09/03/2009

Can Bad Science Be Good Evidence?

Duped Frederick Schauer--one of the members of LANP's Governing Board--has recently posted an interesting article on SSRN entitled, "Can Bad Science Be Good Evidence: Lie Detection, Neuroscience, and the Mistaken Conflation of Legal and Scientific Norms" (see here). Given the recent interest in neuroimaging and lie detection, it is a very timely and important piece.  Here is the abstract:

                                         ***

As the capabilities of cognitive neuroscience, in particular functional magnetic resonance imaging (fMRI) 'brain scans,' have become more advanced, some have claimed that fMRI-based lie-detection can and should be used at trials and for other forensic purposes to determine whether witnesses and others are telling the truth. Although some neuroscientists have been at the forefront of promoting such claim, most neuroscientists aggressively resist them, and have argued that the existing research on neuroscience-based lie-detection is deeply flawed in numerous ways. And so these neuroscientists have resisted any attempt to use such methods in litigation, arguing, in effect, that they are the product, so far, of poor science. But although it is probably true that the existing studies have serious problems of validity when measured by the standards of science, and true as well that the reliability of such methods is significantly lower than their advocates claim, it is nevertheless an error to assume that the distinction between good and bad science, whether as a matter of validity or a matter of reliability, should be dispositive for law. Law is not only about putting criminals in jail, and once we understand that numerous uses of evidence in various contexts in the legal system require a degree of probative value far short of proof beyond a reasonable doubt, we can understand the larger point that legal and scientific norms and standards are different. Some examples of good science may still not be good enough for some legal purposes, and, conversely, some examples of bad science my, in some contexts, still be good enough for some legal purposes.

***

Adam Kolber already has a nice and concise commentary on Schauer's paper over at the Neuroethics and Law Blog.  So, you should check that out as well.

Sep 3, 2009 1:28:51 PM | Criminal Law, Lie Detection, Neuroethics, Neuroimaging, Neurolaw, Neuroscience

The comments to this entry are closed.

NEXT POST
The Secret Politics of the Compatibilist Criminal Law I recently stumbled upon a really provocative paper by Anders Kaye entitled, "The Secret Politics of the Compatibilist Criminal Law." Given that one of the key issues addressed in the paper is whether compatibilist theories of free will--which focus very heavily on dispositional traits and conscious mental states--can accommodate situational forces that are criminogenic (e.g., poverty and early childhood abuse). According to Kaye, compatibilist theories of free will and responsibility have been used by some criminal theorists to shield the criminal law from developments in behavioral science, criminology, etc. that might otherwise lead to a less punitive justice system as...
PREVIOUS POST
The Singularity Cometh? There is an interesting documentary being filmed by Doug Wolens entitled The Singularity. The movie will contain interviews with folks ranging from neuroscientist Christoph Koch and philosopher David Chalmers to inventor Ray Kurzweil and CIA Director Leon Panetta. Needless to say, it ought to be an interesting film to watch. In the event that you wanted a better idea of what people who talk about "The Singularity" have in mind, you should hop over to The Singularity Institute for Artificial Intelligence. For now, here is an excerpt from their attempt to define the concept: The Singularity is the technological creation...