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brain pornIt’s been a while since we’ve done an update on neurolaw in the courtroom. The idea that pretty and colorful pictures of the brain (aka fMRIs) can give us a window into motivations, intent, and the creepiness of others captures our imagination. New research though, cautions us that perhaps (like the vast over-estimations of the CSI Effect) we’ve been a bit too imaginative about the impact of what is often called “brain porn” on our jurors.

Why is it called ‘brain porn’? Because the pretty and colorful pictures shown are believed to be powerfully seductive to jurors–it’s science, after all! NPR recently wrote about a series of studies (new and forthcoming) that say perhaps the tide has changed and people are now more suspicious (as opposed to the initial thrill) by what we can really learn from those neuroscientist’s pretty pictures. It’s called “neuro-skepticism”.

Back in 2008, two (now) famous studies told us that when you show people photos of fMRI scans, that information is more powerful than a bar chart showing actual data counts (McCabe and Castel, 2008). The second (Weisberg, Keil, Goodstein, Rawson & Gray, 2008) essentially said that poor explanations of varying psychological phenomena were seen as more convincing when accompanied by neuroscience information that was irrelevant to the explanation. (And this is a reason you have to keep reading the current research rather than relying on old research that had a finding you think important. Times change! And so do reactions of people to things like the pretty pictures generated by the fMRI.)

Flash forward to 2013:

“In one set of studies, authored by Hook and Farah and published in the September issue of the Journal of Cognitive Neuroscience, people judged research summaries that included fMRI images no more surprising, innovative, worthy of funding, or illustrative of good scientific reasoning than summaries accompanied by other images, such as photographs associated with the summarized research. (Hook and Farah’s initial experiment did find that fMRI images increased people’s ratings that the research summary was interesting, but this small effect wasn’t replicated in their subsequent experiments.)

Another set of studies, authored by Schweitzer, Baker, and Risko and forthcoming in the December issue of the journal Cognition, found that neuroimages only boosted assessments of scientific reasoning under very particular conditions. When participants read two fake research summaries that both involved flawed reasoning, the second was perceived to be better if it was the only one of the two stories to contain a 3-dimensional fMRI image, suggesting that something about the comparison between (poor) studies that did and did not involve brain images led to an advantage for the former.”

In other words, the seductive allure of the colorful brain images appears to have waned. The effect is now likely neither particularly powerful or persuasive. That’s another way of saying that the neurolaw craze may have gone the way of the CSI Effect and is now much ado about nothing. No longer novel. No longer an expectation. What they do say that is particularly important for litigation advocacy is this:

“Anything that smacks of hard, objective science might be enough to fool people’s judgments when more effective ways to assess scientific quality aren’t readily available, either because information is limited or the individual lacks relevant expertise.”

Note that quote is not really about either neuro-images or neuroscience. Instead it is about something familiar to us all. When opposing counsel puts up information that sounds important, intelligent, and scientific, you need to educate jurors on how to understand it differently and how other experts might beg to differ with their conclusions. Too often jurors are stuck with either believing one presentation that they don’t really understand, or another view that is equally incomprehensible. So they end up judging the messenger instead of the message, which includes demonstrative images and data transformations (like neuro-images). And we choose to blame the ‘stupid gullible jurors’ who are left with the responsibility of trying to find the truth in the dark.

We’ve seen highly technical information presented effectively a number of different ways, but perhaps most often, it’s done through the direct examination of a well-prepared expert who is relatable; a person jurors experience as being respectful and not condescending while also teaching them what they need to know to do their civic duty.

Recently, we saw it very effectively done by showing jurors an educational (and brief) video found on YouTube (seriously) that quickly and succinctly explained a very complicated process in a way everyone in the room understood (and they were thrilled to be able to ‘get’ why this was such an important issue). Those mock jurors were grateful to Defense counsel for teaching them something they saw as critically important for their decision-making in the case. (And their gratitude was evident in their increased receptivity to his case throughout the remainder of that trial.)

You can do it with days and days of eye-glazing testimony from various experts. Or you can do it relatively efficiently with a really good expert witness who understands the goal of his or her testimony is to teach the jurors important information clearly and concisely. And you can maybe even do it with a YouTube video to guide the expert direct examination. We know (through very painful and mind-numbing experience) which version jurors prefer.

