The Law and Neuroscience Blog

NPR Three-peat on Neuroscience and Responsibility

Barbara Hagerty recently ran three pieces for NPR on the relationship between recent advances in science--especially MAOA research and work on psychopathy--and responsibility:

1. "A Neuroscientist Uncovers a Dark Secret"
2. "Inside a Psychopath's Brain"
3. "Can Your Genes Make You Murder?"

As always, happy reading!

Pardo and Patterson on Neurolaw

Michael Pardo and Dennis Patterson have a very interesting forthcoming piece in Neuroethics entitled "Minds, Brains, and Norms."  I was fortunate enough to be asked to provide some invited commentary along with Walter Glannon and Carl Craven.  Pardo and Patterson's lead article is now available for preview (see here) along with some of the invited commentary (see here and here).  Finally, their reply is also available here.  Thanks to Neil Levy and Walter Sinnott-Armstrong for inviting me to play along and for putting together this special issue!

Kiehl, Morse, and Others on Psychopathy and the Law

Radio Health Journal has a series of interesting interviews with Kent Kiehl, Stephen Morse, and others concerning psychopathy, neuroscience, and the law.  Go here to listen to the recording (beginning at the 2 minute mark).

Neural Lie Detection in the News

Here are two recent pieces on neural lie detection:

WIRED:  "Lie Detection Brain Scan May Be Used in [US] Court for First Time."

NeuroKuz: "Lie Detection and Neurolaw: Do Brain Scans Have a Place in the Courtroom."

As always, happy reading!

Video on The Science Network

I just stumbled upon a great collection of videos on The Science Network.  Here are just a few of the ones that caught my eye:

1. Multi-level Brain Modeling (Part 1).
2. Multi-level Brain Modeling (Part 2).
3. Ramachandran on Neurons and Consciousness.
4. Patricia and Paul Churchland on Neurophilosophy.
5. Panel:  This Is Your Brain on the Law.
6. Panel:  Neurolaw and Neuropolitics.

As always, happy viewing!

Neuro-criticisms by Raymond Tallis

Raymond Tallis has made it abundantly clear that he doesn't like the recent trend towards research at the cross-roads of neuroscience and the humanities.  In a series of sensational editorials, he has derided what he uncharitably refers to as "neuro-trash" and "neuro-mythology."  I, for one, think that his arguments tend to shed far more heat than light.  Minimally, Tallis' frequently commits what I have called the fallacy of composition when it comes to the field of neurolaw. As such, I plan to post a few responses in the weeks ahead.  In the meantime, I thought I would provide readers with links to some of the things he has written about the relationship between neuroscience and the humanities in the past few years.

"Neurotrash"

Excerpt:

In summary, such are the limitations of our understanding of the brain, attempting to apply the findings of neuroscience to social policy would be premature, even if this were not wrong in principle. But it is wrong in principle. The fabric of the human world, of the public space that is the arena of our lives, is woven out of explicit shared attention that has been infinitely elaborated in a way that has little to do with what goes on in the darkness of the individual skull, though you require a brain in working order in order to be part of it. If you come across a new discipline with the prefix “neuro” and it is not to do with the nervous system itself, switch on your bullshit detector. If it has society in its sights, reach for your gun. Bring on the neurosceptics.

"Why Blame Me?  It Was All My Brain's Fault."

Excerpt:

Meanwhile, the neuromitigation of blame has to be treated with suspicion except in those instances where there is unambiguous evidence of grossly abnormal brain function or abnormal mental function due to clearcut illness that may have its origin in brain disease. Our knowledge of the relationship between brain and consciousness, brain and self, and brain and agency is so weak and so conceptually confused that the appeal to neuroscience in the law courts, the police station or anywhere else is premature and usually inappropriate. And, I would suggest, it will remain both premature and inappropriate. Neurolaw is just another branch of neuromythology.

