MISCELLANEOUS

PRESENTATIONS

Defending your Clients Integrity: Addressing Evidence of Malingering, Manipulativeness, and Psychopathy – Dr. Richard Rogers

Testifying experts vary markedly in depth and breadth of their professional training, which is often reflected in their approach and preparation to a particular criminal case with mental health issues. On occasion, experts go far beyond the research-based evidence for their conclusions. In other instances, their knowledge base lacks the necessary foundation to support their opinions. The goal of this presentation is to preserve our respect for well-credentialed experts, while holding them accountable—as all professionals—for their methods, findings, and conclusory opinions. In providing a clear direction, three issues are addressed. First, conclusions or even inferences about malingering can fully damage a client’s credibility. Second, more general comments about manipulativeness and deceit may strengthen negative views of the client. Third, even passing comments about psychopathy can be harmful, such conning, callousness, and pathological lying.

“Prepping to Beat or Mitigate a Gang Case—At Guilt and Penalty Phase”Download

GUIDES AND HANDBOOKS

“Providing Effective Communication for Clients who are Deaf, Hard of Hearing, or Deaf/Blind: A Handbook for Florida Attorneys”Download

LEGAL AND SCIENTIFIC ARTICLES

Neuroscience and the Criminal Justice System

Henry T. Greely & Nita A. Farahany, Neuroscience and the Criminal Justice System, 2 Ann. Rev. Criminology 451 (2019).

Abstract: The criminal justice system acts directly on bodies, but fundamentally it cares about minds. As neuroscience progresses, it will increasingly be able to probe the objective, physical organ of the brain and reveal secrets from the subjective mind. This is already beginning to affect the criminal justice system, a trend that will only increase. This review article cannot begin even to sketch the full scope of the new field of law and neuroscience. The first workshop on the subject was held in 2003 (Garland 2004), but the field already has its own casebook (Jones et al. 2014) and the MacArthur Foundation Research Network on Law and Neuroscience (2018) shows more than 1,700 publications in the area between 1984 and 2017. Greely (2009) divided the implications of law into five different categories: prediction, mind-reading, responsibility, treatment, and enhancement. This article examines only three points: the current use of neuroscience to understand and explain criminal behavior, the possibilities of relevant neuroscience-based prediction, and plausible future applications of neuroscience to the treatment of criminals. But first, we discuss the human brain and how it works.

Neuroimaging and Neurolaw: Drawing the Future of Aging

Vincenzo Tigano, Giuseppe Cascini, Cristina Sanchez-Castañeda, Patrice Péran & Umberto Sabatini, Neuroimaging and Neurolaw: Drawing the Future of Aging, Frontiers in Endocrinology (2019).

Abstract: Human brain-aging is a complex, multidimensional phenomenon. Knowledge of the numerous aspects that revolve around it is therefore essential if not only the medical issues, but also the social, psychological, and legal issues related to this phenomenon are to be managed correctly. In the coming decades, it will be necessary to find solutions to the management of the progressive aging of the population so as to increase the number of individuals that achieve successful aging. The aim of this article is to provide a current overview of the physiopathology of brain aging and of the role and perspectives of neuroimaging in this context. The progressive development of neuroimaging has opened new perspectives in clinical and basic research and it has modified the concept of brain aging. Neuroimaging will play an increasingly important role in the definition of the individual’s brain aging in every phase of the physiological and pathological process. However, when the process involved in age-related brain cognitive diseases is being investigated, factors that might affect this process on a clinical and behavioral level (genetic susceptibility, risks factors, endocrine changes) cannot be ignored but must, on the contrary, be integrated into a neuroimaging evaluation to ensure a correct and global management, and they are therefore discussed in this article. Neuroimaging appears important to the correct management of age-related brain cognitive diseases not only within a medical perspective, but also legal, according to a wider approach based on development of relationship between neuroscience and law. The term neurolaw, the neologism born from the relationship between these two disciplines, is an emerging field of study, that deals with various issues in the impact of neurosciences on individual rights. Neuroimaging, enhancing the detection of physiological and pathological brain aging, could give an important contribution to the field of neurolaw in elderly where the full control of cognitive and volitional functions is necessary to maintain a whole series of rights linked to legal capacity. For this reason, in order to provide the clinician and researcher with a broad view of the brain-aging process, the role of neurolaw will be introduced into the brain-aging context.

Stimulation of the Prefrontal Cortex Reduces Intentions to Commit Aggression: A Randomized, Double-Blind, Placebo-Controlled, Stratified, Parallel-Group Trial

Olivia Choy, Adrian Raine, & Roy H. Hamilton, Stimulation of the Prefrontal Cortex Reduces Intentions to Commit Aggression: A Randomized, Double-Blind, Placebo-Controlled, Stratified, Parallel-Group Trial, 17 Neurosci. 3317 (2018).