For the fourth year in a row we have been honored with recognition from the ABA via inclusion in their 2013 list of the Top 100 legal blogs in the country. We work hard to blog consistently even when inundated with work and would appreciate your vote for us at the Blawg 100 site under the LITIGATION category. You will have to register your email just so you can’t vote 47 times. There are many worthwhile law blogs on this list so take some time to peruse. Thanks! Doug and Rita

Hook CJ, & Farah MJ (2013). Look again: effects of brain images and mind-brain dualism on lay evaluations of research. Journal of Cognitive Neuroscience, 25 (9), 1397-405 PMID: 23879877

Schweitzer NJ, Baker DA, & Risko EF (2013). Fooled by the brain: re-examining the influence of neuroimages. Cognition, 129 (3), 501-11 PMID: 24041836

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psychopath fmri 2013Recently, we wrote about how risk assessment measures do not work on the psychopath. So it seems only fitting we summarize a new article that explains psychopathic behavior using fMRI scans that purport to show how the defendant is not in control of his behavior because “his brain made him do it”. This is an article on whether we should allow the death penalty to be applied to the psychopath. While they don’t say that the convicted psychopath should not go to prison, there are some, according to this writer, saying “a psychopath’s personality neither allows him to care about others nor have empathy for his victims; therefore, juries should not punish a psychopath by imposing the death penalty”.

If you are not familiar with the literature on psychopathy, this article offers a good (and a little scary) summary of psychopathy and the behaviors exhibited by the psychopath. This is not a minimization of the failings of the psychopath–it is rather a summary of the literature on both criminal psychopaths and what the author calls “successful psychopaths” who live among us: “Some psychopaths function reasonably well–as lawyers, doctors, psychiatrists, academics, mercenaries, police officers, cult leaders, military personnel, businesspeople, writers, artists, entertainers….”.

Having made us question nearly everyone around us, the author then describes the various functional brain deficiencies seen in the psychopath (e.g., impaired impulse control, decision-making, and planning; lack of empathy and inability to take other’s perspectives; impaired emotional processing and lack of fear conditioning; among others). She also describes the structural brain abnormalities often present–which leads to the conclusion reached by a current popular singer, psychopaths are “born this way.” There is much disagreement in the research on structural abnormalities in the brain, however, and not everyone with the structural abnormalities in their own brain, is a psychopath. There is apparently a very complex relationship between the brain structure and psychopathic behaviors.

Neuroimaging techniques have been in use for some time now in research on the brains of psychopaths. The author describes the work of Dr. Kent Kiehl (perhaps best known among those working in this area) with fMRIs and the brains of psychopaths, as well as a few lesser-known researchers. fMRIs themselves have been at the core of controversial “his brain made him do it” defenses. The danger, say critics, is that participants view the lovely and brightly colored images and believe the colors really do represent the emotions and thoughts in the brain of the person being scanned. Most neuroscientists say the fMRI is really not ready for courtroom use (and most judges agree). The challenge, says this author, is proving “brain abnormalities identified by the scan actually correlate with psychopathic traits and behavior”. The question remains, do the brain abnormalities cause psychopathy or does psychopathy cause the brain abnormalities detected by the scans? The well-known “dead salmon fMRI test subject” study is discussed as a means of “exposing some of the problems associated with fMRI and brain disorders such as psychopathy….the data, while certainly not useless, is also fallible and tricky”.

The author then returns to Dr. Kiehl who says, “the legal system should treat psychopaths ‘like people with very low IQs who are not fully responsible for their actions’ because psychopaths have low emotional IQs”. Others, many jurors included, see the behavior of psychopaths as chilling and the author believes that “convincing a jury that a defendant’s psychopathy is a mitigating factor might prove difficult”. Multiple studies, according to the author, have shown that mock jurors view the psychopath more negatively than nonpsychopathic criminals and punish them more severely.

In conclusion, the author acknowledges “the deck is largely stacked against attorneys representing psychopathic offenders at death penalty sentencing hearings”. Still, she says, “the positive impact that a neuroscientist’s testimony coupled with a colorful fMRI scan might have on a death penalty jury is a defense strategy worth pursuing”. She also recommends that prosecutors prepare for a detailed cross-exam of this testimony with an eye to discrediting it, and that judges ensure jurors are not confused or misled by the fMRI images.