"You Won't Find Consciousness in the Brain." (*)

Excerpt:

Our failure to explain consciousness in terms of neural activity inside the brain inside the skull is not due to technical limitations which can be overcome. It is due to the self-contradictory nature of the task, of which the failure to explain "aboutness", the unity and multiplicity of our awareness, the explicit presence of the past, the initiation of actions, the construction of self are just symptoms. We cannot explain "appearings" using an objective approach that has set aside appearings as unreal and which seeks a reality in mass/energy that neither appears in itself nor has the means to make other items appear. The brain, seen as a physical object, no more has a world of things appearing to it than does any other physical object.

(*) This piece is not specifically about neurolaw, but it is based on assumptions that inform Tallis' so-called neuro-skepticism.

It appears both Tallis' strategy and his rhetoric are catching on, as evidenced by this recent piece by Denyse O'Leary over at Mertcator.net:

"Brain Scans and Neurotrash"

Excerpt:

I'd like to propose a radical idea. Why don't the neuroscientists and progressive humanists stop hyperventilating and chill out for a while. Let them reflect on the fact that a hundred years ago phrenology, the "science" of analysing behaviour by putting a tape measure around a skull, was all the rage. Until they can account for the difference between the mind and the brain, their research might not be worth a hill of beans. In fact, it might just be, in the words of Raymond Tallis, neo-phrenology.

Neurolaw in the News

Neuroscience has taken center stage in two recent criminal court cases--one in Italy, the other in Chicago, IL.  In the former case, a convicted murderer got a reduced sentence based on evidence concerning his low activity MAOA (see here for a brief discussion about MAOA).  The case was discussed recently in Nature News.  Here is an excerpt:

An Italian court has cut the sentence given to a convicted murderer by a year because he has genes linked to violent behaviour — the first time that behavioural genetics has affected a sentence passed by a European court. But researchers contacted by Nature have questioned whether the decision was based on sound science.

Abdelmalek Bayout, an Algerian citizen who has lived in Italy since 1993, admitted in 2007 to stabbing and killing Walter Felipe Novoa Perez on 10 March. Perez, a Colombian living in Italy, had, according to Bayout's testimony, insulted him over the kohl eye make-up the Algerian was wearing. Bayout, a Muslim, claims he wore the make-up for religious reasons.

During the trial, Bayout's lawyer, Tania Cattarossi, asked the court to take into account that her client may have been mentally ill at the time of the murder. After considering three psychiatric reports, the judge, Paolo Alessio Vernì, partially agreed that Bayout's psychiatric illness was a mitigating factor and sentenced him to 9 years and 2 months in prison — around three years less than Bayout would have received had he been deemed to be of sound mind.

But at an appeal hearing in May this year, Pier Valerio Reinotti, a judge of the Court of Appeal in Trieste, asked forensic scientists for a new independent psychiatric report to decide whether he should commute the sentence further.

Recent Neurolaw-related Papers

There have been several interesting neurolaw-related papers posted recently on SSRN.  So, I have decided to start a new series of posts that will contain links to the ones that I find to be particularly illuminating. For now, here is the first installment:

Dave Marcotte and Sara Markowitz, "A Cure for Crime? Psycho-Pharmaceuticals and Crime Trends."

Abstract:

In this paper we consider possible links between the advent and diffusion of a number of new psychiatric pharmaceutical therapies and crime rates. We describe recent trends in crime and review the evidence showing mental illness as a clear risk factor both for criminal behavior and victimization. We then briefly summarize the development of a number of new pharmaceutical therapies for the treatment of mental illness which diffused during the "great American crime decline." We examine limited international data, as well as more detailed American data to assess the relationship between crime rates and rates of prescriptions of the main categories of psychotropic drugs, while controlling for other factors which may explain trends in crime rates. We find that increases in prescriptions for psychiatric drugs in general are associated with decreases in violent crime, with the largest impacts associated with new generation antidepressants and stimulants used to treat ADHD. Our estimates imply that about 12 percent of the recent crime drop was due to expanded mental health treatment.