Abstract: Although prefrontal brain impairments are one of the best-replicated brain imaging findings in relation to aggression, little is known about the causal role of this brain region. This study tests whether stimulating the dorsolateral prefrontal cortex (DLPFC) using transcranial direct current stimulation (tDCS) reduces the likelihood of engaging in aggressive acts, and the mechanism underlying this relationship. In a double-blind, stratified, placebo-controlled, randomized trial, 81 human adults (36 males, 45 females) were randomly assigned to an active (N = 39) or placebo (N = 42) condition, and followed up one day after the experiment session. Intentions to commit aggressive acts and behavioral aggression were assessed using hypothetical vignettes and a behavioral task, respectively. The secondary outcome was the perception of the moral wrongfulness of the aggressive acts. Participants who received anodal stimulation reported being less likely to commit physical and sexual assault (p < .01), and judged aggressive acts as more morally wrongful (p < .05) compared to the sham controls. 31% of the total effect of tDCS on intentions to commit aggression was accounted for by perceptions of greater moral wrongfulness regarding the aggressive acts. Results provide experimental evidence that increasing activity in the prefrontal cortex can reduce intentions to commit aggression and enhance perceptions of moral judgment. Findings shed light on the biological underpinnings of aggression and theoretically have the potential to inform future interventions for aggression and violence.

The Use of Neuroscientific Discoveries in Criminal and Civil Evidence Law

Denis Magyar, The Use of Neuroscientific Discoveries in Criminal and Civil Evidence Law, 11 MED. L. & SOC’Y 121–36 (2018).

Abstract: The problem of objectification in criminal and civil evidence law is the basis of present work. Neuroscientific discoveries should be taken into account in evidentiary procedures when objectifying subjective facts. The first neuroscientific steps in objectifying pain and other subjective facts have already been made. The author outpoints certain limitations in the field of incorporation of neuroscientific discoveries into judicial procedures. He argues that some neuroscientific discoveries are already suitable for evidentiary purposes and their number will gradually increase. Neuroscience is looking forward to a gradual improvement of neuroimaging technologies that will increase the number of (reliable) discoveries applicable in evidence law. Neuroscientific discoveries are going to become an important part in objectification of subjective facts in criminal and civil procedures.

Integrating Brain Science and Law: Neuroscientific Evidence and Legal Perspectives on Protecting Individual Liberties

Kraft CJ, Giordano J. Integrating Brain Science and Law: Neuroscientific Evidence and Legal Perspectives on Protecting Individual Liberties. Frontiers in Neuroscience. 2017;11:621. doi:10.3389/fnins.2017.00621.

Abstract: Advances in neuroscientific techniques have found increasingly broader applications, including in legal neuroscience (or “neurolaw”), where experts in the brain sciences are called to testify in the courtroom. But does the incursion of neuroscience into the legal sphere constitute a threat to individual liberties? And what legal protections are there against such threats? In this paper, we outline individual rights as they interact with neuroscientific methods. We then proceed to examine the current uses of neuroscientific evidence, and ultimately determine whether the rights of the individual are endangered by such approaches. Based on our analysis, we conclude that while federal evidence rules constitute a substantial hurdle for the use of neuroscientific evidence, more ethical safeguards are needed to protect against future violations of fundamental rights. Finally, we assert that it will be increasingly imperative for the legal and neuroscientific communities to work together to better define the limits, capabilities, and intended direction of neuroscientific methods applicable for use in law. Read the full article.

The Impact of Neuroscience Data in Criminal Cases: Female Defendants and the Double-Edged Sword

Valerie Gray Hardcastle, M. K. Kitzmiller, & Shelby Lahey, The Impact of Neuroscience Data in Criminal Cases: Female Defendants and the Double-Edged Sword, 21 New Crim. L. Rev. 291–315 (2018).

Abstract: Data regarding gender disparities in sentencing are contradictory. We argue that one reason for the mixed results is that female defendants who commit similar crimes are treated differently depending upon whether the defense portrays them as someone with serious mental deficiencies or as a normal person who got caught up in abnormal circumstances. We suggest that judges and juries use neuroscience data to support their preconceived notions of what “bad” women are like, even as defense counsel presents these data to support claims that their clients are less culpable. Using a case study approach, we do a pair-wise comparison of four appellate decisions in which female defendants were accused of committing similar crimes under similar circumstances, but for whom data regarding brain impairments differed substantially to determine what difference the neuroscience data might make in case outcomes. This analysis provides preliminary data suggesting that neuroscience data can act to promote a defendant’s blameworthiness even as it is used to mitigate the findings.

Forensic Psychiatry and Neurolaw: Description, Developments, and Debates

Gerben Meynen, Forensic psychiatry and neurolaw: Description, developments, and debates, 57 Int’l J. Law & Psychiatry (2018).