Overall, the article is a good overview of the literature–it doesn’t cover everything but it certainly hits the highlights, demonstrates the frightening behavior of the psychopath, and raises the question of whether we should apply the death penalty sentence to someone whose brain appears to be abnormal, and whose criminal behavior may be related to that abnormality. It’s a good question. Not as emotionally compelling as the fear and terror often elicited by hearing the specifics of a psychopath’s crime, but certainly a good question.

Phillips, KD (2013). Empathy for psychopaths: Using fMRI brain scans to please for leniency in death penalty cases. Law and Psychology Review.

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Dexter murdererNo, this isn’t one of those conversation starters for dinner table conversation although you can feel free to use it as such. Actually, it would likely go better with after dinner drinks. It’s a bit too daunting for dinner.

It’s long been advised (at least in forensic psychology circles) that when it comes to staying alive, you really want to steer clear of any psychopath with a low IQ who is abusing drugs and/or alcohol. It just isn’t going to end well. That was more common wisdom though (provided to those who wondered what the best policy was when dealing with unintelligent, drunk psychopaths) and now (ta-da!) we have actual research to prove it.

Researchers at Northwestern, DePaul and the University of Illinois at Chicago examined 77 inmates (90% male, 68% African-American, average age of 32 with a range of 16 to 67 years, and an average of 10.5 years of education) who were incarcerated in Illinois and Missouri. They sorted these inmates (who had either been charged with or convicted of the murders of 137 different people) into two groups: the affective/impulsive group and the premeditated/predatory group using Meloy’s forensic criteria (included in the article’s Appendix) related to psychopathy. The authors further define the group assignment as follows:

Predatory/Instrumental violence is “a planned, purposeful, and primarily cognitively derived act, whereas Affective/Impulsive violence refers to reactive, immediate, and primarily emotionally derived acts”.

Every inmate tested had been referred by their attorney or by the court for neuropsychological evaluation related to fitness to stand trial, criminal responsibility, mental retardation or neuropsychological abnormalities. The referrals were made across all phases of trial and all evaluations were completed between 2000 and 2007. Only one inmate was eventually found to be NGRI (not guilty by reason of insanity) by the court. The researchers were interested in examining the neuropsychological and intelligence differences, if any, between these two groups of both accused and convicted Defendants. All inmates participated in a clinical interview and completed a neuropsychological test battery. (For those interested in such things, the test battery included the Wechsler IQ test [WAIS-III]; subtests of the Wechsler Memory Scale, Third Edition; California Verbal Learning Test, Second Edition; Wisconsin Card Sorting Test, Conners’ Continuous Performance Task II, the Trail Making Test, the Stroop Color and Word Test, and the Controlled Oral Word Association Test. In short, they took a lot of tests.)

Here is what the researchers found upon comparing the two groups:

Affective/Impulsive Defendants were younger, less educated, more likely to be African-American, more likely to have a history of substance abuse (93% to 76%) or developmental disorders and less likely to have a history of psychiatric diagnosis or personality disorder than were those Defendants in the Predatory/Instrumental group.

Affective/Impulsive Defendants had lower overall IQ scores (79, in the Borderline Range) while Predatory/Instrumental Defendants scored in the Average Range (93).

Affective/Impulsive Defendants had lower overall memory retention, lower scores on attention and task completion, and poorer face recognition.

Affective/Impulsive Defendants had lower problem-solving efficiency and cognitive flexibility.

Predatory/Instrumental Defendants were more likely to have both Axis I (major mental disorders such as Schizophrenia or Bipolar Disorder) and Axis II disorders (personality disorders such as Antisocial, Narcissistic, Histrionic, Borderline, and so on).

The researchers say what all this means is that Affective/Impulsive Defendants have “significant neuropsychological and intellectual deficits” while Predatory/Instrumental Defendants are “largely intact across neurocognitive domains”. In English, that means the Affective/Impulsive Defendants had multiple mental and developmental problems while the Predatory/Instrumental Defendants were “pretty much okay” when their intellectual and neurocognitive functions were assessed–but, of course, very much not okay on measures of what constitutes empathy for others.

