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Archive for the ‘NeuroLaw’ Category
Your brain is a liar: It will find what it wants before it even starts looking
Brains are pretty amazing. And the research on how our brains affect us comes out so fast it’s hard to keep up with–so we’re simply giving you a post with a hodge-podge of research findings. Prepare to be amazed (or perhaps amused).
Farnam Street blog reminds us that we tend to put more stock in things we already believe than in things that disconfirm/disprove our pre-existing beliefs. When I was in graduate school it constituted the snarky observation that we tend to “draw the curve before we plot the data”. We know what we are looking for, and it leads us to find it (more often than it is actually there). That might also explain why we “sharply and persistently” disagree with scientific experts on complex issues from climate change to disposing of nuclear waste. We think we know better. And who can we trust more than our own selves?
Well, here’s the bad news. We shouldn’t really trust ourselves. Our brains are inveterate liars. They trick us and make us believe things are true that are simply likely not true. (What a wonderful excuse—“It wasn’t me that lied, it was my brain…”)
- Ever been in a group that results in you experiencing a lot of pain and discomfort? Like a running group or a fitness boot camp? The more pain and discomfort or willpower it takes to endure a group experience—the more likely we are to say we really like that group. The worse it is, the more we say we like it! We have to have some way to explain why we would do that to ourselves. Perhaps this explains the bonding often seen among jurors on lengthy and difficult trials.
- Even when we sort of know someone is being insincere when they flatter us, we like it so much that we tend to do more of what they want then we would if not insincerely flattered. Hmmm. How about this? “This jury is one of the brightest groups I have ever seen—I’m sure you won’t be misled by vapid rhetoric—you want the real facts.”
- Ever said “time flew by” and therefore assumed you must have been having fun? Faulty logic for sure but also your brain lying yet again. The researchers in this study lied to participants about how much time had passed in their completion of a dry and boring task and the participants thought they must have enjoyed it since they thought the time had flown. “Gee. We thought that testimony on accounting rules would take only two hours but can you believe this? He talked for six hours!” (Maybe that one wouldn’t work so well….)
- We believe we know that cell phone towers affect us negatively with “rashes, headaches, nausea and disrupted sleep”. We even have symptom remission when we travel away from the tower. Oddly enough, the cell phone tower in this particular lawsuit was turned off and could not possibly have been causing the reactions experienced by a community of people with simultaneously lying brains.
- Our brains lie to us in ways that make us feel horribly self-conscious; enraged and aggressive; cognitively lazy; spiteful in the form of shadenfreude; and make us afraid of rampant mind-control turning us into zombies.
The point of all this is that our brains process things idiosyncratically. What I see/hear is perhaps not what you see and hear. You want to be sure that your case narrative communicates the same things to all (or at least most) of your jurors. Even though we see what we believe, we are also aware that we make mistakes. Join the jurors in their initial misimpression, and guide them to clarity and accurate understanding. Don’t provoke jurors to disagree with you. Get your brains all on the same page.
On brains, brain damage, pedophilia and other things we don’t like
Gideon has a thoughtful post on the question of free will in pedophiles based on an earlier post at the Neuroskeptic blog. In essence, he questions how we should view/think of/treat pedophiles in our criminal justice system if there are times when sexual urges directed at children are caused by brain damage rather than a pre-existing sexual preference for children. Can pedophilia be explained by a biological imperitive? It’s a thoughtful and difficult question to pose, as Gideon notes at the end of his post by saying he is not supporting pedophilia—he is merely posing the question.
The question is timely. We are seeing increasing use of “my brain made me do it” defenses for crimes with NoLie MRI and Cephos offering commercial testing using fMRIs to determine deception for several years now. (NoLie MRI was involved in a widely reported case this last year where their brain scans were submitted as evidence in a juvenile sex abuse case but then withdrawn after protests from the scientific community.)
Robert Weisberg (co-director of the Stanford Criminal Justice Center) says fMRI’s are increasingly being used as mitigating evidence in the sentencing phase to show that brain damage contributed to the behavior and makes the defendant less culpable. For example, a Chicago court recently allowed fMRI evidence to be presented by the defense to ‘prove’ the convicted defendant was psychopathic in the sentencing phase. The defendant was sentenced to death anyway. Perhaps the most shocking use of the fMRI occurred recently in India where a young woman involved in a romantic triangle was convicted of killing her ex-fiancee based on an fMRI scan that “purportedly showed she had a memory or “experiential knowledge” of committing the crime”.