Abstract: Neuroscience produces a wealth of data on the relationship between brain and behavior, including criminal behavior. The research field studying the possible and actual impact of neuroscience on the law and legal practices, is called neurolaw. It is a new and rapidly developing domain of interdisciplinary research. Since forensic psychiatry has to do with both neuroscience and the law, neurolaw is of specific relevance for this psychiatric specialty. In this contribution, I will discuss three main research areas in neurolaw – revision, assessment, and intervention – and explore their relevance for forensic psychiatry. I will identify some valuable possibilities as well as some notable challenges – both technical and ethical – for forensic psychiatry regarding neurolaw developments.

The Neuropsychological Assessment of Justice-Involved Men: Descriptive Analysis, Preliminary Data, and a Case for Group-Specific Norms

LaDuke, Casey, David DeMatteo, Kirk Heilbrun, Jennifer Gallo, & Thomas Swirsky-Sacchetti, The Neuropsychological Assessment of Justice-Involved Men: Descriptive Analysis, Preliminary Data, and a Case for Group-Specific Norms, Arch Clin Neuropsychology 1 (2017).

Abstract: Neuropsychological expertise has played an increasing role in legal decision-making in criminal contexts. Valid neuropsychological evidence in criminal forensic contexts requires normative data that are representative of justice-involved individuals. Unfortunately, existing normative data appear unlikely to represent justice-involved individuals due to significant demographic and clinical factors specific to this population. As a result, the interpretation of neuropsychological performance with justice-involved individuals using existing normative data may increase the risk of inaccurate description, invalid clinical conceptualization, misdiagnosis of impairment, and misattribution of deficits in functional-legal capacities. The current study aimed to examine the use of neuropsychological assessment with justice-involved men.

A sample of incarcerated men (N = 95) was assessed using a battery of demographic, clinical, and neuropsychological measures. Descriptive analyses showed the demographic and clinical diversity of justice-involved men. Inferential statistical analyses, effect size calculations, and clinical analyses demonstrated that a sample of justice-involved men performed significantly differently and was more impaired than commonly referenced normative samples across multiple measures of intellectual functioning, attention, verbal fluency, and executive functioning. Preliminary data are provided to aid the use of the selected neuropsychological measures with justice-involved men.

Justice-involved men appear to represent a distinct neuropsychological population. Group-specific normative data will be useful to help ensure that opinions about these individuals are relevant, valid, and admissible within legal decision-making in criminal contexts. The current data can guide future efforts to develop substantive normative data on neuropsychological measures likely to be used in the assessment of justice-involved men.

Brain-Based Mind Reading for Lawyers: Reflecting on Possibilities and Perils

Lisa Claydon; Brain-based mind reading for lawyers: reflecting on possibilities and perils, Journal of Law and the Biosciences, Volume 4, Issue 3, 1 December 2017, Pages 594–598, https://doi.org/10.1093/jlb/lsx032.

Abstract: Gerben Meynen’s article provides, from a legal perspective, a useful starting point to distinguish between the different types of technologies which offer the possibility of ‘brain-based mind reading’. It is timely because, as he points out, the first profession that is likely to use these technologies, when they become more accurate, are forensic psychiatrists. As forensic psychiatric assessments are widely used in the criminal court room by judges and in adversarial justice systems by prosecution and defense, then what he has to say is of interest to the law. Moreover, there is no doubt that the use of these technologies raises questions that need to be addressed by lawyers.

I Could Have Done Otherwise: Availability of Counterfactual Comparisons Informs the Sense of Agency

Eugenia Kulakova, Nima Khalighinejad, & Patrick Haggard, I could have done otherwise: Availability of counterfactual comparisons informs the sense of agency, 49 CONSCIOUS COGN. 237 (2017).

Abstract: Personal control and agency are closely associated with the counterfactual notion that a person could have done otherwise (CDO). In both philosophy and law, this counterfactual evaluation determines responsibility and punishment, yet little is known about its influence on agents’ experience during action. We used a risky decision-making task to study how counterfactual evaluations influenced participants’ sense of agency. Two factors were manipulated independently: the presence/absence of counterfactual comparisons between actions and the presence/absence of counterfactual comparisons between outcomes of these actions. Perceived agency was highest when both counterfactual comparisons were available. Interestingly, this pattern persisted even when counterfactual information was only revealed after action, suggesting a purely reconstructive evaluation effect. These findings allow a more precise phrasing of the CDO element of personal agency: a person feels most control when she could have performed another action, thereby obtaining another outcome.

‘Wisdom is Thrown into Jail’: Using Therapeutic Jurisprudence to Remediate the Criminalization of Persons with Mental Illness

Perlin, Michael. (2013). ‘Wisdom is Thrown into Jail’: Using Therapeutic Jurisprudence to Remediate the Criminalization of Persons with Mental Illness. SSRN Electronic Journal. 10.2139/ssrn.2220403.

