Picking and Choosing: Inconsistent Use of Neuroscientific Legal Evidence

Joseph J. Avery, Picking and Choosing: Inconsistent Use of Neuroscientific Legal Evidence, 81 L. Rev. 941 (2018).

Abstract: The scientific study of the structure and function of the nervous system and brain, what today is called neuroscience, is an ancient undertaking. Yet, over the past few decades, advances in neuroscientific technology likely have been more significant than those from the previous millennia combined. As a result, the field has waxed in salience and in impact. Or rather, it has grown in potential impact, as scientists are just beginning to unpack the findings these new technologies are yielding and to apply them to various fields, including medicine and law.

It is on this latter nexus that this article focuses: how is neuroscientific evidence impinging or threatening to impinge the U.S. legal system, and how are courts addressing this? The answer to this question can be construed as dyadic. On the one hand, neuroscientific evidence is, quite plainly, scientific and technical evidence; accordingly, it is subject to the same vetting to which all such evidence is subject, with attention paid to relevancy, reliability, validity, false positives, and the standards promulgated in Daubert, Frye, and Federal Rules of Evidence 403 and 702, among others. Neuroscientific evidence also involves machine testimony, which raises difficult legal questions and of which jurisprudence remains unsettled. On the other hand, recent neuroscience unsettles seemingly settled philosophical issues undergirding the foundation of much U.S. law, including notions of free will, but also including matters such as what it means to self-incriminate, and whether a line can be drawn between physical and mental suffering.

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 Biology of Guilt: Neuroscience in the Courts

Beth Baker, The Biology of Guilt: Neuroscience in the Courts, 68 Bioscience 628 (2018).

Abstract: Neuroscience, especially brain imaging, is here to stay in the US legal system. That is the verdict of experts in the emerging field of neuroscience and the law. Tests such as PET (positron emission tomography) scans and MRI (magnetic resonance imaging) are being used to help assess a defendant’s competency to stand trial, determine the extent of brain damage in disability cases, prove insanity defenses, and reduce sentencing, among many other purposes.

Neuroimaging in Criminal Trials and the Role of Psychiatrists Expert Witnesses

Georgia M. Gkotsi, Jacques Gasser, & Valerie Moulin, Neuroimaging in criminal trials and the role of psychiatrists expert witnesses: A case study, 58 Int’l J. L. & Psychiatry (2018).

Abstract: Various neuroscientific techniques are increasingly being used in criminal courts causing a vivid debate on the way that this kind of techniques will and should be used as scientific evidence. The role of experts in this context is important, since it is them that analyse, present, interpret and communicate the results of these techniques to the judges and the jury.

In an attempt to contribute to the discussion about the role of the experts in criminal cases where neuroimaging evidence was introduced, we examined twenty seven cases from the US and Europe. Focusing on the role of experts and their presentation of neuroscientific evidence, we aimed to examine the extent to which neuroimaging data can contribute to the construction of a solid and more objective, “scientifically – based” case.

We found that neurobiological information introduced through experts’ testimony is generally used in order to demonstrate some physical, organic base of a psychiatric condition, or/and in order to make visible some brain lesion, (structural or functional), susceptible to have affected the capacity to reason and to control one’s impulses.

While neuroimaging evidence is often presented by the defence as a scientific method able to offer a precise diagnosis of the pathology in question, our case analysis shows that the very same neurobiological evidence can be interpreted in different – sometimes diametrically opposed – ways by defence and State experts. Conflicting testimony about the same empirical evidence goes against the hypothesis of neuroscientific techniques constituting “objective and hard evidence”, able to reach solid, scientific and objective conclusions.

Frequent conflicts between neuroimaging experts require the courts to deal with the resulting uncertainty. As the law changes with technology, it is necessary for legal professionals to train and be prepared for the new issues they may encounter in light of new developments in neuroscience, so that they become more vigilant as to the interpretation of neuroscientific data.

Psychiatry and Neurolaw

Drozdstoy St Stoyanov, Psychiatry and Neurolaw, 10 Balkan J. Phil. 27 (2018).