The admissibility of these brain scans to ‘prove’ deception (or psychopathy, or even memories of committing murder) rests on individual judges, and skeptics abound including leading researchers in the neuroscience arena who simply say we do not yet know enough about what these results mean to make life and death decisions based on fMRI ‘evidence’. Even putting aside questions of whether the fMRI technology works (and the Stanford article provides a lot of good information on the question) how can you get past the natural (and understandable) negative reaction of jurors to behavior we find unconscionable? It seems most likely that jurors who are predisposed (by bias or other evidence) to agree with whatever the “scientific evidence” says will see it as confirmatory, and those who disagree with it will see it as junk science.
The reason that Daubert motions were endorsed in the first place was to avoid cluttering trials with junk science. Is this a step backward?
“Aggression genes”, Asperger’s and Absolution (for criminal acts)
As we hear more and more about the brain in the courtroom, it only makes sense that we would also be hearing about genes and other conditions that are put forth as explanations/defenses for criminal behavior. Isn’t it nice when the world makes sense?
In 2007, Abdelmalek Bayout acknowledged stabbing and killing a man and was sentenced to 9 years and 2 months. But an appeals judge in Italy cut Bayout’s sentence by a year after learning Mr. Bayout has gene variants linked to aggression.
In the United States, a physics graduate student was diagnosed with Asperger’s Syndrome during his 2004 trial on seven counts of arson and one count of conspiracy in vandalizing/firebombing more than 130 vehicles in 2003. When the judge ruled that his Asperger’s diagnosis could not be introduced, the 9th Circuit Court of Appeals tossed out the arson convictions leaving only the conspiracy count. Prosecutors sent him back to prison, receiving the original 100 month sentence that William “Billy” Cottrell originally was sentenced to for both counts.
The question of whether ‘aggression genes’ or Asperger’s (characterized as a social naivete with concrete reasoning and inability to understand when people are lying) can excuse criminal behavior—from murder to firebombing—remains an open issue. Defense attorneys can argue predisposition (through genes or disorder) or even pre-determined behaviors, and prosecutors can argue personal responsibility, knowledge of right and wrong, research on twins showing not everyone behaves illegally, the importance of consequences for actions, and social mores.
Our genes are not deterministic. Our diagnosed medical/mental conditions do not excuse us from being responsible for behaving badly towards others. Except when a defense argument appeals to the mysteries of genetic codes and their impact on behavior and the situational determinants of behavior weighing on all of us but more heavily on some than others. For now, the jury is out on whether convincing defense arguments can be made on criminal cases.
‘Sexsomniacs’ and night terrors that kill…where does responsibility end?
We’ve heard the ‘tired’ jokes about sleep-talking and not being responsible for what you say when you are asleep. But are you responsible for what you DO while you’re asleep? Not according to some recent court cases that have hit the media.
There is the “devoted husband” of forty years killed his wife by strangulation while in the throes of a dream about fighting off intruders. Three psychologists testified that he was not responsible for his actions and the judge agreed. Brian Thomas had apparently had “night terrors” for about fifty years without ever being treated. (His condition was confirmed during ten months spent in prison.) At home, he and his wife slept in separate bedrooms but shared a double bed while camping in a campervan. “There is nothing that he has to feel guilty about—it is just all so tragic” said a neighbor.
On a different note, we have the ‘sexsomniac’ case. In this trial, a woman woke up and found “a strange man lying on top of her, engaged in sexual intercourse”. There is no mention of rape—the man was simply “engaged in sexual intercourse”. Even evidence that he had been up all night the day before, used magic mushrooms and then had more than 16 drinks at a party prior to “engaging in sexual intercourse”—had no impact on the verdict. “The combination of the intoxicants and his sleep disorder brought on the illness” said his attorney who also said it was a “very unusual case and a very unusual diagnosis”. Jan Luedecke was determined to be of “no significant threat to the community” and freed. He was, after all, asleep. His relapse prevention program involves stress reduction, a maximum of 2 alcoholic drinks per week, getting 8 hours of sleep per night, not to stay up late or go to late parties, and to not fall asleep at parties.
David DiSalvo at Brainspin blog wonders if sleepwalking is the next insanity defense and lists a number of other cases where an “I was asleep” defense was used and only infrequently succeeded. He opines that whether a murder is explained by a sleep disorder (even a severe one) is debatable at best.
These are the sorts of cases that jurors find tough to swallow and frankly, we understand why. It is intriguing that all these cases (the two described here and the four in Disalvo’s blog post) involve men who killed or assaulted women. It is curious that apparently the sleep disorders of women are not severe enough to result in murderous behavior. Absolving someone of murder due to a sleep disorder assumes we know much more about the brain than we actually do know.
Sleep disorders are neurologically based and so this could be categorized in with the “my brain made me do it” defenses. There simply is not a solid test as of yet for identification of sleep disorders and certainly not one to determine which sleep disorders are severe enough to explain murder.
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