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Archive for the ‘NeuroLaw’ Category

gruesome crimeJust say his brain made him do it! That is the conclusion of new research on the relationship between gruesomeness of the crime and the harshness of the sentence. In case you can’t intuit this one, the more gruesome (and disturbing) the crime, the harsher the sentence tends to be. But if the assault was merely moderately gruesome — even though it could have been deadly– there are ways to minimize punishment decisions. 

Researchers at Duke University found that “if the focus is drawn away from the mind of a perpetrator by providing biological explanations of personality instead of traits, people may not make the same social cognitive inferences”. So how did they come to that conclusion (and what does that quotation mean)?

First of all, it’s a small sample (N = 11), likely because it’s expensive and time consuming to use an MRI machine. The researchers conducted brain MRIs while the participants read a number of different vignettes about crimes either strong in violence-related disgust or weak in disgust. The idea was for the researchers to see which areas of the brain were activated while reading the vignettes (that were either disgustingly gruesome or not so much) and then to see whether the participants chose punishment less than the US Federal Sentencing Guidelines or chose the harsher recommended sentence. (We’ve written about disgust before and these researchers equate “gruesome” with “disgusting”–apparently thinking of the visceral reaction to gruesome photos or mental images elicited from written descriptions.)

Here are examples of the vignettes used:

Rob Whitley was on his lunch break. He saw his boss at the hot dog stand and approached him while taking out a pair of scissors. He stabbed his boss on the side of the neck first, and then the lower back, causing the victim serious blood loss and requiring hospitalization. (This vignette was described as high in disgust.)

John Noel was at a bar and saw his ex-girlfriend’s new lover, James. Although John was not expecting to see James there, John took out the gun he regularly carried in his back pocket and tried to shoot James, but missed. (This vignette was described as low in disgust.)

Both of these crimes (whether high or low in disgust) would be prosecutable for aggravated assault. Participants were asked to rate how morally reprehensible the act was, how severe the punishment should be, and how much they were disgusted by what they read. However, as is typical in research like this, there was another twist: The researchers added a single sentence to the end of each vignette describing the perpetrator’s personality using either personality traits or biological language. That is, “Gerald frequently proves to have an impulsive personality” versus “Terry has a gene mutation that has been associated with impulsivity” when the crime was premeditated murder.

And here is what they found:

When the perpetrator was described as having biological reasons for impulsivity (rather than as being impulsive), he was seen as being less responsible and punished less severely.

When crimes were strong in disgust, there were harsher sentences but there was no relationship between how personality was described (biological or trait description) and punishment.

Crimes weak in disgust resulted in less harsh punishment than the guidelines recommended while crimes strong in disgust were punished at the recommended level.

In other words, if the crime is pretty gruesome (and these researchers say therefore one jurors would see as disgusting) your client is likely to get the harsher sentence regardless of whether you invoke a neurolaw (his brain made him do it) sort of defense. But, if the crime isn’t gruesome and you invoke a neurolaw defense, your client may be seen as less responsible for his actions and punished less.

Ultimately, this dovetails well with what we’ve known for many years– its about what the jury focuses on. If the jury spends a lot of time talking about the crime and the injuries it caused, the defendant is in trouble. If there is a credible mediating explanation such as a neurolaw defense or other circumstantial evidence and the jury spends time talking about human behavior instead of terrifying assault, the defendant is in better shape.

Overall, it is important to remember that this is a study based on such a small sample of people (N = 11) that their results might not be verifiable, even when it makes intuitive sense. However,  it is worth remembering that according to this study, gruesomeness/disgust of the crime affects the assignment of responsibility but likely does not affect sentencing decisions.

Capestany BH, & Harris LT (2014). Disgust and biological descriptions bias logical reasoning during legal decision-making. Social Neuroscience, 9 (3), 265-277 PMID: 24571553

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A new issue of The Jury Expert!

Friday, February 7, 2014
posted by Rita Handrich

TJE_logo-300x99The Jury Expert is a trial skills magazine for attorneys, written by trial consultants, and published by the American Society of Trial Consultants as a (free) service to the litigation community. The February 2014 issue just published and it was worth waiting for!

Here’s a description of what you will see in our latest issue when you visit The Jury Expert’s website:

The ABCs of Religiosity: Attitudes, Beliefs, Commitment, and Faith: Gayle Herde writes this practical article on how you can understand the role religious beliefs could play in juror deliberations. How to measure religiosity (by looking at attitudes, beliefs, commitment and faith), how to listen to responses in voir dire to “hear” religiosity without asking for direct expressions on the role of religion in a potential juror’s life, the relationship of political persuasion and religion, the role of non-belief, and how to structure your SJQ effectively.

