Archive for the ‘Forensic evidence’ Category
We all know that neuro-imaging is not ready for courtroom persuasion yet, but did someone remember to tell the jurors? Apparently not–but maybe they already knew.
Are “pictures” of the brain so persuasive that they can sway juror decision making? Even though the credibility of the medical experts has to be factored in, many people believe that when you include brain scan photos (as opposed to bar charts or topographical maps for example) the viewer is more persuaded. Even though there isn’t a chance in the world that an average juror can make sense of the image.
So, the current researchers decided to look at the effect, if any, of neuroimages using a fact pattern of a capital murder case. They were trying to sort out whether it is useful to focus mitigation arguments on neuroimaging evidence, since it could “create the impression the defendant is ‘damaged goods’ and beyond repair.”
The researchers presented the facts of a murder along with evidence (included in nearly all capital trials) of the likelihood of future dangerousness and evidence about the psychiatric condition of the defendant. They divided participants into 3 conditions:
The first group was told the defendant was psychotic.
The second group was told the defendant was psychotic and was given the results of neuropsychological testing discussing damage to the defendant’s brain (specifically, the frontal lobe).
The third group was given the diagnostic information and the test results but also shown color photos of “structural and functional scans of the defendant’s brain” and given descriptions of likely consequences with this sort of damage to the brain.
The researchers expected that the more information participants were given, the less they would choose the death penalty IF the defendant was adjudged to be at low risk for future violence. And they were wrong.
When mock jurors were provided only a diagnosis, and were told the defendant had a high risk of future violence, they were overwhelmingly more likely to give a death sentence (65% voted for death penalty) than other mock jurors. When they were given additional information (either a psychological testing summary or the testing summary with neuroimaging evidence), their imposition of the death sentence dropped dramatically (down to 12% voting for death penalty). If jurors assessing these ‘dangerous’ defendants were given all three forms of information, the death penalty was selected only 8% of the time.
Oddly, low risk of dangerousness only affected those jurors who were only given the diagnosis (but no supportive test data or images). ‘Diagnosis only’ mock jurors assigned the death penalty about 17% of the time (down from 65%), while diagnosis plus testing mock jurors chose the death penalty about 21% of the time and mock jurors receiving all three types of evidence chose the death penalty about 14% of the time (essentially the same as the ‘high risk of violence’ condition).
The researchers concluded that with high risk for future violence defendants, both neuropsychological testing and neuroimaging evidence reduced the likelihood jurors would choose the death penalty. Rather than being ‘aggravating’, this additional evidence was truly mitigating in the case of the high-risk-to-violently-reoffend defendant.
Our view is that this is consistent with what is frequently seen in juror decision-making: Jurors are much more comfortable accepting a high-risk proposition if they are comforted that they have a valid reason for doing it. This is most clearly seen in the high risk group, where they needed to be assured there is ‘scientific evidence’ that the defendant was impaired, not merely that the defense found an expert willing to make that claim. It also suggests that in the population used in the study, there were about 15-20% who were in favor of the death penalty regardless of mitigating scientific evidence.
It’s important to note that the neuropsychological testing results mitigated almost as much as the testing results plus the brain pictures. The verbal description alone (or verbal picture if you will) persuaded jurors. The researchers say it is possible that any additional information pertinent to the defendant’s condition ‘personalizes’ the defendant for jurors and thus may prove mitigating. We go with the former idea, as it seems unlikely that a psychological test profile or a description of neuroimaging studies causes anyone to become more ‘personal’. The jurors simply want reassurance that they are working off more than one person’s opinion.
For the practitioner, this says you don’t need bells and whistles [like brain scans] to successfully mitigate. But you do need solid and scientific information, well-presented using language and examples jurors can understand. That testimony can save a life.
Greene, E., & Cahill, B. (2011). Effects of Neuroimaging Evidence on Mock Juror Decision Making Behavioral Sciences & the Law DOI: 10.1002/bsl.1993
If it’s true, we would then have favorite jeans posthumously. Would that be too cool or simply bizarre? Either way, it may soon be true! Scottish researchers are looking at ways to recover “fingerprint ridge detail and impressions from fabrics”. Doing so has been an elusive goal and the success has come with a technique called vacuum metal deposition (VMD). Basically, gold and zinc is used to recover the fingerprint mark.
