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.

On April 25th, 2013, CLBB will host an evening of discussion with experts from different disciplines to understand the roots of human behavior, and how neuroscience may be able to inform so-called “Models of the Mind” used in the justice system.

The discussion will be moderated by Dr. Edward Hundert, who in the 50-minute talk here presents a synthesis of ideas about the mind from philosophers, psychiatrists, and neuroscientists in an effort to find a common language through which these diverse views  can contribute insights to one another. Drawing on thinkers from Plato, Kant, Freud, Hegel, and Hume to modern neuroscientists and researchers in artificial intelligence, Dr. Hundert compares the ways various fields interpret the “nature-nurture debate” around the question of how our basic concepts of the world find their way into our brains. He concludes by comparing all of these cognitive theories of knowledge with moral theories of justice, challenging us to appreciate just how interactive the relationship is – in the realms of both knowledge and values – between the human brain and the world we share.

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By John Monterosso and Barry Schwartz | The New York Times | July 27, 2012

Are you responsible for your behavior if your brain “made you do it”?

Often we think not. For example, research now suggests that the brain’s frontal lobes, which are crucial for self-control, are not yet mature in adolescents. This finding has helped shape attitudes about whether young people are fully responsible for their actions. In 2005, when the Supreme Court ruled that the death penalty for juveniles was unconstitutional, its decision explicitly took into consideration that “parts of the brain involved in behavior control continue to mature through late adolescence.”

Similar reasoning is often applied to behavior arising from chemical imbalances in the brain. It is possible, when the facts emerge, that the case of James E. Holmes, the suspect in the Colorado shootings, will spark debate about neurotransmitters and culpability.

Whatever the merit of such cases, it’s worth stressing an important point: as a general matter, it is always true that our brains “made us do it.” Each of our behaviors is always associated with a brain state. If we view every new scientific finding about brain involvement in human behavior as a sign that the behavior was not under the individual’s control, the very notion of responsibility will be threatened. So it is imperative that we think clearly about when brain science frees someone from blame — and when it doesn’t.

Read the full article here.