So, planful murderers are most likely the predatory type, and the emotional/low intellect murderers tend to be the impulsive types. The former is likely to be smarter, and a bit less likely to be caught (or at least less quickly caught). The emotional/impulsive murderer is likely to commit the crime with less thought to the consequences, and without a plan for succeeding at it.

Our sage counsel is for you to stay away from both groups and away from psychopaths in general.

Hanlon, RE, Brook, M., Stratton, J., Jensen, M., & Rubin, LH (2013). Neuropsychological and intellectual differences between types of Defendants: Affective/Impulsive versus Predatory/Instrumental (Premeditated) Homicide. Criminal Justice and Behavior, 40

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Shoot first and draw the target second

Monday, February 4, 2013
posted by Douglas Keene

sharpshooter fallacyFact is often stranger than fiction and living here in Texas–we often hear tall tales. Some of them are true while most are pulled out to illustrate a point. Some are colorful and amusing while others take on a life of their own as representative of logical fallacies. Like the Texas sharpshooter tale where you shoot first and later draw the bullseye around the holes left by your bullets. You appear to be a sharpshooter but anyone drawing that conclusion would be sadly mistaken.

The Texas Sharpshooter Fallacy is a variation of what we joked about when I was in graduate school where we referred to this as “drawing the curve before you plot the data”. This logical fallacy is really about making assumptions when you only have partial data or circumstantial evidence. And if you’ve ever watched mock jurors or real jurors–you know this is a common occurrence as trial narratives are presented. If there’s a hole in the story–someone is bound to jump through it.

It’s a funny thing. After almost two decades of doing trial consulting, we know for sure that you can’t always predict how a group of twelve is going to respond to a story. And even when you predict with general accuracy, you don’t always know ‘why’ they would ultimately come to the conclusion they reach.  For example, it can be startling how quickly leaps can be made to conspiracy and how persuasive conspiracy theories can be given the right group of jurors.

Whether it’s the Texas sharpshooter fallacy or some other logical fallacy your case narrative elicits–you want to figure out how to plug those gaps in your story and how to identify what sort of person is going to identify a conspiracy where there is none and confuse your other decision makers during deliberation. That conspiracy-prone [“I see a pattern here!”] potential juror is a terrific target for your peremptory strikes. You could even think of pretrial research as shooting bullet holes and then drawing your targets on the jurors who shot them.

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Do not pursue a life of crime. And that advice goes beyond the idea you would be too easy to smell. And way beyond the tired recommendation of heavy-duty, clinical strength antiperspirant (although far be it from us to dissuade you from smelling nice). This is instead, as is our tendency here, a recommendation based on research.

Researchers from the Hebrew University of Jerusalem found a way to lift high-quality fingerprints from soaking wet paper. As it turns out, the amino acids in some human sweat can degrade fingerprint quality. In the past, therefore, the sweaty criminal may have been tough to identify. But progress is being made!

In this study, the scientists fixed this problem by making the gold nanoparticles stick to the paper upon which the fingerprint is located, instead of to the print itself. This method, detailed in the November issue of the German journal Angewandte Chemie [Applied Chemistry], results in a negative image of the fingerprint, with the particles sticking to the divots between the fatty ridges formed by greasy fingers. Since fat is impermeable, the ridges stay in place even when faced with massive amounts of water. You can read a detailed description of why this is so tough to do over at the Salamander Hours blog.

It would seem that sweaty criminals have a short time frame for choosing new career paths. So why is this important for litigation advocates to know?

Because it represents a significant advance in finger-printing technology and fingerprint identification.

It is a sign of moving closer to catching criminals whose amino acids may have unwittingly helped them to escape detection up until now.

Plus–there are times when it’s good to know something a little amusing and yet ostensibly relevant for litigation advocacy.

Jaber N, Lesniewski A, Gabizon H, Shenawi S, Mandler D, & Almog J (2012). Visualization of latent fingermarks by nanotechnology: reversed development on paper-a remedy to the variation in sweat composition. Angewandte Chemie (International ed. in English), 51 (49), 12224-7 PMID: 23125068

***We appreciate being included in the ABA Blawg 100 for the third year in a row! If you like our blawg, take a minute to vote for us here (under the Trial Practice category). Thanks! Doug and Rita***

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