Abstract: The aim of this paper is to highlight the rationale behind the use of data from neuroscience, particularly neuroimaging, in psychiatric legal expert procedures and their interference with the mind-brain problem.The critical argument is that the employment of mental health evaluation of the defendants and/or witnesses as collected with clinical assessment methods in court proceedings should not be considered irrespective to the data from neuroscience. Essentially, neuroscience methods belong to the domain of nomothetic knowledge, whereas clinical evaluation methods in psychiatry belong to the domain of intra- and inter-subjective narratives. There exists an explanatory gap between those two groups of disciplines which concerns the ability to translate and integrate data across diverse methodological and terminological systems. Furthermore, it depends largely on the implicit positions in the mind-brain debate and the brain-to-behavior connections, which reflect on the professional and legal reasoning in terms of prioritizing certain solutions or approaches over another in the expert judgment. There are described those tacit positions adopted in the mind-brain debate by different traditions in psychiatry, with special emphasis on reductive and non-reductive forms of physicalism. In conclusion, a cognitive pluralist stance is adopted which sets priority for the supervenience theory of mind.

What Difference Do Brain Images Make in US Criminal Trials?

Valerie Gray Hardcastle & Edward Lamb, What difference do brain images make in US criminal trials?, Eval. Clin. Pract. (Forthcoming) (2018).

Abstract: One of the early concerns regarding the use of neuroscience data in criminal trials is that even if the brain images are ambiguous or inconclusive, they still might influence a jury in virtue of the fact that they appear easy to understand. By appearing visually simple, even though they are really statistically constructed maps with a host of assumptions built into them, a lay jury or a judge might take brain scans to be more reliable or relevant than they actually are. Should courts exclude brain scans for being more prejudicial than probative? Herein, we rehearse a brief history of brain scans admitted into criminal trials in the United States, then describe the results of a recent analysis of appellate court decisions that referenced 1 or more brain scans in the judicial decision. In particular, we aim to explain how courts use neuroscience imaging data: Do they interpret the data correctly? Does it seem that scans play an oversized role in judicial decision‐making? And have they changed how criminal defendants are judged? It is our hope that in answering these questions, clinicians and defence attorneys will be able to make better informed decisions regarding about how to manage those incarcerated.

The Possibilities and Perils of Neuroscience in Criminal Law by Austin McCullough, American Criminal Law Review (2017)

Abstract: The brain plays an integral role in criminal law, whether it comes to determining what a defendant was thinking at the time of a crime or what behavior a convict is predisposed to commit in the future. Neuroscience provides a potential avenue to better understand these mental aspects of criminal trials. As the scientific field continues to grow and change, courts should be careful about the way in which they use neuroscience evidence and what weight such evidence is given. Read the full article.

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.

Three Research Strategies of Neuroscience and the Future of Legal Imaging Evidence

Jinkwon Jun & Soyoung Yoo, Three Research Strategies of Neuroscience and the Future of Legal Imaging Evidence, 12 FRON. NEUROSCI. 1 (2018).

Abstract: Neuroscientific imaging evidence (NIE) has become an integral part of the criminal justice system in the United States. However, in most legal cases, NIE is submitted and used only to mitigate penalties because the court does not recognize it as substantial evidence, considering its lack of reliability. Nevertheless, we here discuss how neuroscience is expected to improve the use of NIE in the legal system. For this purpose, we classified the efforts of neuroscientists into three research strategies: cognitive subtraction, the data-driven approach, and the brain-manipulation approach. Cognitive subtraction is outdated and problematic; consequently, the court deemed it to be an inadequate approach in terms of legal evidence in 2012. In contrast, the data-driven and brain manipulation approaches, which are state-of-the-art approaches, have overcome the limitations of cognitive subtraction. The data-driven approach brings data science into the field and is benefiting immensely from the development of research platforms that allow automatized collection, analysis, and sharing of data. This broadens the scale of imaging evidence. The brain-manipulation approach uses high-functioning tools that facilitate non-invasive and precise human brain manipulation. These two approaches are expected to have synergistic effects. Neuroscience has strived to improve the evidential reliability of NIE, with considerable success. With the support of cutting-edge technologies, and the progress of these approaches, the evidential status of NIE will be improved and NIE will become an increasingly important part of legal practice.