Joanna Fraser, a forensic sciences researcher at the University of Abertay, Dundee, said: “The research uses fine layers of metals to display fingerprints people may have left on fabrics, something which is far harder to do with soft surfaces. The technique has been around since the 1970s and is used on many surfaces but was never widely used on fabrics.
“We take these fabrics, place them in a vacuum chamber, then heat up gold to evaporate it and spread a fine film over the fabric. We then heat up zinc, which attaches to the gold where there are no fingerprint residues. This helps reveal the fingerprint — where contact has been made we see the original fabric, where there was no contact we’re left with the grey colour of the metal film.”
She added: “One way of explaining it is like a photographic negative, where colours show up as their opposites. Here the fingerprint ridges show through as clear fabric, but where there are no ridges we see the distinctive grey colour of the metal.
“Previously it had proved difficult to reveal a clear fingerprint on fabric, but we’ve shown that this is now possible. This is great, but the challenge is to develop this further and confirm its effectiveness.”
So, for example, if your favorite jeans had two handprints on the butt—maybe you were shoved off the balcony as opposed to jumping. Or—if scientists find handprints or fingerprints on your favorite jeans—they know to target those areas for further DNA evidence.
There is nothing like a good pair of jeans. Overall, though, I can’t say I’m going to sleep better for knowing this.
Fraser J, Sturrock K, Deacon P, Bleay S, & Bremner DH (2010). Visualisation of fingermarks and grab impressions on fabrics. Part 1: Gold/zinc vacuum metal deposition. Forensic science international PMID: 21126838
We’ve tried to keep up with the many studies/articles on neurolaw. We started tracking these when it was a new concept. It has gotten to be a bigger challenge as the pace has accelerated, but the importance of keeping up with this is growing along with the research pace. Brain scans are in. Brain scans are out. It happens faster than we can type. Just in the past few months…
- Lie-detection and neurolaw: do brain scans have a place in the courtroom?
- Brain Scan Evidence Rejected by Brooklyn Court
- fMRI lie detection and the Wonder Woman problem
- Can Brain Scans Detect Lying? Exclusive New Details From Court Hearing
Thankfully, two law professors are offering pretty straightforward information to help us weed through what makes sense and what doesn’t as more and more information on brain scans and neurolaw comes forward. Both pieces are available at no charge via SSRN:
1. Cherry-Picking Memories: fMRI-Based Lie Detection in the U.S. Courts by Jonathan R.H. Law.
This article discusses fMRI-based research techniques in the context of US federal courts. The fMRI is seen as providing data that is more prejudicial than probative. The authors then propose an approach to the Daubert standard and recommend that US courts wait a while before incorporating fMRI data into evidence.
2. Brain Imaging for Legal Thinkers: A Guide for the Perplexed by Owen D. Jones, Joshua Buckholtz, Jeffrey D. Schall, and Rene Marois.
This article provides an introduction for legal professionals to brain imaging. It describes the techniques and methods used by fMRIs and then offers a tutorial on reading and understanding a brain-imaging study. Finally, the articles shares information on how to avoid misunderstanding brain images and how to recognize when others are misusing brain images in legal contexts.
And, a third piece has been put out entitled: A Judge’s Guide To Neuroscience: A Concise Introduction with multiple authors. This one is put out by the Law and Neuroscience Project and is written especially for judges. You may find this one the most user-friendly in terms of vocabulary but all three are worth a read if you would like to understand the shifting sands of the neurolaw area a bit better.
Read them. We will too. Then come back for more updates on Neurolaw.
Two recent legal events (an arrest and the overturning of a conviction) have resulted in a lot of commentary by aggravated citizens. Those who have served on juries tend to have more positive things to say about jury service than those who have never served—but the reality is there is much in the media to tick potential jurors off. And of course, the vast volume of sound verdicts by jurors are simply not as much fun for the press to cover, so… Recently, two decisions have struck chords with jurors and resulted in them expressing a perspective that something is seriously wrong with our criminal justice system.
The Warren Jeffs retrial
Warren Jeffs (known as the “prophet” of the Fundamentalist Church of Jesus Christ of Latter-day Saints—aka FLDS) was convicted in September, 2007 of coercing a 14 year old girl into marrying her 19 year old cousin. Jeffs was charged with two counts in being an accomplice in the rape of a teenage girl. Many doubted Jeffs could be convicted in Utah. But convicted he was. Now,as of July 28, 2010, Jeffs’ conviction has been overturned by the Utah Supreme Court on a technicality. In less than a week, there are more than 1600 comments about the ruling. Most of them are from ticked off citizens who think this should never have happened. Stories like this one, regardless of their legal merit, enrage the public.
