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Archive for the ‘Forensic evidence’ Category

normal brain criminal brainWe’ve written about neurolaw fairly routinely here and recently Science Magazine took a look at what they call “the growing use of neurobiological evidence in criminal trials”. In our own experiences with pretrial research, mock jurors are not often accepting of “my brain made me do it” defenses and will roll their eyes and sometimes openly mock the defense claims. This exemplifies the uphill battle that neurobiological defenses face, but they can succeed. There are increasing numbers of cases with such defenses presented in court. A recent article in the Journal of Law and Biosciences reported that in 2012 more than 250 cases involving “my brain made me do it” defenses were brought to trial and this was more than double the number of similar claims made in 2007. Science Magazine offers this case summary to illustrate:

In 2008, in El Cajon, California, 30-year-old John Nicholas Gunther bludgeoned his mother to death with a metal pipe, and then stole $1378 in cash, her credit cards, a DVD/VCR player, and some prescription painkillers. At trial, Gunther admitted to the killing, but argued that his conviction should be reduced to second-degree murder because he had not acted with premeditation. A clinical psychologist and neuropsychologist testified that two previous head traumas—one the result of an assault, the other from a drug overdose—had damaged his brain’s frontal lobes, potentially reducing Gunther’s ability to plan the murder, and causing him to act impulsively. The jury didn’t buy Gunther’s defense, however; based on other evidence (such as the fact that Gunther had previously talked about killing his mother with friends) the court concluded that he was guilty of first-degree murder, and gave him a 25-years-to-life prison sentence.

This is precisely the sort of reaction we have come to anticipate from mock jurors. You cannot “see” the impact of mental illness or head injury, so mock jurors look for evidence to support guilt despite allegations of brain injury or mental illness. Yet, as pointed out in the Farahany article in the Journal of Law and the Biosciences, the increasing use of “my brain made me do it” defenses means the defense is likely here to stay and neuroscientists need to enter the picture to help us all make sense of the defenses and to know whether the defense is legitimate or if the science cannot yet support the defense claims.

Neuroscientists should be at the forefront of this conversation—as experts in criminal courtrooms, in public presentations, through accessible writing for public audiences, or by filing amicus briefs in legal cases where neurobiological evidence is at issue. Neurobiological evidence has profound implications for some of the most significant decisions we make in law and policy. It’s time we better understand how it’s being used and start to address how it may be better used in our criminal justice system.

From a litigation advocacy perspective, we think this makes a lot of sense. When we have had cases involving illegal or grossly inappropriate behavior following a head injury, it has been very helpful for our jurors to understand the science of what areas of the brain control behavior and were damaged by some sort of trauma. Even when they do understand basic brain function though, the evidence is seen as something for which to have empathy but our mock jurors want to fall back on individual responsibility and believe the defendant should be responsible for behavior.

The implications of the tragedy (both the brain injury of the accused and the victims of their aggression) is too distressing for many people to really accept. If jurors want certainty in life, then the prospect that there are people walking the streets looking mostly normal, who are yet subject to intense, violent outbursts is too upsetting. There is a fear that if we excuse behavior based on genes or brain injuries, we can never feel safe again.

For the time being, the challenge will be to find jurors who can tolerate the uncertainty of life, and the potential that head injuries and biochemistry can turn Dr. Jekyl into Mr. Hyde. Until the defense can come up with a way to help jurors hearing “my brain made me do it” defenses feel safe excusing a defendant, the neurobiological defenses will likely continue to be largely ineffective.

Farahany, N. (2016). Neuroscience and behavioral genetics in US criminal law: an empirical analysis Journal of Law and the Biosciences DOI: 10.1093/jlb/lsv059

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2016 storytelling1Every once in a while, I read something and think, “I could have written that!” and today it happened again. There is a deceptively simple blog post over at the Scientific American site that is actually a wonderful treatise on how to bring life to something complicated and esoteric so that people will actually understand and even care about what you are saying.

You likely remember Alan Alda from the TV show MASH but may not know that he has quite an interest in science and has spent a great deal of time and effort helping scientists figure out how to tell their stories of discovery in an engaging way. The blog post we are pointing you to today is written by a theater professional who works with the Alan Alda Center for Communicating Science but we think it’s a post easy to apply to high-tech patent or IP cases or other cases about an esoteric concept, a complex process, or medical mysteries that do not involve the living (as is the case with the upcoming blog post). .

The post tells the story of a scientist who’d won a contest for discovering something novel and significant but as he told the story of the discovery, it was dry and filled with jargon. This brief blog post shows how the scientist was helped tell a story that grabbed the emotion of the listener and you can even see before and after videos of the story itself.

