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Archive for the ‘NeuroLaw’ Category

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?

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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 Loonylabs.org, 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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Admissibility of brain scans in criminal trials

Wednesday, October 1, 2014
posted by Rita Handrich

brain normal or murdererIt’s been a while since we’ve done an update on neurolaw issues and we think you’ll want to read the entire article upon which this post is based. The article is published in Court Review: Journal of the American Judges Association (which is probably a journal you would benefit from perusing regularly). The article (authored by a psychiatry professor with both MD and JD degrees) offers a review of past courtroom use of the Positive Emission Tomography (commonly referred to as a PET scan) and their potential admissibility for criminal trials. This is obviously a very contentious topic but one that is essential for trial advocates to monitor.  Here are just a few of the thoughts on (past and future) admissibility of the PET Scan that Dr. Rushing offers to the judges for whom the journal is written.

Pretrial Competency Hearings:

If during pretrial examination, a defendant is found incompetent to stand trial, the examiner offers a diagnosis and a prognosis for when (and how) competency can be restored. If the examiner believes competency cannot be restored, “a PET scan can help illustrate the brain-based abnormality that the examiner detected”.

Guilt Phase of Criminal Trials:

During this phase of a criminal trial the PET can “elucidate damage to areas of the brain that are involved in cognitive functions such as judgment and impulse control”. The author comments that prosecutors may challenge the defense expert’s ability to establish a causal link between the violence and the brain damage (and those challenges have often been successful in excluding PET evidence). However, she says, “PETs colorful imagery of brain damage can be useful during trial or in plea bargaining discussions”.

Penalty Phase of Criminal Trials:

The author comments brain-based deficits are a mitigating factor in cases of both capital and non-capital defendants. She cites 2004 case law mandating the consideration of cognitive and/or neuropsychological limitations even when those limitations have no direct link with homicidal behavior. Thus, she recommends the use of PET scans as mitigating evidence during the sentencing phase of a capital murder trial. This evidence could help a jury understand the limitations of the defendant and thus, they may impose a lesser sentence.

Ineffective Assistance of Counsel Claims for Failure to Explore Brain-Based Abnormalities:

Failure to present evidence on brain damage has been a “factor in overturning death sentences in ineffective-assistance-of-counsel cases”.

Finally, the author opines that the rules of evidence offer clear guidelines regarding “when and for what purposes” evidence such as PET scans can be introduced. She identifies a list of questions for judges to considering at various stages of trial.

Whether you think, as we do, that the colorful PET scans are not yet ready for prime time use in courtrooms around the country or not–when an article is published in a journal directed at judges–it’s probably a good idea to have a look!

Rushing, SE (2014). The admissibility of brain scans in criminal trials: The case of positron emission tomography. Court Review, 50 (2)

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TJE_logoThe August issue of The Jury Expert is up and we think you’re going to want to see this. Here’s a rundown of the articles you’ll find at the website.

Demographic Roulette: What was once a bad idea has gotten worse. Authored by Doug Keene and Rita Handrich with a response from Paul Begala, this article takes a look at how the country has changed over the past 2 decades and our old definitions of Democrat or Republican and conservative or liberal are simply no longer useful. What does that mean for voir dire? What should it mean for voir dire? Two very good questions those.

If it feels bad to me, it’s wrong for you: The role of emotions in evaluating harmful acts. Authored by Ivar Hannikainen, Ryan Miller and Fiery Cushman with responses from Ken Broda-Bahm and Alison Bennett, this article has a lesson for us all. It isn’t what that terrible, awful defendant did that makes me want to punish, it’s how I think I would feel if I did that sort of terrible, horrible awful thing. That’s what makes me want to punish you. It’s an interesting perspective when we consider what makes jurors determine lesser or greater punishment.

Neuroimagery and the Jury. Authored by Jillian M. Ware, Jessica L. Jones, and Nick Schweitzer with responses from Ekaterina Pivovarova and Stanley L. Brodsky, Adam Shniderman, and Ron Bullis. Remember how fearful everyone was about the CSI Effect when the research on the ‘pretty pictures’ of neuroimagery came out? In the past few years, several pieces of research have sought to replicate and extend the early findings. These studies, however, failed to find support for the idea that neuroimages unduly influence jurors. This overview catches us up on the literature with provocative ideas as to where neurolaw is now.