Abstract: The common wisdom is that there are two related villains in the saga of the “criminalization of persons with mental illness”: the dramatic elimination of psychiatric hospital beds in the 1970s and 1980s as a result of the “civil rights revolution,” and the failure of deinstitutionalization movement. Both of these explanations are superficially appealing, but neither is correct; in fact, the causal link between deinstitutionalization and criminalization has never been rigorously tested. It is necessary, rather, to consider another issue to which virtually no attention has been or is being paid: the near-disappearance of mental status issues from the criminal trial process. It was never an attractive option for a criminal defense lawyer to put forth a lack of responsibility defense or to raise the question of her client’s mental status at time of trial. A number of events in the past three decades, however, have made these options even less attractive – the narrowing of the insanity defense in many jurisdictions; the Supreme Court’s decision in Jones v. United States, sanctioning periods of confinement following insanity acquittals longer (often far longer) than the maximum sentence for the underlying crime; the states’ continued failure to adequately implement Jackson v. Indiana; the greater use of involuntary anti-psychotic medication as a means of seeking to restore incompetent defendants’ competency to stand trial. As a result, there is much less of an incentive for lawyers to explore these options as, realistically, their clients will most likely be incarcerated for far less time if there is no court decision as to competency or sanity.In my paper, I will discuss: 1) why the common wisdom is wrong, (2) why and how the universe of mental status/ defense has shrunk so markedly, 3) how therapeutic jurisprudence should be pursued as potentially remediating influences on the current state of affairs, and (4) why it is crucial that lawyers be trained in the intricacies of this complex area of law and policy.

‘Wisdom is Thrown into Jail’: Using Therapeutic Jurisprudence to Remediate the Criminalization of Persons with Mental Illness | Request PDF. Available from: https://www.researchgate.net/publication/256048064_’Wisdom_is_Thrown_into_Jail’_Using_Therapeutic_Jurisprudence_to_Remediate_the_Criminalization_of_Persons_with_Mental_Illness [accessed Nov 06 2018].

PLEA BARGAINING

Limitations on the Ability to Negotiate Justice: Attorney Perspectives on Guilt, Innocence, and Legal Advice in the Current Plea System

Abstract: In the American criminal justice system the vast majority of criminal convictions occur as the result of guilty pleas, often made as a result of plea bargains, rather than jury trials. The incentives offered in exchange for guilty pleas mean that both innocent and guilty defendants plead guilty. We investigate the role of attorneys in this context, through interviews with criminal defense attorneys. We examine defense attorney perspectives on the extent to which innocent defendants are (and should be) pleading guilty in the current legal framework and investigate their views of their own role in this complex system. We also use a hypothetical case to probe the ways in which defense attorneys consider guilt or innocence when providing advice on pleas. Results indicate that attorney advice is influenced by guilt or innocence, but also that attorneys are limited in the extent to which they can negotiate justice for their clients in a system in which uncertainty and large discrepancies between outcomes of guilty pleas and conviction at trial can make it a sensible option to plead guilty even when innocent. Results also suggest conflicting opinions over the role of the attorney in the plea-bargaining process.

BIAS

Implicit Bias: New Science in Search of New Legal Strategies Toward Fair and Impartial Criminal Trials

Sharon Price-Cates, Implicit Bias, 313 Aug N.J. Law. 65 (2018).

Abstract: Research by social scientists and neuroscientists has made available more accurate models on how the brain works, explaining how people think and behave. This research is informing the legal community that while racial bias and discrimination certainly can be intentional, it is just as likely to be unconscious ‘implicit bias. Implicit bias refers to automatic and non-conscious attitudes and stereotypes held toward members of certain groups. An attitude is an association between a social group and a positive or negative evaluation of that group (e.g., likes and dislikes, favorable and unfavorable). A stereotype is an association between a social group or category and a specific trait. There is mounting evidence that implicit bias affects understanding, decision-making and behavior toward individuals in ways that promote accumulating advantage and disadvantage.

Social scientists have used a number of techniques to measure and study implicit bias. The best known is the Implicit Association Test (IAT). The race IAT measures the attitudes of white individuals toward persons who are black. Test takers follow instructions on a computer screen, pressing designated keys to categorize words and/or pictures. The IAT uses reaction time as a measure of how closely any two concepts or stimuli are associated. The association is stronger the faster the reaction time. These correlations developed from research on how the brain works, sorting information and placing things into categories without conscience awareness.

Some have expressed skepticism about the reliability and validity of the IAT. However, proponents of the test also validate the IAT by pointing to neuroscience research, which uses functional magnetic resonance imaging (fMRI) technology that measures and maps activity in various parts of the brain, and by detecting changes associated with blood flow while a subject completes an IAT or other tasks.

Looking Criminal and the Presumption of Dangerousness: Afrocentric Facial Features, Skin Tone, and Criminal Justice

Mark W. Bennett & Victoria C. Plaut, Looking Criminal and the Presumption of Dangerousness: Afrocentric Facial Features, Skin Tone, and Criminal Justice, 51 C. Davis. L. Rev. 745 (2018).

