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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.

These two major effects—increased introduction of neuroscientific evidence and expanding optimism about the prospects for law-relevant neuroscientific insights—arise from recent technological developments that represent not just a step, but rather a leap forward in understanding both brain structure and brain function. Until recently, structure and function were studied quite separately—inasmuch as it was hard to study structure without a dead brain, and hard to study function with one. But advances in x-ray technologies opened the initial window on the structure of living brain tissue. And subsequent advances in techniques (such as functional magnetic resonance imaging), now enable non-invasive brain imaging that reveals not only a person’s brain structure, but also how a person’s brain is actually functioning as it engages in certain mental processes.

Combining these new non-invasive techniques with behavioral measures, scientists have made impressive progress toward learning such things as: the brain activity associated with perception, memory, and thought; how goals are represented at the neural level; how brain development is related to cognitive capacities; the brain activity associated with goal-directed behavior; and the relationships among brain states, decision-making processes, and mental health. Research has demonstrated the power of these techniques to aid efforts as disparate as identifying individuals who may be prone to risky decision-making, distinguishing (in some controlled contexts) between those who are lying and those who are telling the truth, understanding how brain impairments can change behaviors, and learning in greater detail the brain activity that is associated with individual differences in empathy, moral reasoning, and the ability to understand the thoughts of others.

Although the legal system is already grappling with how to engage responsibly with a flood of new neuroscience studies, it remains unclear how this relationship will develop. For example, it is unclear whether neuroscientific capabilities and neuroscientific evidence that lawyers are already bringing into the courtroom are more likely to aid or to hinder the proper administration of criminal justice. And it is unclear how the intersection of different technologies, analytic methods, and legal contexts affect the probabilities of advancing or impeding the pursuit of a maximally fair, rational, and effective criminal justice system.

Amidst this uncertainty, however, four things are clear.

Some notable trial successes, attributable to brain-based evidence, are likely to accelerate further the already-increasing efforts by lawyers to introduce neuroscience into criminal proceedings.

The current engagement of the criminal justice system with now arriving neuroscience is messy, unsystematized, undertheorized, underinvestigated, and—if left unattended—likely to get worse.

Given the high stakes in criminal justice—fairness, safety, property, liberty, and life—it is vitally important that the criminal justice system develop ways to engage responsibly and usefully with the new neuroscience.

If properly deployed and understood, modern neuroscience technologies may aid law’s goals by providing useful insights on important and perennial problems that confront the criminal justice system.

From these observations two conclusions emerge. First, the criminal justice system needs guidance on approaches for distinguishing, context by context, legitimate from illegitimate uses of neuroscience. Evidentiary rulings will often be based on misinformation, misimpression, or intuition until better information, responsive to the legal system’s acute needs, is developed, available, and more broadly disseminated.

Second, the criminal justice system needs interdisciplinary work and research—partnering scholars and practitioners within both law and neuroscience—to evaluate and pursue opportunities to further the fair and effective administration of criminal justice through careful incorporation of neuroscientific insights.

Taking note of rapid neuroscientific advances, President Obama recently charged his Bioethics Commission to ‘identify proactively a set of core ethical standards’ in the neuroscience domain. And, in light of the intersection of neuroscience with criminal justice specifically, President Obama charged the Commission to consider implications ‘relating to … the appropriate use of neuroscience in the criminal-justice system’.

The MacArthur Foundation Research Network on Law and Neuroscience (the ‘Research Network’) is an interdisciplinary collaborative initiative supported by the John D. and Catherine T. MacArthur Foundation and is headquartered at Vanderbilt University since 2010. The Research Network addresses a focused set of closely related problems at the intersection of neuroscience and criminal justice, such as: 1) investigating law-relevant mental states of, and decision-making processes in, defendants, witnesses, jurors, and judges; 2) investigating in adolescents the relationship between brain development, cognitive capacities, and decision-making; and 3) assessing how best to draw inferences about individuals from group-based neuroscientific data. The aims of our Research Network are to help the legal system avoid misuse of neuroscientific evidence in criminal law contexts, and to explore ways to deploy neuroscientific insights to improve the fairness and effectiveness of the criminal justice system.

Appearing below is our consensus statement, including 16 specific recommendations, submitted in answer to the Bioethics Commission’s call for comments, in light of President Obama’s charge.

Read the full paper here.