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.

Brain science is discovering more about the inner workings of the mind that we’ve ever known before—but we’re still a long way from being able to apply those findings toward predicting or even understanding individuals’ behavior, experts say.

Speaking at a discussion on “Neuroscience and the Law” organized by the American Association for the Advancement of Science in Washington, D.C., CLBB faculty member Steven Hyman, Director of the Stanley Center for Psychiatric Research, Broad Institute of Harvard and MIT, emphasized the practical limitations of current research.

In cases of violent crime, for example, even if a brain scan found abnormal activity in a region associated with impulse control or emotion regulation, it would show only correlation, not causation, meaning the information would have little use in court. “I would never tell a parole board to decide whether to release somebody or hold on to somebody based on their brain scan as an individual, because I can’t tell what are the causal factors in that individual,” he said.

“I think we’re going to understand a lot more,” Hyman said. “But it’s really early days.”

Also participating in the April 25 event, the first of a series on “Neuroscience and Society” organized by AAAS in partnership with the Dana Foundation and co-sponsored by the International Neuroethics Society and the MacArthur Foundation Research Network on Law and Neuroscience, were Judge Barbara Rothstein, a visiting U.S. District Judge from the Western District of Washington state and past director of the Federal Judicial Center in Washington, D.C., and Owen D. Jones, director of the MacArthur Foundation Research Network on Law and Neuroscience and a professor of both law and biology at Vanderbilt University.

Read more about “Neuroscience and the Law at the AAAS website. 

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.

As Boston recovers from the bombing of the Boston Marathon, the dramatic pursuit of suspects Tamerlan and Dzhokhar Tsarnaev, and the ultimate capture of the younger brother, Dzhokhar, the next chapter of the story — its legal handling — is only beginning.

Former Federal Judge, current Harvard Law Professor, and CLBB faculty member Nancy Gertner joined fellow Harvard Law Professor Alan Dershowitz on Radio Boston to discuss some of the most pressing issues in the case, including how to ensure a fair trial, whether the death penalty will be sought, and Dzhokhar’s Miranda Rights.

View the criminal complaint and a read a transcript of the legal proceedings from Tuesday’s initial appearance of Tsarnaev before the Court at Radio Boston.