Lying, Deception, and fMRI: A Critical Update, Neurolaw and Responsibility for Action

Michael S. Pardo, Lying, Deception, and fMRI: A Critical Update, Neurolaw and Responsibility for Action, in Neurolaw and Responsibility for Action: Concepts, Crimes, and Courts (Bebhinn Donnelly-Lazarov ed., 2018).

Abstract: This chapter discusses recent studies on fMRI-based lie detection. In Minds, Brains, and Law, Dennis Patterson and I examined the scholarly literature and judicial opinions on the topic, and we discussed several empirical and conceptual issues affecting the use of such evidence in legal settings. In this chapter, I focus on two conceptual issues and examine several studies that have been published since the publication of our book. The conceptual issues concern: (1) the distinction between deception and lying, and (2) the concept of lying itself (or the criteria for what constitutes a lie). As with the array of studies that we examined previously, the more-recent studies also face serious limitations because of these issues.

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.

Predicting Violent Behavior: What Can Neuroscience Add?

Abstract: The ability to accurately predict violence and other forms of serious antisocial behavior would provide important societal benefits, and there is substantial enthusiasm for the potential predictive accuracy of neuroimaging techniques. Here, we review the current status of violence prediction using actuarial and clinical methods, and assess the current state of neuroprediction. We then outline several questions that need to be addressed by future studies of neuroprediction if neuroimaging and other neuroscientific markers are to be successfully translated into public policy. Read the full article.

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,

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.

Mapping the Brain to Predict Antisocial Behaviour: New Frontiers in Neurocriminology, ‘New’ Challenges for Criminal Justice

Frederica Coppola, Mapping the Brain to Predict Antisocial Behavior: New Frontiers in Neurocriminology, ‘New’ Challenges for Criminal Justice, 1 UCL J. L. & Juris. 103 (2018).

Abstract: Neuroscientific research on the relationship between neurobiology and antisocial behaviour has grown exponentially over the last two decades. One of the most intriguing challenges that has started occupying the minds of scientists and legal scholars is the potential use of neuroscience-based methodology to predict future antisocial behaviour in forensic and justice contexts. While neuroprediction holds the promise of adding predictive value to existing risk assessment tools, its hypothetical use for forensic and justice purposes touches on some specific ethical and legal issues, in particular the threat it poses to offenders’ individual rights and civil liberties under the pretext of enhancing public safety. This article provides some arguments for overcoming these concerns. More importantly, it argues that neuroprediction should be viewed as an instrument to help criminal justice integrate current punitive policies and measures with socio-rehabilitative strategies, which could improve the treatment of offenders at risk without threatening their individual rights.

The Fifth Amendment: Self-Incrimination and the Brain by Marc Jonathan Blitz, Palgrave Studies in Law, Neuroscience, and Human Behavior (2017)

Abstract: This Fifth Amendment’s self-incrimination clause has been at the center of constitutional discussions over neuroimaging’s future. That it is not because it clearly would apply to neuroimaging – but rather because neuroimaging raises a easily formulated (albeit difficult to answer) Fifth Amendment puzzle: It seems to count as both of what are supposed to be two mutually exclusive categories in Fifth Amendment law, because it is both like a witness statement (or “testimonial”) and like physical evidence such as blood flow or other physiological processes. This chapter explores various solutions scholars have proposed to this puzzle, rooted in distinctive theories of the self-incrimination clause – and the unanswered questions each of these theories raises. It also emphasizes another point that has received less attention in discussions of self-incrimination and neuroimaging: idea that Fifth Amendment protection for our thoughts and other mental process should perhaps sometimes cover the biology underlying that thinking even when government plausibly claims it wants access to it for reasons other than inferring our thoughts or beliefs. Purchase access to the article.

