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fMRIs and Persuasion: Did anyone tell the jurors?
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
Automatism and the Ambien Defense
We’re betting you know what the ‘Ambien Defense’ would be—but that maybe the definition for automatism has escaped you. Generally it refers to a robot, specifically to an autonomous robot—which is a pretty scary thing when you think about it. And in this case, scary things happened. Here’s the story, courtesy of the Fayetteville Observer.
Robert Stewart is charged with shooting and killing eight people with a shotgun at the Pinelake Health and Rehabilitation Center in Carthage, North Carolina. He had taken Ambien the night before but the shootings occurred the next morning. His attorneys have said:
“Stewart was not in control of his actions because of a combination of alcohol and three prescription drugs he was taking, including Ambien. As such, they say, he should not be held legally responsible.”
In essence, the defense has given strong hints they will be pursuing the automaton defense—that Stewart was not in true control of his actions due to the impact of his prescription medications mixed with alcohol. This defense is a bit different than the insanity defense although the attorneys say they also may file insanity and diminished capacity defenses.
We’ve seen similar strategies before with defenses for sexsomnia, and other ‘my brain made me do it’ defenses like this one or this one. We still think it’s a long shot.
You are not supposed to drink alcohol with Ambien (or probably with any of the other drugs he was taking). Mr. Stewart says he did. That’s a point for Mr. Stewart’s irresponsibility with his medications, and in most jurisdictions it creates problems for using it as a defense.
Mr. Stewart had pre-existing “emotional issues” and had visited a doctor 48 hours before the shootings for depression and anxiety. Jurors may think his pre-existing mental health issues are more at fault here than the use of Ambien.
His ex-wife says he had “violent tendencies” and that he would “get mad because of things that didn’t go his way. He never really hurt me, but he would get mad and blow up.”
An early news report stated Mr. Stewart’s current wife (from whom he was separated) worked at the Pinelake facility and speculated that is why he targeted that location.
Most of the cases of odd behavior on Ambien are described as occurring a few hours after you take Ambien (people who drive, mow their lawns, or sleepwalk/sleepeat) but the Pinelake shootings occurred the morning after.
It’s one thing to believe Ambien will result in sleepwalking or even sleep-driving. But killing eight people [seven elderly patients and their nurse] and wounding two others?
It’s a long road to convince jurors of the idea that Mr. Stewart was simply robotically obeying the influence of the Ambien when he had preexisting conditions, a history of rage, his estranged wife worked at the Pinelake facility and he acknowledges he had consumed alcohol. But stranger things have happened. We’ll keep an eye on this one.
And for those of you who are involved in Ambien liability litigation, we don’t mean to be taking sides on the merits of these disputes. This case caught our eye because of the seriousness of the conduct, and some evident problems related to Mr. Stewart’s history. We have worked on many pharmaceutical cases and diminished capacity cases, and understand that they can be brought about by myriad influences. And perhaps most importantly, we got these reports from the media. As we learned from the Casey Anthony trial, that may not be the whole picture…
September 6, 2011:
See an update on how the jury deliberated and decided in this case.
Praveen Kambam, MD, & Phillip Resnick, MD (2010). Ineffective Counsel and Mental Health Expert Witness Testimony in an Insanity Defense. Journal of the American Academy of Psychiatry and the Law, 38 (4)
Measuring knowledge of the insanity defense: Scale construction and validation. Tarika Daftary-Kapur Ph.D., Jennifer L. Groscup Ph.D.†, Maureen O’Connor Ph.D.‡, Frank Coffaro M.A.§, Michele Galietta Ph.D. Behavioral Sciences & the Law, Volume 29, Issue 1, pages 40–63, January/February 2011
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Why are you so heartless?
Not everyone has the excuse of really not having a heart like the Tin Man in the Wizard of Oz. But there are certainly those among us who seem not to have a heart. Our sense of this differentness among us has led to familiar sayings: ‘Heart of stone’ versus those of us who have ‘bleeding hearts’.
Why is it that we are so different? New research says it might be oxytocin (the love hormone) or maybe it’s mirror neurons (the brain parts that give us empathy for others).
When we have less oxytocin, we are less loving, caring, or prone to put others before ourselves. Dutch studies of oxytocin in human mothers found that those with lower levels of oxytocin were less likely to be patient and helpful with their toddlers. (Where oh where are the Dutch studies of human fathers?)
And those of us with fewer mirroring neurons don’t get misty-eyed over holiday commercials for coffee made by your returning college student, or documentaries on puppy mills or watching heartwarming movies.
