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Archive for the ‘NeuroLaw’ Category

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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santa tracker

We’re taking a break until 2016 so we’ll see you in January!

Most of us grew up watching the weather report on TV and seeing a NORAD ‘Santa Tracker’ showing where Santa and his sleigh were on their way for a long night of work. But this is 2015 and if you celebrate the holiday, you likely want something a bit more scientific to show you that there is a “Christmas spirit” if not a Santa Claus. Thankfully, we can rely on the annual December issue of the British Medical Journal to enlighten us on holiday traditions and offer a light-hearted look at important questions on many of our minds.

In this case, the researchers wanted to figure out if there was a “Christmas spirit” within the human brain. The authors are neurology researchers, neuroimaging researchers, a professor of clinical physiology, and a medical physicist. A quick glance at the author names on this paper will show you that they are presenting, as they describe it themselves, “a cross cultural group study with functional magnetic resonance imaging” to “detect and localize the Christmas spirit in the human brain”. Participants were 10 “healthy people from Copenhagen who routinely celebrate Christmas and 10 healthy people living in the same area who have no Christmas traditions”. Some further research into whether this project was the result of typical, careful funding proposals or left over slush funds that were set to expire by Christmas morning seems warranted. But our skepticism at this time of year has an unfortunate “Scrooge-like” quality, so we won’t look very hard.

The participants completed a questionnaire about their Christmas traditions, feelings associated with Christmas and their ethnicity. The researchers are careful to let us know “no eggnog or gingerbread was consumed prior to the scans”. While the participants were in the MRI, they were shown 84 images (displayed for 2 seconds each and organized so there would be six Christmas associated images and then six images devoid of Christmas symbolism).

The researchers say they found a “cerebral response when people view Christmas images, and there are differences in this response between people who celebrate Christmas compared to those with no Christmas traditions”. They also greatly contribute to science in this area by saying there is a “functional Christmas network comprising several cortical areas, including the parietal lobules, the premotor cortex, and the somatosensory cortex”. These areas of the brain have been shown in previous studies (according to the authors) to be related to spirituality and transcendence, experiencing emotions shared by others, and “observation of ingestive mouth actions” which the researchers think is likely related to recall of shared meals with loved ones. All in all, they say, “these cortical areas possibly constitute the neuronal correlate of the Christmas spirit in the human brain”.

The researchers have carefully thought through their study design and interpretations and have compelling rejoinders to any of their colleagues whom they “suspect could be afflicted by the aforementioned bah humbug syndrome”. They would like further research on this issue—perhaps with subjects who’ve been given “tacky jumpers” (known here in the US as ‘ugly Christmas sweaters’) as gifts since they may well have different brain activity than those who received more attractive gifts for the holiday. They close with this comment in the acknowledgements section…

“We call ‘dibs’ on any profitable non-invasive or even invasive treatment of the bah humbug syndrome. We are currently preparing a patent application on a Santa’s hat you can buy for family members with symptoms. When they start grumbling at Christmas dinner, with the touch of a button you can give them electric stimulation right in the Christmas spirit centers.”

Hougaard A, Lindberg U, Arngrim N, Larsson HB, Olesen J, Amin FM, Ashina M, & Haddock BT (2015). Evidence of a Christmas spirit network in the brain: functional MRI study. BMJ (Clinical research ed.), 351 PMID: 26676562

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We are now in ABA’s Blawg 100 Hall of Fame!

Monday, November 30, 2015
posted by Douglas Keene

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We’ve recently been informed that The Jury Room has been inducted into the ABA Journal Blawg 100 Hall of Fame! Okay, it’s not a Pulitzer, but we are wildly happy about it. To our way of thinking, it is the greatest honor The Jury Room could be given. We appreciate the recognition. Closer to truth, we are shocked. Every December from 2010-2014 we have been delighted to be included in the Blawg 100, but this was not even on our radar screen. Here’s a link to the 2015 ABA Blawg Hall of Fame and a link to the 2015 Blawg 100 honorees.

Here’s how the ABA describes the Blawg 100 Hall of Fame:

In 2012, we established the Blawg 100 Hall of Fame for those blogs which had consistently been outstanding throughout multiple Blawg 100 lists. The inaugural list contained 10 inductees; this year, we added 10 more, bringing the total to 40.

And here is how they described this blog on their roster:

Trial consultants Douglas Keene and Rita Handrich find the research to alternately back up what you think you already know about human psychology (Is rudeness contagious? Yes.) and alert you to the unexpected (Are “beer goggles” real? No.) Posts are both fascinating reads and lessons on how not to base your cases on stereotypical assumptions.

