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Archive for the ‘NeuroLaw’ Category

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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brain scienceIf you think neurolaw and neuroscience are everywhere–and don’t find it particularly challenging to talk about brain science, apparently you are living in a very rarified environment. It’s hard to believe but evidently, most people do not think the exploding field of brain science is fascinating! Instead, when they think of brain science they think of things that are far removed from their daily lives and things that make them anxious. [Or bore them to tears.] For litigators this has crucial ramifications, since any body of technical information that is worth presenting to a jury requires understanding if it is to be useful.

UK scientists interviewed 48 London residents about “brain science”. They found that most of the interviewees believed that they would only find themselves interested in learning more about brain science if they developed a neurological illness. Maybe… too little too late?

The researchers identified four themes in the participant’s interviews: the brain is something in the science domain; there was significant angst that something could go wrong with the brain; there was a belief that we are all in control of our brains to some extent, and that our brains are what makes us all different and unique. The individual quotes the researchers included however, highlight the lack of awareness of brain science or research:

“Brain research I understand, an image of, I don’t know, a monkey or a dog with like the top of their head off and electrodes and stuff on their brain.” [Male participant]

“It does conjure up images of, you know, strange men in white coats.” [Female participant]

“You just, like I say, blind people with science, don’t you. And then it becomes a subject that you just don’t understand. With me, I just switch off. I’m not understanding what you’re talking about here, so I just switch off.” [Male participant]

“Where do these people come from, that actually understand these things?” [Female participant]

The researchers highlight the reality that most people do not see “brain science” as something relevant or a part of their lives. However, if an individual developed a mental illness or a neurological condition–they believe they would have more interest in learning. Without those catalysts, however, they have little interest in pushing themselves to understand more. The researchers report the concept of “brain science” seemed foreign or “baffling” to most of those interviewed.

From a litigation advocacy perspective, this study highlights the importance of teaching the science. Whether “the science” of a specific case is patent law, high-tech and abstract concepts, or actual “brain science”–jurors need to hear it and have a sense that they understand it enough to actually make judgments on the case. Keep in mind that they are going to judge it whether it is understood or not. The question is simply whether the judgment is going to be informed by bias, by knowledge, or by a coin flip and a longing to be done with jury duty. We know from 20 years of interviewing jurors that they strongly prefer having clear understanding. And that, dear litigator, is up to you.

We have worked on cases in which animation helped jurors make sense of complex computer programming and on others where the analogy of ordering a pizza with different toppings or a hamburger with or without special sauce were used to help jurors understand different technology applications in an especially complex patent infringement case. We’ve also worked on cases where there were allegations of neurological injuries but a very normal looking Plaintiff and jurors had to “see” the injuries somehow to help them understand what had been lost.

Never lose sight of how foreign the concepts truly are, and help jurors understand so they do not have to “shut off” as one of the interviewees in this study confessed to doing. Often, our mock jurors help to make the abstract and complex both concrete and simple, or at least familiar. Just because you have been buried in a case for years and live, eat and breathe the science, doesn’t mean jurors will have a clue about what you are presenting to them. Teach them in a way that helps them relate the abstract and esoteric to their everyday lives. It empowers them to make the right call. If you don’t know how to explain it to ‘real people’, gather a group of mock jurors and ask them what makes sense, where they get lost, and what analogies are most useful to them. If you invite them to the conversation in the right way, they’ll tell you.

O’Connor, C., & Joffe, H. (2014). Social Representations of Brain Research: Exploring Public (Dis)engagement With Contemporary Neuroscience Science Communication, 36 (5), 617-645 DOI: 10.1177/1075547014549481


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We are again honored by our inclusion in the ABA Blawg 100 list for 2014. If you value this blog, please take a moment to vote for us here in the Litigation Category. Voting closes on December 19, 2014. Doug and Rita

TJE_logoA new issue of The Jury Expert has been published, and as usual, it’s one worth reading. As Editor since May, 2008–I get to see the articles as they come in and am always surprised at (and appreciative of) the creative and stimulating content we receive. The Jury Expert, like this blog, is all about litigation advocacy and understanding how new research can help inform your strategies in the courtroom. Here’s what you can see in the lineup for the November 2014 issue.

Does Video Image Size Affect Jurors’ Decisions? A Look at How Image Size Interacts with Evidence Strength, Defendant Emotion and the Defendant/Victim Relationship

Wendy Heath and Bruce Grannemann ponder how video image size in the courtroom is related to juror decision-making about your case. They discuss how image size interacts with image strength, defendant emotions, and the defendant/victim relationship. Trial consultants Jason Barnes and Brian Patterson team up for one response to this article and Ian McWilliams pens another. This is a terrific article to help you reconsider the role of image size in that upcoming trial.

Moral Outrage Drives Biases Against Gay and Lesbian Individuals in Legal Judgments

Sarah Malik and Jessica Salerno have some original research on bias against gays in the courtroom. This is simple and powerful research that illustrates just how moral outrage drives our judgments against LGBT individuals (especially when they are juveniles). Stan Brodsky and Christopher Coffey team up for one response and Alexis Forbes pens a second. While these findings make intuitive sense, they may also highlight something you’ve not previously considered.

Anti-war Protestors and Civil Disobedience: A Tale of Two Juries

Lynne Williams is a trial consultant who lives in the cold and snowy state of Maine. She is also skilled in picking juries for political trials and a gifted writer as she describes the important differences between picking juries for civil disobedience cases and antiwar protestor cases. This article not only explains what Ms. Williams does, but why and how she does what she does. It’s like lifting up the top of her head and peering inside her brain.