Neuroscience Nuance: Dissecting the Relevance of Neuroscience in Adjudicating Criminal Culpability

Christopher Slobogin; Neuroscience nuance: dissecting the relevance of neuroscience in adjudicating criminal culpability, Journal of Law and the Biosciences, Volume 4, Issue 3, 1 December 2017, Pages 577–593,

Abstract: The usefulness of neuroscience in determining the blameworthiness of a particular criminal defendant is highly contested. On one side are those who argue that neuroscience is virtually irrelevant in criminal court or useful only as corroborating evidence of legally relevant impairment proven through other means. On the other side are those who contend that neuroscience will soon show, if it has not already shown, that most criminals have little or no control over their behavior. In between are those who recognize the tenuous nature of neuroscientific claims in criminal cases but nonetheless suggest that they can in some cases provide independent evidence relevant to excuse or mitigation.

This article takes issue with all three stances. The first two sets of claims are overstated, and the last type of claim is insufficiently nuanced. Neuroscience does have something to offer court determinations of criminal liability and punishment, but it is far from upending the criminal law’s basic premise that most choices to commit crime are blameworthy. At the same time, those who agree with this intermediate position have not done a particularly good job at clarifying how they think neuroscience can help. Any such clarification needs to recognize that there are many different types of neuroscience evidence and many different types of legal claims that it might address.

Unasked (and Unanswered) Questions About the Role of Neuroimaging in the Criminal Trial Process

Perlin, Michael & Rae McClain, Valerie. (2010). Unasked (and Unanswered) Questions About the Role of Neuroimaging in the Criminal Trial Process. American Journal of Forensic Psychology. 28.

Abstract: The robust neuroimaging debate has dealt mostly with philosophical questions about free will, responsibility, and the relationship between brain abnormalities, violence, and crime. This debate, however, obscures several important issues of criminal procedure to which little attention has as of yet been paid: an indigent defendant’s right of access to expert testimony in cases where neuroimaging tests might be critical; a defendant’s competency to consent to the imposition of a neuroimaging test; and the impact of antipsychotic medications on a defendant’s brain at the time that such a test is performed. This article considers these questions from the perspectives of both law and neuropsychology, and, from a clinical perspective, also focuses on identifying cases appropriate for referrals for neuroimaging studies, including preliminary testing based on neuropsychological assessment; understanding the importance of brain impairment as it relates to criminality and violence; establishing criteria for determining competency to consent to such tests, and the potential impact of medications on brain functioning when neuroimaging tests are conducted.

“His Brain Has Been Mismanaged with Great Skill”: How Will Jurors Respond to Neuroimaging Testimony in Insanity Defense Cases?

Perlin, Michael. (2009). “His Brain Has Been Mismanaged with Great Skill”: How Will Jurors Respond to Neuroimaging Testimony in Insanity Defense Cases? Akron law review. 42 AKRON L. REV. 885.

Abstract: The robust debate over neuroimaging has highlighted a series of law-and-policy questions dealing primarily with reliability, admissibility and availability. When we consider the topic that I will be addressing in this paper – the impact of this evidence on juror decision-making in insanity defense cases – we need to recalibrate our focus so as to incorporate other questions that are as essential (most likely, more essential) to the resolution of the underlying dilemma: (1) to what extent will such evidence – apparently, less inherently easy to falsify – have on jurors whose inherent suspicion of mental state opinion testimony is well-documented, (2) will this falsifiability issue even matter to jurors whose personal values/moral codes reject the motion of any non-responsibility verdict because it is dissonant with their heuristics-driven false ordinary common sense, (3) will there now be some shred of truth in one of the standard insanity defense myths (that the insanity defense is a rich man’s ploy); that is, will the rich and famous be able to disproportionately rely on neuroimaging testimony in their trials?, (4) to what extent will sanism and pretextuality drive juror behavior in such cases, and (5) what are the therapeutic jurisprudence implications of the answers to all of these questions? This presentation addresses, though it does not fully answer, all of these questions in the hopes that other legal scholars will be stimulated to consider them each in depth in the future.

‘And I Can See Through Your Brain’: Access to Experts, Competency to Consent, and the Impact of Antipsychotic Medications in Neuroimaging Cases in the Criminal Trial Process

Perlin, Michael. (2009). ‘And I Can See Through Your Brain’: Access to Experts, Competency to Consent, and the Impact of Antipsychotic 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.