We were inspired to begin blogging by Anne Reed (formerly of Deliberations blog and now leading the charge at the Wisconsin Humane Society). Once we got started blogging, we realized it was a wonderful way to keep up with the changing literature and to share what we were learning along the way. Looking back over the 900+ posts, we still find it interesting to blog as well as a great impetus for our own continuing education. Thank you, ABA Journal, for your recognition of our work over the last 6-1/2 years.

Doug and Rita

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2015 brain functionWe’ve seen the claims that people don’t find brain scans as alluring as they used to, but here is a study that says, “not so fast!”. It’s an oddly intriguing study involving not only invoking pretty pictures of brain function but also political affiliation and how that factors in to what one chooses to believe.

Much attention over recent years has been given to “an attack on science”, with many public figures (including elected officials) insisting that evolution is a hoax, climate science isn’t real, and vaccines are somehow more harmful than helpful. [For the record, here at the Jury Room we are big-time fans of science. I want to believe that our readers knew that already.]

Researchers discuss perceptions of “soft science” and “hard science” and the general sense that “hard science” is viewed as more reliable, accurate and precise. They describe multiple experiments showing people tend to prefer “hard science” data to data offered by those in “soft science”. The question these researchers focused on was whether “hard science” data (in this case, a brain scan) would be preferred over “soft science” data (in this case, cognitive test results). They also wondered if this preference (for “hard science” or “soft science” data) would be mediated by political orientation.

In the study (106 participants, 83 women, 23 men; ranging in age from 18 years to 47 years with an average age of 19.6 years; 77 identified as White, 17 said they were African-American, and “five or fewer” identified as Asian American, Latino/Latina or other) completed a pretest online which included two questions about their political preference (both used by the American National Election Studies).

Generally speaking, do you think of yourself as a Democrat Republican, Independent, or something else?

If you selected Democrat or Republican for the previous question, would you call yourself a strong Democrat or Republican or a not very strong Democrat or Republican?

Only those participants who identified as either Democrat or Republican were eligible to participate in the study which they were told would involve them reading about an ethics violation and then making judgments about the case.

In the study itself, participants read a one-paragraph case description about a politician elected to office in a geographically distant state who had recently been cited for three ethical violations. The paragraph informed them the ethics committee had questioned the politician’s memory and asked him to have an evaluation done on his memory to determine if memory issues would prevent him from carrying out his duties as an elected representative. Finally, the participants read that if the testing determined the politician was impaired, he would be forced to resign and the governor of the state would appoint a replacement to serve until the next election. The paragraph description concluded by saying the governor had announced that any replacement appointees would be members of the same political party as the governor.

There were (you knew this was coming) several variations in the information the participants read about the politician and his situation.

Half of the participants read that the politician tested was a Democrat and the governor of his state was a Republican. The other half read that the politician was a Republican and the governor of his state was a Democrat.

The researchers paid attention to the political identification of the participant and if the participant said they were Republican and read about a Republican politician—they were placed in a group for analysis that was labeled in-group. If, on the other hand, a Republican participant read about a Democratic politician, they were placed in a group labeled out-group for analysis purpose. (The same applied vice versa when party preference is opposite.) Further, if the participant endorsed a strong affiliation politically, they were classified in the strong political identification group and if they endorsed a weak affiliation politically, they were classified in the weak political identification group.

After reading the initial description of the situation, all participants read a two-paragraph description of an expert evaluation of the politician. The expert mentioned in this description was a “Dr. Daniel Weinberger”. The participants received differing information about how Dr. Weinberger had evaluated the politician’s cognitive function.

Half the participants read that Dr. Weinberger reviewed the politician’s medical history and gave him verbal or paper and pencil tests (commonly used by neuropsychologists).

The other half of the participants read that Dr. Weinberger reviewed the politician’s medical history and conducted an MRI of the politician’s brain. (It is important here to note that no MRI images were shown. All the participants saw were words describing the process and then, the outcome.)

The second paragraph offered a description of the results of the evaluations in ways consistent with either verbal or paper and pencil tests or an MRI. For all participants, the second paragraph ended with identical statements saying that the expert concluded the “politician was suffering from beginning-stage Alzheimer’s disease, that symptoms will continue, and the symptoms will interfere with the politician’s ability to perform his duties”.

And here are the findings:

Biologically based information (i.e., the brain MRI) was viewed more favorably (69.8% said the evidence the politician had early stage Alzheimer’s was strong and convincing) than the behaviorally based (i.e., cognitive testing) information (only 39.5% said the evidence the politician had early stage Alzheimer’s was strong and convincing).