Predicting Jurors’ Verdict Preference from Behavioral Mimicry. Authored by Matthew Groebe, Garold Stasser, and Kevin-Khristián Cosgriff-Hernandez, this paper gives insight into how jurors may be leaning in support of one side or the other at various points during the trial. This is a project completed using data from actual mock trials (and not the ubiquitous undergraduate).

Our Favorite Thing. We often have a Favorite Thing in The Jury Expert. A Favorite Thing is something low-cost or free that is just fabulous. This issue, Brian Patterson shares the idea of mind mapping and several ways (both low-tech and high-tech) to make it happen.

The Ubiquitous Practice of “Prehabilitation” Leads Prospective Jurors to Conceal Their Biases. Authored by Mykol C. Hamilton, Emily Lindon, Madeline Pitt, and Emily K. Robbins, with responses from Charli Morris and Diane Wiley, this article looks at how to not “prehabilitate” your jurors and offers ideas about alternate ways of asking the question rather than the tired, old “can you be fair and unbiased?”.

Novel Defenses in the Courtroom. Authored by Shelby Forsythe and Monica K. Miller, with a response from Richard Gabriel. This article examines the reactions of research participants to a number of novel defenses (Amnesia, Post-Traumatic Stress Disorder (PTSD), Battered Women Syndrome (BWS), Multiple Personality Disorder (MPD), Post-Partum Depression (PPD), and Gay Panic Defense) and makes recommendations on how (as well as whether or not) to use these defenses.

On The Application of Game Theory in Jury Selection. Authored by David M. Caditz with responses from Roy Futterman and Edward Schwartz. Suppose there was a more predictable, accurate and efficient way of exercising your peremptory strikes? Like using a computer model based on game theory? In this article, a physicist presents his thoughts on making those final decisions more logical and rational and based on the moves opposing counsel is likely to make.

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The American Bar Association is seeking nominations until August 8, 2014 to help it decide on the Top 100 law blogs (“Blawgs”). We have been in the ABA Top 100 for the past 4 years and would like to make it 5! If you like this blog, please nominate us (it’s fast and free) here. THANKS! Doug and Rita

WOD-Neuroscience

We regularly follow the neurolaw literature and about a year ago, we blogged about how judges are softer on crime when educated about the brains of psychopaths. Well. Judges are people too and a recently published study shows it isn’t just judges who are affected by neuroscience education. While the idea that flashy pictures alone can unduly influence jurors during a “his or her brain made him do it” defense presentation has been debunked, apparently a lecture on neuroscience can still influence individual ideas about punishment and the Defendant’s responsibility for their actions.

The researchers were interested in seeing if they could manipulate beliefs about free will among their participants. They began with the assumption that most of us believe in free will as opposed to determinism or fate. Then in four separate experiments with undergraduate college students, the researchers measured attitudes toward punishment for criminal behavior and then began to erode the participants beliefs in free will by educating them on neuroscience.

What they found was that as knowledge about neuroscience increased, the belief in free will decreased as did the length of sentences recommended for criminal behavior.

In other words, as participants learned more about the biological (or as the researchers labeled it, mechanistic) bases for behavior, they held the alleged criminal less responsible and believed the punishment should be less severe. The participants educated about neuroscience had less of a desire for retribution than did those who were not educated in neuroscience. From a litigation advocacy perspective, these studies have important ramifications.

If the findings are accurate, a convicted Defendant whose defense included a neuroscience education might receive in a lesser sentence.

The Prosecutor will want to focus on personal responsibility and the controversial nature of neuroscience research in order to maximize punishment decisions.

Shariff AF, Greene JD, Karremans JC, Luguri JB, Clark CJ, Schooler JW, Baumeister RF, & Vohs KD (2014). Free Will and Punishment: A Mechanistic View of Human Nature Reduces Retribution. Psychological science PMID: 24916083

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