Michael Perlin, "And I Can See Through Your Brain: Access to Experts, Competency to Consent, and the Implact of Antipsychootic Medications in Neuroimaging Cases in the Criminal Trial Process."

Abstract:

This paper considers the implications of neuroimaging in three under discussed aspects of criminal procedure - the implications of Ake v. Oklahoma (an indigent defendant's access to expert testimony) in cases where neuroimaging tests might be critical, (2) the defendant's competency to consent to the imposition of a neuroimaging test or examination; and (3) the impact of medications - specifically, antipsychotic medications - on a defendant's brain at the time that such a test is performed. Given the warning signals that have been raised by commentators as to the potentiality of juror misuse and misinterpretation of neuroimaging testimony, it is critical that we take seriously the issues raised here. I conclude that there are hidden landmines inevitably present when we think about the use of neuroimaging in criminal trials - landmines that go can infect the fairness of the trial process itself.  If an indigent criminal defendant is refused access to an independent expert in an area where jurors may uncritically accept neuroimaging testimony (because of its visual appeal and its apparent lack of falsifiability), the fairness of the entire trial remains in question. If no attention is paid to the difficult and complex ethical issues that should surface if the question of the defendant's competency to consent to being tested is not raised, trial fairness is a concern. And finally, if we ignore the reality that the neuroimaging evidence shown to jurors may not be an accurate depiction of the defendant's brain at the time of the offense - but rather, a depiction of his brain at a later time when his brain biochemistry has been altered by the imposition of medication - we willfully blind ourselves to the possibility (perhaps "likelihood") that the database presented to the jury is potentially fatally flawed.

The Future of Neuroimaged Lie Detection and the Law

Joelle Anne Moreno has an interesting new article entitled, "The Future of Neuroimaged Lie Detection and the Law."  The abstract is as follows:

Neuroscience will certainly change law. In fact, neuroscience research has the potential to influence a vast range of legal decisions. To the extent that neuroscientists increasingly make claims that neuroimaging reveals cognition, even the most unimaginative prognosticator might predict: (1) the preliminary investigative use of neuroimages to enhance witness interviews and police interrogations (including but not limited to lie-detection), (2) jury selection based on neuroimages that appear to reveal jurors' unconscious stereotypes or biases, and (3) arguments about intent or sentencing based on neuroimage-enhanced explanations of behavior and predictions of dangerousness. In anticipation of a brave new world of neuroscience 'enhanced' law, this Article suggests that if we want to predict or control future social and legal responses to cognitive neuroscience research, we must carefully and explicitly consider two basic preexisting realities: (1) our shared assumptions about the validity of the medical field of neuroscience and the accuracy of diagnostic neuroimaging technologies; and (2) our increasingly frequent exposure (even within the mainstream media) to uncritical reports of cognitive neuroscience research that purports to correlate brain activity with cognition, deception,or social behavior. The risk, is that if we ignore these realities, judges, jurors, and the general public will likely view all or most neuroscience-based evidence as legitimate 'hard' science because researchers rely on technologically sophisticated neuroimaging tools of demonstrated accuracy. The problem is that judges and jurors will mistakenly assume that technologies that are demonstrably valid medical diagnostic tools yield equally valid conclusions when they are used to map the neural correlates of deception and other forms of cognition.

As always, happy reading!

President's Council on Bioethics (2004)

I recently stumbled upon the on-line transcripts from the 2004 meeting on Neuroethics by the President's Council on Bioethics.  There are several interesting things to read.  Here are the ones I found to be the most useful/illuminating (the full list is here):

1. Neuroscience, Neuropsychiatry and Neuroethics: An Overview (Robert Michels)
2. Neuroscience and Neuroethics: Reward and Decision (Jonathan Cohen)
3. Emotional and Cognitive Development in Children (Jerome Kagan & Elizabeth Spelke)
4. Brain Imaging (Michael Gazzaniga and others)
5. Neuroscience and the Law (Stephen Morse)
6. Understanding Aggressive Behavior Through Neuroscience (Emil Coccaro)

As always, happy reading!