Here’s the blog post: How to tell an engaging story of scientific discovery.

And here is the before and after video (with the differences in video quality explained in the blog post itself).

We like to say “every story is about people” and based on the blog post linked to above and the video showing you how the story presentation was changed—it looks like Alan Alda agrees.

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CRISPRThose of us who work in patent litigation are used to strange bedfellows, but this is irony at its best. You may have heard about CRISPR as it’s been all over the media with hopes and promises and endless controversy. Essentially, it is a way to edit the genome to remove hereditary diseases caused by mutated genes. Here is a nice CRISPR primer from Gizmodo.

The emergence of CRISPR has caused multiple concerns about “designer babies” and what happens if the CRISPR operator snips a bit too much out of someone’s DNA. The international symposium on CRISPR (held in December, 2015) concluded they need to be open to studying the issue further. “

The symposium final statement asserts that germline gene editing for human reproduction — that is, genetically altering sperm, eggs, or embryos and initiating a pregnancy with them — has not been shown to be safe or effective, and that for now “it would be irresponsible to proceed.” Nor should any such effort be made, it says, until “there is broad societal consensus about the appropriateness of the proposed application.”

If you are still wanting clarity on how all this works, you can also watch this 4 minute video explaining CRISPR from MIT.

In the meantime, there is a big fight going on as to just who invented CRISPR. A well-regarded scientist recently wrote an article on the history of CRISPR and has been attacked for trying to cut women out of the picture as well as not disclosing conflicts of interest. The invention has been tied up for years as researchers argue about who got to the USPTO first. Now, like King Solomon and his decision to cut the baby in half so each “mother” could have part of it, the USPTO has decided they will decide using an “interference law” already expired but in place at the time the patents were filed. Here’s what WIRED magazine says in the article:

The US Patent Office will resolve a dispute over one of the hottest biotech breakthrough of the decade, the genome-editing technology Crispr/Cas9, through an arcane proceeding that technically should no longer exist. Because the disputed patents date back to just before a new law took effect in 2013, the patent office will work out who gets credit for inventing Crispr via a so-called interference proceeding—probably one of the last such proceedings ever.

It is the sort of dilemma we can imagine causing high distress for mock jurors. Here is technology that could result in removing inherited and often deadly disease from ever developing. On the other hand, there are those who insist this technology will result in “designer babies” and that scientists cannot be trusted to behave ethically around such hot-button (and financially lucrative) issues. These are case themes that would result in strong feelings all the way around. Yet, there was collaboration amongst the scientists and we think our mock jurors would say they should simply share the wealth. And then there are those who are adamantly opposed to ownership of genetic technology…

Even in dry and often esoteric and confusing cases, ultimately the story is always about people. In this case it is the scientists on both sides of this dispute, and their respective compelling personal stories. This is one we will continue to follow, and we encourage you to follow the links in this post and educate yourself on the hope and the drama this high-tech invention is prompting.

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steven-avery-1024Last year over the holidays, I binge-listened to Serial (the podcast story of Adnan Syed) and apparently it is a new holiday tradition—because this year I ended up binge-watching a 10-hour documentary series (from the Defense perspective) called Making a Murderer. I won’t link to the show since there are spoilers everywhere but it proves yet again that fact is stranger than fiction.

This is the story of Steven Avery, a young man with an IQ in the 70s from a rough and tumble family with a bad reputation in Manitowoc, Wisconsin. Somehow, despite the fact there was no physical evidence tying him to the crime, he was convicted of sexual assault and spent 18 years in prison until DNA testing evolved to the point that the Wisconsin Innocence Project took on the case. He was exonerated while another prison inmate was charged with the crime. So he is out of prison and says he is happy to be free and left all of his anger inside prison. He filed a wrongful conviction suit against Manitowoc County and then even worse things begin to happen.

His family owns an auto salvage yard and 40 acres of land. One day a woman came to photograph a car Steven Avery’s sister is trying to sell. She disappeared, and suddenly her vehicle was discovered on the Avery’s land with Steven Avery’s blood in it and her bones are discovered in several burn pits on the Avery property (with the primary burn site right behind Steven’s house). The evidence is largely circumstantial but, once again, he is convicted and returned to prison, where he remains today. Along the way, his 16-year-old nephew (who is learning disabled with an IQ of 70) was interrogated alone for hours and gives information (fed to him by the investigators as we see in the film) that he participated actively in the crime along with his uncle.

