In “The selective allure of neuroscience and its implications for the courtroom,” a recent feature on The Jury Expert, Adam Shniderman wrote about two recent studies done to examine the reasoning, discrediting tendencies, and preexisting beliefs that inform in lay evaluations of neuroscience. These studies, done by Shniderman and Nicholas Schurich (2014) were conducted on two highly politically and emotionally charged issues – the death penalty and abortion. They concluded that “the biggest determinant of the impact of neuroscientific information on an individual appears to be the individual’s prior attitude about the topic. Thus, neuroscience appears to have a selective, rather than a universally seductive, allure.”
In Selective Allure of Neuroscience and Its Implications for the Courtroom, Shniderman adds to an already long list of reasons for why attorneys and trial consultants should be cautious in using neuroscientific evidence in legal proceedings. Scurich and Shniderman (2014) found that individuals evaluated the scientific validity of neuroscientific evidence based on preexisting beliefs. At first glance, this study might seem like another example of scientists proving a well-known concept that juries and judges bring their individual experiences into the courtroom. In fact, voir dire is premised on identifying individuals with particular types of beliefs that may produce a particular type of verdict. However, on closer examination, the findings from this study highlight a different point – introduction of neuroscientific research may backfire, or in the very least not produce the intended results. And, not knowing how the jury or a judge will interpret a particular type of evidence should be disconcerting to attorneys, legal consultants and experts.
Scurich and Shniderman (2014) acknowledge a significant limitation of the study. The authors asked respondents questions about highly polarizing issues – death penalty and abortion. It is unclear whether similar effects, of interpreting the validity of evidence through a prism of motivated reasoning, will hold for less emotionally charged issues. A related point that was not addressed by the study is whether the same pattern would emerge if the fact finders were offered with opposing expert opinions. In real life settings, juries and judges are unlikely to hear scientific evidence that is unopposed or offered without cross-examination. It is possible that motivated reasoning would be diminished somewhat through legal techniques specifically designed to offset potential bias by the fact finder. Researchers will need to address this issue before conclusions about the impact of neuroscientific evidence in the courtroom can be made.
Shniderman notes that concerns about the deleterious effects of neuroscience on juror decision-making have not borne out. Further, he notes that the insights promised by neuroscientists in changing how judges and juries think about free will, and thereby decide about criminal culpability, have not occurred. I disagree that either of these conclusions can be made at this time. First, as noted above, the research we have on juror decision-making is limited and as described in a previous post (see Pivovarova and Brodsky comment here) focuses on specific neuroscientific features. Second, the impact of neuroscience is difficult to assess, in part because there are legal barriers to introducing such evidence and because the field is relatively new compared to other scientific and social fields. Whether such changes will ever occur is unclear, but there is little doubt that neuroscience has allowed us to understand behavior in unique ways. Dismissing the impact of neuroscience on the fact finder too early is just as problematic as giving it too much credence. As this study highlights we have much to learn about how juries and judges interpret neuroscientific evidence.