Neuroscience, The Insanity Defense, and Sentencing Mitigation: Adam Shniderman gives us a very current, plain language review of the neuroscience arena. What does all the conflicting media coverage mean? What does the research really say? How can you best defend a client with neurological issues? This is a terrific summary of how to understand the “my brain made me do it” media coverage distortions, learn what the research actually says, and then plan accordingly.

A (Short) Primer on Lesbian, Gay, Bisexual, Transgender, and Queer (LGBTQ) Culture in America: Alexis Forbes brings us all up to date on research, why it’s important to understand this culture, and terminology. She includes helpful charts that visually demonstrate the relationships between common terms and even a “say this” and “don’t say that” graphic to help you communicate without offending. You may think you are up to date. Here’s a simple question: Do you know what ‘cisgender’ is? Go read this!

Defense Responses to Jailhouse Informant Testimony: Brittany Bates, Rob Cramer, and Robert Ray bring us this information on how to defend against allegations about your client by a jailhouse informant. From reviewing the literature to offering ideas for pre-trial research and SJQs, this is a practical article for when you are faced with damaging testimony from your client’s alleged jailhouse confidant.

Metaphors and the Minds of Jurors: We are very familiar with the power of the story model for case presentation but, according to Ron Bullis, we may not have paid as close attention to the power of the metaphor. Read this to learn how to listen for metaphors in deposition to hear (and know how to defuse) opposition arguments. This is a practical article that highlights the importance of the metaphor–how you can use the metaphor powerfully, and how you can defuse the power of opposing counsel’s metaphor.

Why Do We Ask Jurors To Promise That They Will Do the Impossible? Suzy Macpherson asks us to think about the impossibility of setting aside preconceived notions, life experiences, and values in order to be “fair and impartial”. This is a practical article that will leave you thinking about how to ask seemingly simple questions quite differently.

A new Favorite Thing: Hate spam? Especially hate how you are able to catch it at your laptop or desktop but it creeps onto mobile devices? Here’s a terrific and inexpensively priced product that will make you smile every time you get email showing you what they caught at the server level so you never have to waste time deleting spam from your smart phone or tablet again! (You are welcome.)

The Top 10 Favorite Articles from The Jury Expert in 2013! Don’t you hate it when you don’t know about something many of your friends, colleagues, and opposing counsel know? Here’s a shortcut for you: This is a list of the top 10 articles our readers (your friends, colleagues and opposing counsel) explored in 2013. Catch up quick!

As Editor of The Jury Expert, one of the real benefits for me is reading all this information first. I love learning new things and being surprised by novel ways of considering complex issues. Please visit this new issue of The Jury Expert now.

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Top Ten Blog Posts for 2013!

Monday, January 6, 2014
posted by Douglas Keene

top ten 2013We like to look back at the end of the year to see which posts had the most traffic on our blog. It’s a way for us to know what you like to read and to see what sorts of posts attract attention regardless of when they were written. Here is a traditional Top 10 countdown–starting with the post that was our #10 and ending up with our #1 post (as measured by internet traffic) for the calendar year 2013. 

#10: “A new question for the jury: Did my brain implant make me do it?”. A post from December 20, 2013 that caught fire and made it into our top 10 posts for 2013. Some people need deep brain stimulation (DBS) to treat serious medical conditions. But for a few, DBS results in inappropriate and sometimes illegal behavior. This is a twist on the neurolaw question: “Did my brain make me do it?”.

#9: “Jury Sequestration: ‘Not even the Bible is left in your hotel room’”. Written during the Trayvon Martin trial–this post was very popular among those following that trial and wondering what sequestration would truly mean for the 6 jurors.

#8: “Simple Jury Persuasion: Tattoo you?”. Should a trial lawyer be tattooed? It’s a big question. This research says it depends on just who you are trying to persuade.

#7: “Simple Jury Persuasion: The Alpha Strategies”: This post highlights the difference between the alpha and the omega strategies of persuasion by looking specifically at the alpha strategies (a direct form of persuasion).

#6: “Excuse me, potential juror, but just how big is your amygdala?”. There is tremendous interest in the new neurolaw findings and this post summarized an article positing that conservatives have larger amygdalas while liberals have larger cingulate cortexes. This, according to the authors, is critically important for understanding the decision-making of these two groups. Uh-huh.

