The use of neuroscience in the courtroom has a long and controversial history (Baskin, Edersheim, & Price, 2007). Some observers will recall introduction of computerized tomography (CT) scans to support a diagnosis of Schizophrenia at the John Hinckley Jr. trial for his attempted assassination of President Reagan (United States v. Hinckley, 1982). In subsequent years, much has changed in neuroscience and the law. Recent advances in technology and methods for collecting and analyzing imaging data, coupled with decreasing costs and greater availability of training, has resulted in an explosion of neuroscientific research (Rosen & Savoy, 2012). The ability to track fluctuating brain activity (i.e., functional data), as opposed to examining structural or anatomical images, has allowed for research in a wide-array of applied fields.

It is not surprising that techniques that could presumably measure thought patterns, identify lying, detect psychopathology, and assess for violence and impulsivity, incite interest in the legal community (Jones, Wagner, Faigman, & Raichle, 2013). The MacArthur Foundation Research Network on Law and Neuroscience has tracked peer-reviewed publications in the field of neurolaw (application of neurosciences to legal questions). Between 2003 and 2013, the total number of articles skyrocketed from less than 100 to more than 1,100 (Jones et al., 2013). A debate has ensued about the appropriate use of neuroscience research in the courtroom. Many researchers urge strong caution in applying this nascent field to complicated psycho-legal questions (Appelbaum, 2009; Rushing & Langleben, 2011). Continue reading »

After several rounds of motions and appeals looking to delay or prevent incarceration, Anthony D. Marshall, the 89-year-old son of Manhattan billionaire Brooke Astor, has begun a prison sentence for stealing millions of dollars from his mother.

Marshall was convicted in 2009, alongside Astor family lawyer Francis X. Morrissey Jr., of altering his mother’s will to leave himself tens of millions of dollars. Astor, who died in 2007 at the age of 105, was more than 100 at the time and suffering from Alzheimer’s.

The case has raised awareness of both elder abuse and the potential legal complications resulting from Alzheimer’s and dementia—and old age continues to be a theme in the case. Lawyers for Marshall, who suffers from Parkinson’s and heart problems, released a statement lamenting that the octogenarian must serve prison time. “Incarceration will simply make his final days more tortured and undoubtedly fewer in number,” it said.

Read more at the New York Times. 

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.

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.