Abstract: Social psychologists have established that faces of Black males trigger thoughts of violence, crime, and dangerousness, and thoughts of crime trigger thoughts and images of Black males. This presumption of dangerousness increases with darker skin tones (colorism) and greater Afrocentric facial features and affects both men and women. We examine the history of the stereotype of Blacks and crime, violence, and dangerousness arising in the United States from the time of slavery. We focus on the historical development of this stereotype through a lens of history, literature, pseudo-science, emerging neuroscience, media distortion of crime reporting, and the development of the Negro-ape metaphor. We then look beyond the Black-White race dichotomy to *746 explore the evolving social science literature examining the influence of skin tone and Afrocentric facial features on the length of criminal sentences. We further explore the social science supporting the presumption of dangerousness and conclude with recommendations to help ameliorate this problem that permeates the United States criminal justice system.

The Impact of Virtual Reality on Implicit Racial Bias and Mock Legal Decisions

Natalie Salmanowitz, The impact of virtual reality on implicit racial bias and mock legal decisions, 5 J. Law & Biosci. 174 (2018).

Abstract: Implicit racial biases are one of the most vexing problems facing current society. These split-second judgments are not only widely prevalent, but also are notoriously difficult to overcome. Perhaps most concerning, implicit racial biases can have consequential impacts on decisions in the courtroom, where scholars have been unable to provide a viable mitigation strategy. This article examines the influence of a short virtual reality paradigm on implicit racial biases and evaluations of legal scenarios. After embodying a black avatar in the virtual world, participants produced significantly lower implicit racial bias scores than those who experienced a sham version of the virtual reality paradigm. Additionally, these participants more conservatively evaluated an ambiguous legal case, rating vague evidence as less indicative of guilt and rendering more Not Guilty verdicts. As the first experiment of its kind, this study demonstrates the potential of virtual reality to address implicit racial bias in the courtroom setting.

Let’s Get Real: Behavioral Realism, Implict Bias, and the Reasonable Police Officer

Megan Quattlebaum, Let’s Get Real: Behavioral Realism, Implicit Bias, and the Reasonable Police Officer, 14 Stan. J. Civ. Rts. & Civ. Liberties 1 (2018).

Abstract: Constitutional law is not particularly sophisticated about bias, and so it is not very good at protecting people from it. This is nowhere more evident than in the Supreme Court’s jurisprudence around racial profiling. The Supreme Court has conceptualized racial profiling as something only bad police officers do; it has equated bad stops with bad cops. But in recent years, social psychologists have amassed significant evidence showing that most people possess implicit biases and that these biases can affect our behavior, particularly when certain conditions are present. This means that many instances of racial profiling are likely to be unintentional.

Supreme Court jurisprudence makes the Fourteenth Amendment the constitutional vehicle for remedying racial profiling, but the Court has limited that Amendment’s ability to respond to unintentional racial profiling by requiring that plaintiffs show intent to discriminate. I contend that the Fourth Amendment can fill this gap, serving as a powerful tool for addressing contemporary forms of bias. But if the Fourth Amendment is to fill this role, courts must eschew post hoc evaluations of the moral character of the searching and seizing officers in favor of forward-looking, probabilistic assessments of the contexts that are most likely to lead to reasonable outcomes given what we know about human behavior. Rules that constrain officer discretion, encourage restraint rather than action in the face of ambiguity, and hold officers accountable for their choices will lead to more reasonable searches and seizures, because implicit biases will be less likely to be activated with such rules in place.

Minority Mens Rea: Racial Bias and Criminal Mental States

Shen, Francis X., Minority Mens Rea: Racial Bias and Criminal Mental States (July 7, 2017). 68 Hastings Law Journal 1007 (2017). Available at SSRN: https://ssrn.com/abstract=2998915.

Abstract: The American criminal justice system relies upon jurors to regularly decode the mental states of criminal defendants. These determinations are often of black and Hispanic defendants, making “minority mens rea” a centerpiece of the justice process. This Article presents an empirical investigation of how jury eligible subjects decode minority mens rea. In a study involving over 1200 subjects, the Article explores whether subjects assign fictional protagonists named Jamal and Lakisha more culpable mental states than they assign to protagonists named John and Emily. The results show that, at least on this particular experimental task, racial bias does not affect the assessment of minority mens rea. An implication is that some decisionmaking contexts and tasks may dampen the effects of racial biases. The Article thus argues that we should continue to examine distinct legal decisionmaking tasks in order to better understand how biases do (and do not) affect outcomes in the criminal justice system.

ABUSE

Abuse Victims Who Kill and the New Rehabilitation Model

Sara Weskalnies, Abuse Victims Who Kill and the New Rehabilitation Model, 2018 Mich. St. L. Rev. 451 (2018).

