discussed the reasons for consent, the range of consent strategies, and gaps in our understanding, and concluded with a proposal for broad initial consent coupled with oversight and, when feasible, ongoing provision of information to donors. This article describes areas of agreement and areas that need more research and dialogue. Given recent proposed changes to the Common Rule, and new guidance regarding storing and sharing data and samples, this is an important and timely topic.

Read the full article here.

How Courts Use Neuroscience

By Francie Diep | Pacific Standard | March 30, 2015

In 2009, officials in Lorain County, Ohio, sued a single mother for permanent custody of her 10- and 11-year-old children, claiming that the mother neglected the children and her boyfriends sexually abused them. Although social workers had provided the mother with parenting classes, she was incapable of doing a better job, the county maintained. Among the evidence officials provided: the fact that when she was 14, the mother had been in a car accident that left her mentally impaired and with a reported IQ of 70.*

The Lorain family case is just one of more than 1,500 United States judicial opinions given between 2007 and 2012 that cite brain science in some way. As brain-measuring technologies have improved, neuroscience arguments have increasingly made their way into the U.S. judicial system, as a few observers have noted. A new report, published last week by the U.S. Presidential Commission for the Study of Bioethical Issues, tallies up specific numbers about how and when neuroscience shows up in court cases. Here are some highlights:

  • Between 2007 and 2012, the number of judicial opinions citing neuroscience doubled.
  • Among the cases that invoked neuroscience, about 40 percent were for capital murder.
  • In the majority of cases, lawyers tried to use brain scans and other evidence to argue for lesser punishments. For example, they could use evidence of brain damage to argue a defendant wasn’t able to control or plan what he did.
  • In 2012, five percent of murder trials and 25 percent of death penalty trials invoked neuroscience to argue for less severe punishments.
  • Neuroscience doesn’t always have to help defendants, however. Prosecutors can use neuroscience evidence to argue that somebody is naturally aggressive or dangerous and needs more restrictive punishment. Indeed, neuroscience worked against the Lorain County mother who had wanted to keep her children.
  • Neuroscience can even work against lawyers. In the past, courts have found attorneys to be ineffective as counsel when they failed to “investigate a reasonable likelihood of a brain abnormality” for clients facing the death sentence.

The rise in neuroscience in courts warrants some caution. The science for many claims—such as the ability to predict whether someone will commit a crime again in the future, or to objectively measure pain—is still uncertain. At the same time, scientific-looking evidence holds strong sway over judges and juries, studies show. So it’s important to avoid hype, and to make sure judges are trained in neuroscience. The good news is that a few organizations already run neuroscience seminars for lawyers and judges, like the American Association for the Advancement of Science and the MacArthur Foundation.

While most news stories—understandably—highlight the dangers of misapplied neuroscience, brain research has done a lot of good for courts, too. Emerging science on how long it takes for teens’ brains to mature has played a huge role in making it so that courts now can’t sentence children under 18 to the death penalty, or to life in prison without parole. Brain-scanning studies have also helped reveal the implicit biases that everybody has, and often lead to people of color getting harsher punishments than white people for the same crimes. Bringing those biases to light with science is the first step to mitigating them.

Read the original article in Pacific Standard. Review the Presidential Commission’s report, Gray Matters, here.

The Case for Pain Neuroimaging in the Courtroom: Lessons from Deception Detection

Natalie Salmanowicz | The Journal of Law and the Biosciences | 9 January 2015

From an observer’s perspective, pain is a fairly nebulous concept—it is not externally visible, its cause is not obvious, and perceptions of its intensity are mainly subjective. If difficulties in understanding the source and degree of pain are troublesome in contexts requiring social empathy, they are especially problematic in the legal setting. Tort law applies to both acute and chronic pain cases, but the lack of objective measures demands high thresholds of proof. However, recent developments in pain neuroimaging may clarify some of these inherent uncertainties, as studies purport detection of pain on an individual level. In analyzing the scientific and legal barriers of utilizing pain neuroimaging in court, it is prudent to discuss neuroimaging for deception, a topic that has garnered significant controversy due to premature attempts at introduction in the courtroom. Through comparing and contrasting the two applications of neuroimaging to the legal setting, this paper argues that the nature of tort law, the distinct features of pain, and the reduced vulnerability to countermeasures distinguish pain neuroimaging in a promising way. This paper further contends that the mistakes and lessons involving deception detection are essential to consider for pain neuroimaging to have a meaningful future in court.

Read the full paper here.

CLBB Director of Law & Ethics to lead HMS Master’s Program in Bioethics

As of fall 2014, CLBB Director of Law & Ethics Rebecca W. Brendel, JD, MD, will join the Harvard Medical School Center for Bioethics to lead the development of a new Master’s Program in Bioethics. Originally established as the Division of Medical Ethics, The Center was rebranded in spring 2014 to serve as a convener for faculty who will collaborate with the ethics services at the HMS affiliates and with ethics programs at schools throughout Harvard University. Dr. Brendel will develop and then lead the new Master’s Program in Bioethics at HMS.

The Master of Bioethics Degree, beginning fall 2015, will combine resources from the Center for Bioethics, Harvard teaching hospitals, and departments across the University in a one-year full time course of study and is open to working professionals holding a terminal degree in any discipline. A core group of applicants is expected from medicine, law, nursing, public health, social work, public policy, scientific and biotechnology research, journalism, and business.

Rebecca W. Brendel

Dr. Brendel is Assistant Professor of Psychiatry at Harvard Medical School and Director of Law & Ethics at CLBB. An expert consult-liaison psychiatrist and ethicist, Dr. Brendel has published widely on issues including voluntary psychiatric hospitalization (2014), evaluation of capacity to appoint a healthcare proxy (2013), and legal issues including mandatory reporting and informed consent (2010).

Dr. Brendel will be stepping down as Clinical Director of the Home Base Program — a collaboration of the Red Sox Foundation and MGH — in order to step into the new role at the Center for Bioethics.  Continue reading »

Law and neuroscience: recommendations submitted to the President’s Bioethics Commission

Owen D. Jones, Richard J. Bonnie, B. J. Casey, Andre Davis, David L. Faigman, Morris Hoffman, Read Montague, Stephen J. Morse, Marcus E. Raichle, Jennifer A. Richeson, Elizabeth Scott, Laurence Steinberg, Kim Taylor-Thompson, Anthony Wagner and Gideon Yaffe | Journal of the Law and Biosciences | June 2014

It has become increasingly clear that implications for criminal justice—both negative and positive—emerge from the rapid, important, and challenging developments in cognitive neuroscience, the study of how the brain thinks. Two examples will illustrate.

First, lawyers are ever more frequently bringing neuroscientific evidence into the courtroom, often in the forms of testimony about, and graphic images of, human brains. This trend has produced many new challenges for judges as they attempt to provide fair rulings on the admissibility of such technical evidence, consider its proper interpretation, and assess whether the probative value of such testimony may be outweighed by its potentially prejudicial effect on juror deliberation, and hence on trial outcomes.

Second, the fast expansion of new imaging and analytic techniques has generated the hope that neuroscience, properly deployed, might help to further the goals of criminal justice. For example, given that the criminal justice system already makes predictions about future antisocial conduct for purposes of sentencing and parole, some believe that neural markers might eventually improve the accuracy of those predictions. Continue reading »