A Qualitative Examination of Self-Care in Lawyers

Mary Wood, Jacklyn Nagle and Pamela Bucy Pierson bring us this qualitative examination of self-care in lawyers. They talk about workplace stress and depression and substance abuse. Been there? Are there? Some kinds of self-care may work better than others but–what’s important is that you actually do some self-care! Andy Sheldon and Alison Bennett share their reactions to this article.

Favorite Thing: Plain Text

Why, you may wonder, would Plain Text EVER be a Favorite Thing. Because it is fabulous. Or, perhaps because, “Plain text is the cockroach of file types: it will outlive us all.”

The Selective Allure of Neuroscience and Its Implications for The Courtroom

Adam Shniderman knows neuroscience evidence can be incredibly alluring. This new study shows us that unfortunately (or perhaps fortunately) it is not universally alluring. Here’s a shocker: the impact of the neuroscience evidence is related to the individual listener’s prior attitudes, values and beliefs about the topic. Robert Galatzer-Levy and Ekaterina Pivovarova respond with their thoughts on the issues raised.

Book Review: Law and Neuroscience

Law and Neuroscience by Owen Jones, Jeffrey Schall, and Francis Shen has just published and is as long as any Harry Potter tale at more than 800 pages. Rita Handrich takes a look at this new textbook and reference manual which covers more than you ever knew existed on the wide-ranging field of neurolaw (which is a whole lot more than the “my brain made me do it” defense).

Promoting Communications between Social Scientists and Lawyers

Roy Bullis is back to talk to us about the wide language gulf between attorneys and their social science expert witnesses. Just because you are talking, doesn’t mean you are actually communicating. How do you talk so your expert knows what you mean?

Image from The Jury Expert

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p300 brain waves and deceptionWe’ve written before about the inaccuracy of eye witness testimony despite the familiarity of the saying, “I know what I saw!”. But here is newly published research purporting to have been “able to discriminate perfectly between 12 knowledgeable subjects who viewed stimuli related to their activities and 12 non-knowledgeable subjects who viewed only irrelevant items”. What does that mean? Well, let us tell you (and you can also see a more complete description of the experiments here).

These researchers wanted to test eye-witness memory through the measuring of brain waves (called the P300 event-related-potential-component, as I am sure you knew already). The P300 wave is thought to represent the transfer of information to consciousness, a process that involves many different regions of the brain. Some say the P300 wave occurs when the observer sees something that stands out for them, “an oddball” stimuli. In order for a P300 wave to occur, the subject must be consciously paying attention to targets presented. These researchers thought they could present familiar (e.g., “Hey! I’ve seen this before!”) stimuli to research participants and those who had seen something similar the day before would have a corresponding P300 spike in their EEGs.

To test, they had 26 students (6 males and 20 females) wear a camera attached to their clothing for four hours. (Two participants were removed from the analysis due to concerns about the quality of their data.) The camera footage obtained was then used to construct a concealed-information-test (CIT) also sometimes referred to as the “guilty knowledge test”. What this means is that various keywords relating to events taken from their actual camera footage filmed the day before were assembled along with other unrelated words. The researchers thought that if the participants saw situation relevant words describing events/places they had actually traveled past the day before, they would recognize it and their EEGs would show a P300 spike. This spike, if it happened, would tell the researchers that the witness had indeed seen the item described.

Half the participants were put into a condition called the “knowledgeable” group. Their footage would be described in the key words they were shown the next day. The other half were put into a condition called the “non-knowledgeable” group. Their footage would be entirely composed of irrelevant words that had nothing to do with what they had seen or passed by the day before. The researchers believed that the “knowledgeable” group would show the P300 spikes on their EEGs while the “non-knowledgeable” group would see nothing familiar and thus have no P300 spiking.

And they were right. The use of the P300 brain wave was highly effective in this particular scenario and the researchers believe this work moves the CIT closer to use in the courtroom. Specifically, they think details of the crime scene or a cell phone dropped at the scene could result in the P300 spike in perpetrators being interrogated. It would not really matter what the perpetrator said out loud. We can simply look at their P300 brain waves to see what really happened. The researchers report they were able to differentiate between knowledgeable and non-knowledgeable subjects with 100% accuracy.

From a litigation advocacy perspective, we think, as does, that this idea is just plain creepy.

Perhaps, like the two subjects in this article whose data was thrown out, the words or objects used could have idiosyncratic meaning and the P300 spike could occur and mean something very different from that the person being interrogated had been at the scene.

Perhaps, anxiety can trigger a P300 spike.

Who knows what P300 spikes are related to in total? Or even if they are related to different things for different people?

The way in which the words were introduced seems likely to affect response. If presented on a computer screen, what size is the font? What is the subject’s reading ability? Is there music accompanying the words? If the words are spoken aloud, the person speaking the words would need to be carefully trained, and the reliability of the results could be questioned on this basis, among others.

This would surely be subject to the same limitations that lie detector tests are, and the results are far from acceptable levels of reliability.

There is so much to question when scientists suggest a brain wave can tell us information that can result in the removal of liberty and freedom. We’d say this interrogation strategy has a long long ways to go before it’s ready for prime time.

Meixner JB, & Rosenfeld JP (2014). Detecting Knowledge of Incidentally Acquired, Real-World Memories Using a P300-Based Concealed-Information Test. Psychological Science. PMID: 25231899


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