Abstract: Part I of this Note discusses the current problems abuse victims who kill their abusers face within the legal system and explains the inadequacies of the trial system, as it often fails to protect abuse victims from incarceration. Part II examines the penal philosophies encompassed within the current federal and state sentencing guidelines and not only analyzes their flaws, but also the movement toward an evidence-based system, further supporting rehabilitation’s revival. Finally, Part III argues that the new rehabilitation model is the best alternative for abuse victims who kill their abusers in self-defense and do not receive an acquittal. This section urges the criminal justice system to consider the individual offender and the totality of the circumstances surrounding the crime, including the circumstances influencing the mental state of the offending abuse victim. By considering the individual offender, the system itself can institute a reform more cognizant of and sensitive to the mental, emotional, and physical effects of abuse, therefore shifting the focus of sentencing from punishment to treatment. This section further addresses the benefits and criticisms of using the new rehabilitation model as a solution. This Note ultimately concludes by arguing that the benefits of implementing a rehabilitative focus in sentencing guidelines for abuse victims outweigh any criticism to altering the system.

THE EXCITED-UTTERANCE EXCEPTION

The Excited Utterance Paradox

Steven Baicker-McKee, The Excited Utterance Paradox, 41 Seattle U. L. Rev. 111 (2017).

Abstract: Based on nothing more than John Henry Wigmore’s personal belief that a witness under the throes of excitement is unable to fabricate an untruthful statement, the excited utterance exception allows parties to present out-of-court statements to the jury or judge without any of the safeguards the judicial system uses to promote honest and accurate testimony. This Article collects and examines much of the scientific evidence bearing on Wigmore’s premise and identifies two paradoxical conclusions that undermine the exception. First, the premise itself is unfounded; science absolutely does not support the notion that a witness is incapable of lying while emotionally agitated. But, there is a second phenomenon at work that counteracts the premise (were it valid); witnesses under extreme emotional stress are unreliable observers and reporters of the events causing the stress. Thus, in the unlikely event that an occurrence was sufficiently stressful to impede the ability to lie, the stress would also interfere with the ability to perceive and describe the occurrence reliably. Based on this paradox, this Article concludes that the excited utterance exception is both broken and irreparable, and therefore recommends abandoning the excited utterance exception altogether.

POVERTY

Class in the Classroom: Poverty, Policies, and Practices Impeding Education

Christine Chambers Goodman, Class in the Classroom: Poverty, Policies, and Practices Impeding Education, 27 J. Gender, Soc. Pol’y & L. 95 (2019).

Abstract: Part I of this Article begins with social science evidence to justify the combination approach of “equally adequate” education. It describes the data on the impact of SES on brain development. Part I also addresses the impacts of one’s physical environment, including the levels of poverty, crime, educational opportunity, housing, upward mobility, and stress in neighborhoods on educational outcomes. It then considers some potential counterarguments and poses questions that can guide social scientists in further research. Part II describes the constitutional protections for education and the state court litigation around those issues, concurring with the conclusion of others who believe that the key point of the constitutional right is to provide an education sufficient to participate in democratic processes of the nation. This section addresses the constitutional arguments around education and adequacy versus equality, recent cases putting forth these arguments, and their status. Part III briefly addresses the federal legislation, namely the No Child Left Behind Act (NCLB), which has subsequently been revised and renamed the Every Student Succeeds Act (ESSA). To the extent data is available, this Article will examine how ESSA is working (relative to NCLB), as well as whether it is making progress for students in states who promote either equal or adequate education. Thus far, there is little data about application because the states only recently submitted their plans, and so this part focuses on the ESSA’s goals and shortfalls, and then looks at the plans put into place by several states. Part III will then highlight the adequacy and equality litigation currently and recently pending in selected states. The Article concludes with several proposals for future consideration by courts, policymakers, and legislatures.

“Neglected Infections of Poverty in the United States and Their Effects on the Brain” by Peter J. Hotez, JAMA Psychiatry (2014)

Abstract: A group of neglected infections are emerging as important causes of psychiatric and mental illness among vulnerable populations living in extreme poverty in the United States. These chronic infections may partially account for the achievement gap noted among socioeconomically disadvantaged students. Read the full article.

ALZHEIMER’S DISEASE AND DEMENTIA

Dementia: An Overview for Criminal Law Practitioners

Arthi Kumaravel & Eric Y. Drogin, Dementia: An Overview for Criminal Law Practitioners, 34 Wtr. Crim. Just. 4 (2020).

Abstract: Client A, a 73-year-old indigent defendant, has been referred to you for representation after having been charged with a misdemeanor criminal offense. She is living independently on her own, although she requires some assistance with paying her bills each month. During her conversation with you, Client A demonstrates the ability to express a consistent choice of how she would like you to address her case, but occasionally has some difficulty remembering minor details. Although you feel that she is probably competent to stand trial, you worry about her memory issues regarding certain critical details of her arrest and subsequent questioning. What can you do to help this client?

REHABILITATION

Treatment for Crime: Philosophical Essays on Neurointerventions in Criminal Justice

Treatment for Crime: Philosophical Essays on Neurointerventions in Criminal Justice, Oxford University Press (David Birks & Thomas Douglas, eds. Forthcoming 2018).