The Grim Sleeper arrest
On July 7, 2010, Los Angeles Police arrested a man they believe to be a serial killer dubbed the ‘Grim Sleeper’. They charged Lonnie Franklin, Jr. with at least 11 murders between 1985 and 2007. That first day, it was reported that:
“Franklin’s arrest was the first successful use of a DNA investigative tool known as “familial” searching in California. Familial searching, approved by Atty. Gen. Jerry Brown at the urging of Cooley and other prosecutors, allows investigators to pursue partial genetic matches to crime scene evidence when the suspect’s DNA profile is not in the state database.”
Later on July 7, 2010, an article was published detailing how LAPD had followed the DNA trail to the alleged perpetrator. And the next day (July 8, 2010) questions began to arise about whether it was fair to use family DNA to catch a killer. Before another week went by, the debate had been framed as either a tool to protect communities or an invasion of privacy smacking of racial profiling. And comments show people are unhappy on either side of the debate. Those who think it makes sense to allow ‘familial searching’ point to the reality that it may be the only way to catch dangerous criminals. Those who think it goes too far say relatives who are innocent can be dragged into situations over which they have no control and no involvement.
The lesson for us in this is to make sure and explain ‘why’ the rules are important. Explain ‘why’ they can’t use the internet to research the case, and explain how reliable (or not) forensic evidence is. To be optimally persuasive, you have to educate, inform, and bring jurors along with you in the story. It won’t keep things from happening that may rub jurors the wrong way. But it gives them a framework to understand “why” and while that framework may not help them feel good about their decision, it comforts them in their distress.
For some time now, there have been concerns about the CSI Effect on our juries. In short, this is a belief/fear that potential jurors who watch television shows such as the CSI franchise will presume real labs can produce the same sort of evidence—and anything that falls short of that causes reasonable doubt. Litigators have lived in fear of the CSI Effect despite rising evidence it may actually be an urban (and rural!) litigation myth.
In fact, a recent study shows us that there may well be decreasing trust in the institution of science in this country. Miller-McCune is a terrific publication. Recently, they describe an ESP study with findings that may surprise you.
“Newly published research on belief in ESP suggests a public disregard for — and perhaps even hostility toward — the scientific consensus.”
Researchers had subjects watch a woman who seemed incredibly lucky or perhaps to have some sort of sixth sense do inordinately well at a card-guessing game. (In truth, she had been told the answers, but subjects did not know that.) Then they were told about ESP and given varying information as to how accepted/endorsed ESP was by the public and by scientists. Researchers expected those told that ESP had widespread support to be more likely to see the woman card-reading as displaying that ability. And that was true. But they weren’t expecting to see scientific consensus rejected. And they did.
Those told ESP had widespread popular support were likely to express agreement with that consensus, regardless of the scientific consensus. But among those who were informed that only one-quarter of the population believed in the phenomenon, support was actually higher when science gave it a thumbs-down.
We saw this first-hand in a recent focus group. A mock juror expressed the belief that a plaintiff parent’s panic as her child deteriorated while in the hospital likely made the decline worse or perhaps even caused it to happen. According to the juror, if she had stayed calm things probably would have gone better. When told there would be no evidence presented to support that conclusion, the juror said “Well, I still think so….”. Pew Research has seen it, too—a 2009 poll found that 16% of Americans believe in the “evil eye” (the belief that certain people can cast curses or spells that cause bad things to happen). And although we haven’t seen any evidence, a portion of those who believe President Obama was not born in America might well think he is an alien. As in… Mars.
So be careful what you say, and what analogies you use. Consider objecting to loose characterizations and metaphors by opposition counsel. Jurors don’t always hear things accurately. People read documents imperfectly. Their attention comes and goes. I might now find that I am being quoted across the e-universe as believing that our President is a Martian. I risk being attached to this absurdity this as a selfless risk for the benefit of our readers. So keep in mind that reckless distortions are not a joke, and it doesn’t take much to set confusion in motion.
“Klaatu barada nikto”