It’s a tradeoff. There are differing kinds of brains and they have different chemicals that result in varying levels of thinking and feeling. This would be precious information when you are exercising that last strike or two. And we probably know this quite well in our personal relationships. The challenge is in identifying (and then choosing) those who are best for our juries and for our lives. And since we can’t measure oxytocin or mirror neurons in our jurors—we have to examine what we can see or intuit attitudes, values and life experiences. Not as nifty perhaps, but much more manageable. The point of this blog is to point out a new level of the truth was all knew—there are genuine differences, and there isn’t much we can do to influence jurors to be different than their nature. See lots of ways to assess those variables in our voir dire category.
Excuse me, potential juror, but just how big is your amygdala?
New research touts findings that conservatives have bigger amygdalas while liberals have bigger cingulate cortices. The bigger amygdala means conservatives could be driven by fear while the bigger cingulate cortex means liberals have more decision-making power. Hmmm. Is it possible that our politics are fixed at birth?
Probably not. Neuroskeptic takes a look at the research and makes us question, yet again, if we can believe anything we read these days. In essence, he says this is probably a fluke and that you really should not look to the brain for information on political views. Political views do not originate in the brain, according to the Neuroskeptic—but in the wider culture. Thankfully, we are not doomed to robotically carry out whatever political orientation our genes would design for us.
So—if we cannot look to the brain for insight about political orientation—what about the eyes? “The eyes are the window to the soul” after all—might they tell us something? As a matter of fact, they do, according to researchers at the University of Nebraska at Lincoln. We wrote about this study recently but are bringing it back today. The Nebraska researchers found that there are big differences in how liberals versus conservatives followed directives to shift their attention in response to another’s eye movements. Liberals tended to look where you look while conservatives did not. Hmmm. Is it possible our politics are fixed at birth? Where is the Neuroskeptic when you need one?
We continue to make efforts to find ways to explain why we do the things we do. While we happen to think the ‘gaze cues’ research is really pretty intriguing (since we cannot whip out MRIs to scan potential jurors brains without anticipated objections) much of the brain hoopla is just that, hoopla. We just don’t understand enough about how brains work and how they interact with our awareness and our unawareness.
We assisted on a case about two years ago in which a young mother with a very young child was hit by an oncoming train as she drove up to and then crossed some railroad tracks. The mother was killed but her child survived (horribly injured). Mock jurors questioned how she could simply not have seen nor heard the oncoming train. After these questions were raised, another juror tentatively stated that she had had several near misses. After this admission, several others agreed. The room was split. The animations of what was visible from the young mother’s vantage point were not of use to them (so they thought) since they “were not in the car with her” and did not know if she had been distracted by her child or music.
These jurors were discussing something called “change blindness” well before the gorilla videos emerged. Now, the phenomena is well-known. We can see something and yet not recognize and understand it simultaneously. It’s about the brain, yes. And it’s about vision. And perception. And attention.
An oncoming train—huge, loud, fast, rattling and ground-shaking—can be invisible. It’s hard to understand. But for some people who tragically experience it—it is a harsh and life-changing real experience.
Michael D. Dodd, John R. Hibbing, & Kevin B. Smith (2010). The politics of attention: gaze-cuing effects are moderated by political temperament. Attention, Perception and Psychophysics.
“You know who else lies?” she screeches. “LAWYERS lie!”
Mark Bennett writes Defending People blog and we stole this line from him. Mark elicited this line from opposing counsel in a jury trial. (And no. This is not going to be a post on what one should never allow to pass from one’s lips during closing argument. That list is simply too long although we would think this line should be included.)
Instead we are turning again to our abiding desire to detect deception. You’ve seen the ongoing efforts to show deception via MRIs submitted to the court for potential evidence. We’ve tried to keep up with it on this blog. But the publication of new work in this area continues faster than we can keep up!
Lower tech efforts to identify deception are also afoot (thankfully!). Bob Sutton of Stanford wrote the (in)famous book on civility at work. Now he is focusing on practices that make for a good boss or a bad boss and blogs about how to tell if your boss is lying. He cites a really terrific piece in the Economist emphasizing that it is “not just that his lips are moving”! Sutton summarizes the ways you can identify deception based on comments in conference calls (and provides a link to the original article). The findings are certainly relevant to litigation advocacy and to life in general as they give insight into how we attempt to deceive in high-stakes communication.
We don’t want to be deceived. We don’t want to be tricked. We (above all) do not want to be lied to, believe and be seen as gullible. While we await the magic (high tech) answers promised by MRI purveyors—it is likely a really good idea to keep reading the lower tech research. (Plus it’s a whole lot cheaper!)
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