Abstract: Preventing recidivism is one of the aims of criminal justice, yet existing means of pursuing this aim are often poorly effective, highly restrictive of basic freedoms, and significantly harmful. Incarceration, for example, tends to be disruptive of personal relationships and careers, detrimental to physical and mental health, restrictive of freedom of movement, and rarely more than modestly effective at preventing recidivism. Crime-preventing neurointerventions (CPNs) are increasingly being advocated, and there is a growing use of testosterone-lowering agents to prevent recidivism in sexual offenders, and strong political and scientific interest in developing pharmaceutical treatments for psychopathy and anti-social behaviour. Future neuroscientific advances could yield further CPNs; we could ultimately have at our disposal a range of drugs capable of suppressing violent aggression and it is not difficult to imagine possible applications of such drugs in crime prevention.

Neurointerventions hold out the promise of preventing recidivism in ways that are both more effective, and more humane. But should neurointerventions be used in crime prevention? And may the state ever permissibly impose CPNs as part of the criminal justice process, either unconditionally, or as a condition of parole or early release? The use of CPNs raises several ethical concerns, as they could be highly intrusive and may threaten fundamental human values, such as bodily integrity and freedom of thought. In the first book-length treatment of this topic, Treatment for Crime, brings together original contributions from internationally renowned moral and political philosophers to address these questions and consider the possible issues, recognizing how humanity has a track record of misguided, harmful and unwarrantedly coercive use of neurotechnological ‘solutions’ to criminality.

‘The Soul is the Prison of the Body’ – Mandatory Moral Enhancement, Punishment & Rights Against Neuro-Rehabilitation

Christoph Bublitz, ‘The Soul is the Prison of the Body’ – Mandatory Moral Enhancement, Punishment & Rights Against Neuro-Rehabilitation in Treatment for Crime: Philosophical Essays on Neurointerventions in Criminal Justice (David Birks & Thomas Douglas, eds. Forthcoming 2018).

Abstract: The promise of neurobiological interventions that afford improving pro-social behavior is particularly interesting for criminal justice systems. After all, rehabilitation of offenders is one of their central objectives. This raises the question whether states can deploy such means to rehabilitate offenders against the latters’ will, as part of – or instead of – punishment. Some advocates of compulsory treatments of offenders consider them more humane (and effective) than current forms of hard treatment such as incarceration. This chapter critically engages with suggestions to treat legally competent offenders for rehabilitative purposes against their will by emphasizing two aspects: First, strong human rights of offenders – summarily the right to mental self-determination – oppose mandatory interventions into criminogenic psychological states or processes. These human rights are not (yet) recognized in every jurisdiction, but emerge from general liberal and democratic principles most western jurisdictions endorse. Secondly, the case for mandatory rehabilitation is weaker than it may appear at first glance because it is anything but clear that and why the penological aim of rehabilitation justifies severe interferences of offenders’ rights. In any case, it seems that states could attain their legitimate forward-looking aims – preventing recidivism – by less restrictive means such incapacitation. Thus, compulsory rehabilitation may only be justified in exceptional cases. Rather, offenders should be offered a choice between neuro-rehabilitation and detention.

Age of Gray Matters: Neuroprediction of Recidivism

Kent A. Kiehl, Nathaniel E. Anderson, Eyal Aharoni, J.Michael Maurer, Keith A. Harenski, Vikram Rao, Eric D. Claus, Carla Harenski, Mike Koenigs, Jean Decety, David Kosson, Tor D. Wager, Vince D. Calhoun, & Vaughn R. Steele, Age of gray matters: Neuroprediction of recidivism, 18 NeuroImage: Clinical 813 (2018).

Abstract: Age is one of the best predictors of antisocial behavior. Risk models of recidivism often combine chronological age with demographic, social and psychological features to aid in judicial decision-making. Here we use independent component analyses (ICA) and machine learning techniques to demonstrate the utility of using brain-based measures of cerebral aging to predict recidivism. First, we developed a brain-age model that predicts chronological age based on structural MRI data from incarcerated males (n = 1332). We then test the model’s ability to predict recidivism in a new sample of offenders with longitudinal outcome data (n = 93). Consistent with hypotheses, inclusion of brain-age measures of the inferior frontal cortex and anterior-medial temporal lobes (i.e., amygdala) improved prediction models when compared with models using chronological age; and models that combined psychological, behavioral, and neuroimaging measures provided the most robust prediction of recidivism. These results verify the utility of brain measures in predicting future behavior, and suggest that brain-based data may more precisely account for important variation when compared with traditional proxy measures such as chronological age. This work also identifies new brain systems that contribute to recidivism which has clinical implications for treatment development. Read the full article.

Self-Control in Responsibility Enhancement and Criminal Rehabilitation

Koi, P., Uusitalo, S. & Tuominen, Self-Control in Responsibility Enhancement and Criminal Rehabilitation, J. Criminal Law & Philosophy (2017). https://doi.org/10.1007/s11572-017-9423-z.

