By Amanda Pustilnik | in The Constitution and the Future of Criminal Justice in America | Cambridge University Press, 2013

Abstract:

The rapid development of neurotechnologies poses novel constitutional issues for criminal law and criminal procedure. These technologies can identify directly from brain waves whether a person is familiar with a stimulus like a face or a weapon, can model blood flow in the brain to indicate whether a person is lying, and can even interfere with brain processes themselves via high-powered magnets to cause a person to be less likely to lie to an investigator. These technologies implicate the constitutional privilege against compelled, self-incriminating speech under the Fifth Amendment and the right to be free of unreasonable search and seizure under the Fourth Amendment of the United States Constitution. Law enforcement use of these technologies will not just require extending existing constitutional doctrine to cover new facts but will challenge these doctrines’ foundations. This short chapter discusses cognitive privacy and liberty under the Fourth and Fifth Amendments, showing how current jurisprudence under both amendments stumbles on limited and limiting distinctions between the body and the mind, the physical and the informational. Brain processes and emanations sit at the juncture of these categories. This chapter proposes a way to transcend these limitations while remaining faithful to precedent, extending these important constitutional protections into a new era of direct access to the brain/mind.

Read the full paper here.

Brainwashed: The Seductive Appeal of Mindless Neuroscience, a new book by psychiatrist Sally Satel and psychologist and professor Scott O. Lilienfeld, argues that current real-world applications of neuroscience may be misguided and even harmful.

“Never before has the brain so vigorously engaged the public imagination,” the authors write in the book’s introduction, a development that both delights and dismays them, as much of what enters the popular discussion, they argue, “offers facile and overly mechanistic explanations for complicated behaviors.”

The book goes on to consider current neuroscientific capabilities, their uses, and, crucially, their limitations.

Satel is a resident scholar at the American Enterprise Institute for Public Policy Research, a lecturer at Yale University School of Medicine, and a practicing psychiatrist. Lilienfeld is a clinical psychologist and professor of psychology at Emory University.

CLBB faculty Steven E. Hyman and Jeffrey Rosen have endorsed Brainwashed: The Seductive Appeal of Mindless Neuroscience:

“Satel and Lilienfeld have produced a remarkably clear and important discussion of what today’s brain science can and cannot deliver for society. As a neuroscientist, I confess that I also enjoyed their persuasive skewering of hucksters whose misuse of technology in the courtroom and elsewhere is potentially damaging not only to justice but also to the public understanding of science.”—Dr. Steven E. Hyman, Director of the Stanley Center for Psychiatric Research at the Broad Institute of MIT and Harvard

“Brainwashed challenges the much-hyped claim that neuroscience will transform everything from marketing to the legal system to our ideas of blameworthiness and free will. Satel and Lilienfeld bring much needed skeptical intelligence to this field, giving neuroscience its due while recognizing its limitations. This is an invaluable contribution to one of our most contested debates about the ability of science to transform society.”—Jeffrey Rosen, Professor of Law, George Washington University and Legal Affairs Editor, The New Republic

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.

On Saturday, April 27, the MacArthur Foundation Research Network on Law and Neuroscience presented “The Future of Law and Neuroscience,” a one-day conference a law and neuroscience curriculum specifically designed for lawyers, at the Conrad Chicago Hotel in Chicago.

CLBB co-director Judith Edersheim moderated a panel titled “Neuroscience in the Courtroom,” featuring Dr. Nita Farahany, Professor of Law, Professor of Genome Sciences & Policy at Duke University, and Professor Hank Greely, Deane F. and Kate Edelman Johnson Professor of Law at Stanford Law School; Director, Center for Law and the Biosciences; Professor (by courtesy) of Genetics, Stanford School of Medicine; Chair, Steering Committee of the Center for Biomedical Ethics; and Director, Stanford Interdisciplinary Group on Neuroscience and Society.

Additional panels include “Brain Basics: Neuroscience and Neuroimaging for Lawyers,” “Neuroscience and Juvenile Justice,” and “Decision Making.”

Topics covered at the conference included: An introduction to cognitive neuroscience (including brain imaging techniques) for lawyers; neuroscience and criminal justice; the developing brain; memory and lie detection; and evidentiary issues surrounding neuroscientific evidence.

The conference is co-sponsored by the American Bar Association, Vanderbilt Law School, and the Gruter Institute for Law and Behavioral Research.

More info here.

A Colorado judge has approved the involuntary administration of a “truth serum” to Aurora shooter James Holmes should he plead not guilty by reason of insanity to charges related to last year’s shooting rampage at a movie theater. Holmes is charged with 166 counts, including murder, attempted murder and other charges for the July 20 incident, which left 12 people dead and 58 wounded by gunfire.

The court has not released the name of the drug to be used, but it would most likely be sodium amobarbital, also known as sodium amytal, or another short-acting barbituate.

Narcoanalytic interviews, as they are known, involve putting the witness on an intravenous drip of the drug until he or she shows signs of impairment such as slurred speech. The interviewer begins with simple questions such as the witness’s name before progressing to questions related to the crime at hand.

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