News and Commentary Archive

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


The Center for Law, Brain & Behavior puts the most accurate and actionable neuroscience in the hands of judges, lawyers, policymakers and journalists—people who shape the standards and practices of our legal system and affect its impact on people’s lives. We work to make the legal system more effective and more just for all those affected by the law.

A New Way to Reform the Judicial System

By Douglas Starr | The New Yorker | March 31, 2015

Last year, the district attorney’s office in Montgomery County, Pennsylvania, blew a case. The chairman of the county’s Republican Party, Robert J. Kerns, had been accused of rape by a woman who worked at his law firm. The woman said that Kerns had offered her a ride after an alcohol-fuelled office party. Along the way, she said, he gave her wine and raped her in his Mercedes, and then again in her home. Hospital reports showed bruising consistent with a sexual assault, and DNA on the woman’s underwear was consistent with Kerns’s profile. A key piece of evidence was a urine test apparently showing the presence of Zolpidem, commonly known as Ambien. Prosecutors secured a grand-jury indictment on more than a dozen criminal counts, including rape and aggravated indecent assault. Afterward, they held a press conference.

Several months later, a toxicologist hired by Kerns’s defense took a closer look at the lab report. Although the word “Zolpidem” appeared, what the document indicated was that the test had detected “less than” five nanograms per milliliter, which in this case was zero. Kerns’s lawyer got in touch with the prosecuting attorneys, who were horrified to realize that they had misinterpreted the findings—a rookie mistake.

“It was a huge embarrassment,” Risa Ferman, Montgomery County’s district attorney, told me. She and her staff had plenty of evidence that Kerns had committed a sexual assault, but, because the drugging was written into the indictment, they had to drop charges and refer the case to the Commonwealth’s Attorney General’s office. A newspaper called the incident a “fiasco.” Continue reading »

WATCH – “Does Brain Difference Affect Legal & Moral Responsibility?”

Click to view event poster.

Click to view event poster.

Brains create behavior. Yet we hold people, not brains, morally and legally responsible for their actions. Under what conditions could – or should – brain disorder affect the way which we assign moral and legal responsibility to a person? 

In this conversation among a neuroscientist who studies moral judgment, a forensic psychiatrist, and a law professor, we explored three cases that highlight the relationship between brain disorder, law-breaking, and norms relating to responsibility. Continue reading »

Judges Need to Set a Higher Standard for Forensic Evidence

By Nancy Gertner | The New York Times | March 30, 2015

Hon. Nancy Gertner, CLBB faculty member, former federal judge and Professor at Harvard Law School, participated in a dialogue on how forensic science can be made more dependable and professional in The New York Times Room for Debate column. Read the debate, “Judging Forensic Science,” here.

The National Commission on Forensic Science was formed in response to widespread concerns that forensic evidence that lacked any meaningful scientific basis was being regularly permitted in trials. The concerns were not just about the “expert” witnesses, but about the judges who, according to the National Academy of Sciences report that led to the commission’s creation, have been “utterly ineffective” in assessing the quality of research behind the evidence.

The National Academy of Sciences found that judges have been “utterly ineffective” in assessing the quality of research behind scientific evidence.

The evidence used to win convictions has often been based on bad science. In about half of the cases in which D.N.A. evidence led to exoneration, invalid or improper forensic science contributed to the wrongful conviction.

Appeals courts almost invariably affirm trial judges’ admission of evidence that has been challenged, unless the judge abused his or her discretion by, in the words of one ruling, making a decision that “no conscientious judge, acting intelligently, could honestly have taken.” That’s hardly a strict standard.

Sadly, judges are more likely to reject scientific evidence in civil cases, in which both sides can have substantial resources, and in which there is a discovery process that enables each side to find out about the other’s case far in advance of trial. In an arson case I presided over as a judge, I could find no criminal cases in which there had been a challenge to the admissibility of evidence from dogs who supposedly could sniff out fire-spreading fuels.

The national commission is doing more than exhorting judges to do the right thing, which sadly did not get very far. It is bringing together representatives of the Department of Justice, the National Institute of Standards and Technology, defense lawyers and experts to set standards for judges, and prosecutors, to follow. If the Justice Department doesn’t try to admit evidence of questionable validity, then state and local prosecutors may follow suit. That could go a long in solving the problems with forensic science.

Read Judge Gertner’s post originally published in The New York Times.

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.

Dzokhar Tsarnaev: Adolescent or Adult?

By Laurence Steinberg | The Boston Globe | March 30, 2015

As the trial of Dzhokhar Tsarnaev, the accused Boston Marathon bomber, moves into its defense phase, his attorneys likely will lean heavily on the science of adolescent development to argue that their client should be spared the death penalty. Judy Clarke, Tsarnaev’s lead defense attorney, has already made several references about Tsarnaev’s youthfulness and susceptibility to the influence of his older brother.

Technically, the proceeding is about determining the appropriate punishment for Tsarnaev, who has admitted his involvement in the attack. But the trial is also a referendum on how we view and define adolescence. Continue reading »