What is fascinating about this case is that we are privy to the defense attorneys reactions and case strategy and to the shocking machinations of the Manitowoc police and the Calumet County DA (disgraced and no longer in office after a 2010 sexting scandal in which he referred to a domestic abuse victim as a “hot nymph” and himself as her “prize”—remember that thing about fact being stranger than fiction?). While, as with Serial, I was unsure at the end if the defendant had murdered anyone. The criminal justice system is shown as flawed and the possible consequences that can befall you when you are accused of a crime are terrifying.

I was initially drawn to this documentary because of the wrongful conviction and false confession angle since we have done work in that area and it is frighteningly easy to lean on defendants and get confessions out of them—especially when they are young and not very bright. It is yet another well-done project that shows the underbelly of the criminal justice system and the problems of poor people and the mentally impaired. In the final segment, there is a group discussion among the attorneys that represented Steven at various points in time about whether they think he has any hope for a second exoneration and there is a quote by one of his defense attorneys (Dean Strang) that took my breath away. Watch for it. It’s about how part of him really, really hopes Steven Avery is guilty since the alternative is just too frightening to contemplate.

This is a documentary well worth watching and knowing about as it is already becoming “must-see-TV”. Just be prepared knowing you won’t want to stop watching. The first episode has also been uploaded to YouTube.

And once you are done with this, season two of Serial has premiered and it is focusing on the story of Bowe Bergdahl.

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Happy-Seniors_1000x502How about trying this: Make it interesting. Despite stereotypes that older adults may not have the intellectual or memory capabilities to serve as good jurors in complex cases, reaching the older adult juror appears to rely on the same principle we apply to jurors in general: engage them. In fact, some new research says that when they find it interesting—they remember more than younger people do even a week later. In other words, there is really no reason to assume older jurors won’t keep up. If they are curious and you present your case in an interesting way—you will find them invested and engaged as jurors.

Here’s a brief description of the research:

Researchers used 24 older adults (13 female/11 male with an average age of 72.9 years) and 24 younger adults (16 females/8 males with an average age of 20.3 years). The participants were recruited from the Los Angeles area—both in the community and through UCLA. They all had good self-reported health ratings and the ability to repeat a series of numbers from memory (known to psychologists as the Digit Span test) was not significantly different between the younger and older participants.

They were asked to respond to a series of “60 obscure trivia questions”. First they answered the questions and rated how confident they were in their response. Immediately thereafter, they were shown the correct answer for 6 seconds and then rated how interesting they thought it was now that they knew the correct answer. Finally, they were asked how likely they thought it was that they would remember the answer to the question.

After this, the participants were involved in an unrelated task for an hour and then given an unexpected “quiz” on half of the “obscure trivia questions”. After a week, they were contacted by phone and were tested again on the other half of the questions.

What the researchers found was unexpected (at least unexpected if you think the memory of older adults is faulty).

Whether you are young or old, if you find material interesting, your memory for the material is enhanced. (There was no age-related difference in performance on memory for the trivia questions.)

Younger adults scored a little better on the hour delay than they did on the week delay when it came to recalling the answers to the trivia questions. However, for older adults, the effect was reversed. Older adults remembered more on the week after telephone follow-up than they did in the initial hour delay task. (The researchers think this may say something about the importance of being interested in a topic for older adults to retain the information a week later.)

While these were healthy and non-memory-impaired older adults, there was no sign of memory gap between younger and older participants. And in truth, our experience tells us that most older adults with health issues that might impact their ability to see/hear, their energy, attention, fatigue, pain, et cetera, are not shy about discussing them in voir dire if asked.

What that means for litigation advocacy is that memory and recall is likely not a function of the individual juror but the quality (engaging or not) of the case presentation in court. You can not only rely on older jurors to engage and invest (and thus remember), you can rely on them as much (and perhaps more) than you can rely on younger jurors. We have often seen this in our pretrial research. We look for curiosity and involvement in the world today. We’ve had long-retired bankers who were able to explain banking practices to younger jurors who did not believe attorney presentations of fact. We’ve had long-retired teachers and college professors help to organize how a presentation unfolds for maximum understanding. We’ve had a retired African-American male defuse racial tension during mock deliberations with grace and good humor.

Whether a venire member will be an attentive juror isn’t about age, it’s about whether they find the presentation interesting and engaging.

McGillivray, S., Murayama, K., & Castel, A. (2015). Thirst for Knowledge: The Effects of Curiosity and Interest on Memory in Younger and Older Adults. Psychology and Aging DOI: 10.1037/a0039801

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