When asked to identify the one most important reason they felt the way they did about the evidence presented, those who saw the behavioral evidence said it was subjective  and perhaps unreliable or irrelevant—more than 15% said the neuropsychological testing was unreliable or irrelevant. Not a single participant who saw the biologically based evidence said the MRI evidence might be unreliable—in fact, they saw it as objective, valid and reliable. (Anyone with any knowledge of the validating research and very detailed manuals accompanying psychological tests might find this, as the researchers say, “perplexing”. Of course, those who have that knowledge base would not qualify for inclusion in this study.)

Those participants who were in political out-group assignments (that is, Republican participants who read about a Democratic politician or Democratic participants who read about a Republican politician) were more likely to discount the behavioral science evidence than those in political in-group assignments.

In short, in this study, participants saw the MRI as more reliable and relevant than the cognitive testing, and those with strong political identities discounted the cognitive testing even more than those without the strong political sense of self.

Despite the reality that Alzheimer’s would always be diagnosed with cognitive testing, and brain scans used after testing was completed to rule out other explanations for impairments identified by testing—these participants preferred the verbally described brain images of “hard science” to the low-tech paper-and-pencil tests of the neuropsychologist. It’s a finding that underscores the importance of expert testimony informing jurors of how a diagnosis is made so they know if testing was performed because of the “wow” factor of a colorful MRI or to offer a research-based assessment of brain/memory impairment.

In other words, don’t believe everything you read– jurors can still be seduced by what looks like “hard science”. Your task is to show them what scientific findings are truly backed up by years of scientific research and development.

Munro, G., & Munro, C. (2014). “Soft” Versus “Hard” Psychological Science: Biased Evaluations of Scientific Evidence That Threatens or Supports a Strongly Held Political Identity. Basic and Applied Social Psychology, 36 (6), 533-543 DOI: 10.1080/01973533.2014.960080

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brain based MI 2015We’ve written about the brain based defenses a lot here. And here’s an article that may shed light on how the presentation of neural defenses could backfire on defense attorneys.

First, let’s look at the research. The researchers wondered how the biological explanation of mental illness might affect the empathy of mental health clinicians toward the patient. To test their hypotheses, the researchers performed three studies with a total of more than 300 participants (all mental health clinicians—psychologists, psychiatrists, counselors, and social workers).

What they found in the studies (using vignettes focused on clients/patients presenting problems of social phobia and depression) was surprising. Mental health professionals are trained to find ways to empathize while maintaining objectivity with their clients/patients. However, simple exposure to a biological explanation for the mental health issues resulted in mental health professionals reporting less empathy for the individual presenting for help.

When the researchers offered both biological and psychosocial explanations for the mental health issues (emphasizing biological causes in one experimental condition and psychosocial causes in the other condition), the mental health professionals were still less empathic when the explanation they heard emphasized biological explanations for the mental illness. Our take on this reaction is that empathy is reserved for circumstances that we can relate to, and that evoke some identification with the underlying problem. We understand and to some extent can relate to family tumult, loss, trauma, etc., how much can we empathize with a biological condition that results in anti-social behavior? It is a harder stretch.

From a litigation advocacy perspective, this raises red flags for the Defense attorney putting forth a biologically based (e.g., “his brain made him do it”) defense. If even trained mental health professionals are made less empathic by biological explanations for the mental illness, then what chance is there of non-mental health professionals feeling more empathic toward your client when they hear biological explanations for your client’s behaviors?

While neurological or brain-based explanations for behavior can sometimes be persuasive, they also categorize your client (the defendant) as something different from the jurors (i.e., not “like” the jurors). The creation of that distance can lead to objectification rather than identification with defendants, which isn’t usually helpful.

Even though jurors may accept the neurolaw defense, the defendant is alien to them, almost mechanistic and therefore not as likely to generate empathy and concern. For example, jurors may see your client as a psychopath and thus irredeemable (as well as very, very scary).

If the victim/Plaintiff is “like the jurors” and therefore worthy of empathy and concern—a neurolaw defense may work to the detriment of your client by increasing juror empathy for the victim/Plaintiff and decreasing empathy for the defendant (aka “that animal”). And while this defense may work to some extent in criminal courts, it seems that it would be a much more difficult position in a civil case.

Lebowitz MS, & Ahn WK (2014). Effects of biological explanations for mental disorders on clinicians’ empathy. Proceedings of the National Academy of Sciences of the United States of America, 111 (50), 17786-90 PMID: 25453068

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