#5: “A screwdriver: The new addition to your trial toolbox? (We think not.). This was an odd one where researchers found if you tilt chairs to the left (subtly) the unsuspecting sitter agrees with the Democrat Party more than those sitters in chairs subtly tilted to the right (who agree more with the Republican Party). We think it best to not tinker with the chairs in the deliberation room or in the jury box.

#4: “When you wear glasses you are less attractive but more smart and trustworthy.” This one summarizes research that says if you want to increase perceptions of your trustworthiness and intelligence without decreasing your attractiveness–there is a specific sort of eyeglass frame to investigate.

#3: “No one makes a deal on a handshake these days!”. Here’s one on how hard it is to believe multimillion dollar deals are still based on verbal contracts and handshakes.

#2: “Women who stalk: Who they are and how they do it”. This post looks at the research on female stalkers and all we need to say here is you really do not want a female stalker. Of course, you don’t want a male stalker either.

And here it is. Our most popular post during the 2013 calendar year….

#1: “The glasses create a sort of unspoken nerd defense.” This is the first post we did on this research which was misinterpreted by the media and resulted in a lot of lawyers buying glasses for their clients to wear. The followup posts on this research also made our Top 10 via a “nerd defense” search of our blog.

So that’s our 2013 rundown. Please join us as we roll out 2014 and continue to bring you the latest in research and strategy for the art and science of courtroom advocacy.

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brain implantWe’ve written as lot about “brain malfunction” [aka “did my brain make me do it?”] defenses here but this is a new twist on the neurolaw question. Deep brain stimulation (“DBS”) is a well-accepted treatment for a number of serious and treatment resistant neurological conditions from Parkinson’s Disease to depression and obsessive-compulsive disorder. As effective as DBS can be, there are also concerns about how, in some patients, it changes one’s personality to cause “undesirable or even deviant behavior”. The behavioral/personality changes depend on the location of the deep brain stimulation (and the functions carried out by that portion of the brain). 

So. You have a condition for which everyday treatment is ineffective or causes side-effects worse than the condition itself. Your doctor suggests a brain implant to offer deep brain stimulation (DBS). You are unfortunately, one of those for whom DBS creates behavioral reactions and you do something illegal. Are you responsible? Or is it your brain implant?

The authors of the paper we are examining today consider DBS in relation to one’s responsibility for action (caused by the DBS) and the issue of mental competence (when one’s behavior is modified by the DBS). They discuss case studies and ponder the limits of responsibility when one’s brain has been intentionally modified but the reactions are idiosyncratic. They compare DBS to the behavioral changes sometimes experienced by persons taking antidepressants and having negative behavioral changes that can bring them into contact with the criminal justice system. Is DBS behavioral alteration akin to severe medication side-effects? Or is it more like to substance-abuse related behaviors like sexual assault or even homicide?

For patients receiving DBS who have had a history of suicidal ideation or severe depression, the authors consider the civil liability of physicians and manufacturers of the DBS devices themselves. Sometimes, the negative effect of DBS is resolved by simply shutting the device off and the patient returns to baseline. Other times that may not happen–the technology is fairly new and much remains unknown. What does it mean about our individual identity to be dependent upon a brain implant for function? In short, the authors believe the questions need to be resolved while DBS treatment is relatively new rather than having court decisions create a roadmap to individual responsibility under DBS.

The article is very complex and the ideas in it are provocative. We cannot do justice to the questions raised by these writers in a brief blog post. It’s a very serious question.

When you agree to a cutting-edge treatment and you are informed that for some people, behavioral changes may occur, do you thereby accept responsibility for any actions you take under the influence of that treatment?

Or, since the behavior is completely different than anything you have previously displayed  and is thus believed due to the treatment (which can be shut off) is it fair to deny responsibility?

And if you encounter aberrant behavioral effects but decide to not shut off the DBS because you appreciate the ways in which it helps you function, are you then more responsible for any illegal act you committed since you are choosing to continue down the same path?

Yes. This is a new question. Not, “did my brain make me do it?” but “did my brain implant make me do it?”. Ultimately, however, the larger question remains the same. Where does our personal responsibility end?

Klaming L, & Haselager P (2013). Did My Brain Implant Make Me Do It? Questions Raised by DBS Regarding Psychological Continuity, Responsibility for Action and Mental Competence. Neuroethics, 6, 527-539 PMID: 24273622

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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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