Abstract: Ethicists have for the past 20 years debated the possibility of using neurointerventions to improve intelligence and even moral capacities, and thereby create a safer society. Contributing to a recent debate concerning neurointerventions in criminal rehabilitation, Nicole Vincent and Elizabeth Shaw have separately discussed the possibility of responsibility enhancement. In their ethical analyses, enhancing a convict’s capacity responsibility may be permissible. Both Vincent and Shaw consider self-control to be one of the constituent mental capacities of capacity responsibility. In this paper, we critically examine the promise of improving convicts’ capacity responsibility by neuroenhancements of self-control to see whether the special characteristics of the inmate population make a difference in the analyses. As improving self-control by means of neurointerventions seems plausible, we then ask whether it is or could be a justified measure in court rulings. We conclude that, even if there are cases in which neurointerventions were warranted in the context of the stated goals of the criminal court, i.e., decreasing recidivism and rehabilitating the offenders to the society, due to the range of individual variability in the constitution of self-control, the prescription of specific neurointerventions of self-control falls outside the scope of legitimate court rulings.

Moral Bioenhancement for Social Welfare: Are Civic Institutions Ready?

Shook JR and Giordano JJ (2017) Moral Bioenhancement for Social Welfare: Are Civic Institutions Ready? Front. Sociol. 2:21. doi: 10.3389/fsoc.2017.00021.

Abstract: Positive assessments of moral enhancement too often isolate intuitive notions about its benefits apart from the relevance of surrounding society or civic institutions. If moral bioenhancement should benefit both oneself and others, it cannot be conducted apart from the enhancement of local social conditions, or the preparedness of civic institutions. Neither of those considerations has been adequately incorporated into typical neuroethical assessments of ambitious plans for moral bioenhancement. Enhancing a person to be far less aggressive and violent than an average person, what we label as “civil enhancement,” seems to be quite moral, yet its real-world social consequences are hardly predictable. A hypothetical case about how the criminal justice system would treat an offender who already received civil enhancement serves to illustrate how civic institutions are unprepared for moral enhancement.

ETHICS

Neuroethics in Neurolaw: Exploring Notions of Duality and the Implications for Evidence and Ethics

Abstract: According to the U.S. Supreme Court’s Fifth Amendment jurisprudence, self-incriminating evidence that is not “physical,” such as your thoughts and your testimony, is protected (Schmerber v. California, 1966). The brain, if not the body, is safe—but is not the brain a part of the body?

The basic idea of mind-body dualism is that the mental and the physical, while equally real, are not able to be assimilated. A thread of dualism is evident in U.S. law (Fox and Stein, 2015). Recent advances in neuroscience, however, have influenced thinking on dualism and are precipitating changes in the realms of ethics and law. Specifically, it has been argued that the distinction between body and mind is fallacious (Farah, 2005) and that dualist notions in the law are obsolete (Fox and Stein, 2015). Current neuroscience technology seemingly allows for determinations of whether an individual’s thoughts indicate that her behavior is ethical or unethical, lawful or unlawful, and to what extent. These developments have led some, in turn, to sound ethical alarms concerning potential misuse of the methods.

In this paper, I argue that the dualist landscape has been poorly surveyed and the significance of neuroscientific advances for legal decision making mischaracterized. My claim is that, while brain scans have much epistemic power, they do not collapse all forms of mind-body dualism. Specifically, we do not have the potential for brain scans that yield proof but rather brain scans that yield new forms of evidence. As a result, the gains from neuroscience are less robust than what has been widely proclaimed, and the privacy concerns attendant to neuroscientific technology are less dire than what has been widely declaimed. Read the full article.

Neurobiology and Crime: A Neuro-Ethical Perspective

Abstract: Current neurobiological research in the field of criminology focuses on the neurobiological characteristics associated with antisocial behavior, the prediction of antisocial behavior later in life based on neurobiological risk factors, and the ways in which neurobiological factors interact with psychological and environmental risk factors. Although the use of neurobiological knowledge has the potential to make several criminal justice practices more objective and humane, it may involve practices that are challenging with respect to stigma, neuro-determinism, autonomy and mental liberty. Four main areas of interest can be identified where neurobiology plays or could play a role: (1) criminological research focused on understanding criminal behavior, (2) the (early) detection/prediction of and intervention in deviant behavior, (3) criminal proceedings: to assess responsibility and inform sentencing, and (4) forensic rehabilitation and treatment settings. In this paper, I discuss the main ethical dilemmas that arise when considering the use of recent neurobiological advances in these areas. Read the full article.

Candor, Zeal, and the Substitution of Judgment: Ethics and the Mentally Ill Criminal Defendant

John D. King, Candor, Zeal, and the Substitution of Judgment: Ethics and the Mentally Ill Criminal Defendant, 58 Am. U. L. Rev. 207
(2008).