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Archive for the ‘NeuroLaw’ Category
Confused about brain scans? Welcome to the club!
We’ve tried to keep up with the many studies/articles on neurolaw. We started tracking these when it was a new concept. It has gotten to be a bigger challenge as the pace has accelerated, but the importance of keeping up with this is growing along with the research pace. Brain scans are in. Brain scans are out. It happens faster than we can type. Just in the past few months…
- Lie-detection and neurolaw: do brain scans have a place in the courtroom?
- Brain Scan Evidence Rejected by Brooklyn Court
- fMRI lie detection and the Wonder Woman problem
- Can Brain Scans Detect Lying? Exclusive New Details From Court Hearing
Researchers are using brain scans for everything! They’re checking for brain activity in dead fish. They’re even putting people in brain scan machines with snakes which is just nasty.
Thankfully, two law professors are offering pretty straightforward information to help us weed through what makes sense and what doesn’t as more and more information on brain scans and neurolaw comes forward. Both pieces are available at no charge via SSRN:
1. Cherry-Picking Memories: fMRI-Based Lie Detection in the U.S. Courts by Jonathan R.H. Law.
This article discusses fMRI-based research techniques in the context of US federal courts. The fMRI is seen as providing data that is more prejudicial than probative. The authors then propose an approach to the Daubert standard and recommend that US courts wait a while before incorporating fMRI data into evidence.
2. Brain Imaging for Legal Thinkers: A Guide for the Perplexed by Owen D. Jones, Joshua Buckholtz, Jeffrey D. Schall, and Rene Marois.
This article provides an introduction for legal professionals to brain imaging. It describes the techniques and methods used by fMRIs and then offers a tutorial on reading and understanding a brain-imaging study. Finally, the articles shares information on how to avoid misunderstanding brain images and how to recognize when others are misusing brain images in legal contexts.
And, a third piece has been put out entitled: A Judge’s Guide To Neuroscience: A Concise Introduction with multiple authors. This one is put out by the Law and Neuroscience Project and is written especially for judges. You may find this one the most user-friendly in terms of vocabulary but all three are worth a read if you would like to understand the shifting sands of the neurolaw area a bit better.
Read them. We will too. Then come back for more updates on Neurolaw.
To be or not to be? Can you answer that question on-line?
Choosing to end one’s life has always been a controversial choice in Judeo-Christian societies, among others. But it used to be more of a private, highly personal and solitary consideration. Now it’s being written about and discussed (there are more than 100 comments on the article referenced here) online. I remember when the Hemlock Society was whispered about—now we talk about suicidal impulses for the world to see.
And, naturally, those discussions wind up in the courtroom. An odd case surfaced in the late spring (May 2010) of a licensed practical nurse who later claimed a “suicide chat room addiction”. In brief, a seemingly caring young woman who said she was a nurse would strike up conversations in chat rooms with people contemplating suicide. “She told some that it was all right to let go, that they would be better in heaven, and entered into suicide pacts with others.”
Turns out the alleged young woman was actually a middle-aged man (William F. Melchert-Dinkel, a 47 year old father from Minnesota) who says he gave between 20 and 30 people advice on how to end their lives (practical, how-to strategies). He is now being charged under the assisted suicide statutes and says he is sorry for the advice he dispensed online.
The case raises thorny questions about free speech, assisted suicide statutes (will they really cover this behavior?) and how we prosecute those who use speech as a persuasive tool in the demise of others. It is certainly as disturbing a question as many raised in our coverage of the neurolaw defense.
- Can a person be prosecuted for harmfully influencing depressed people?
- If I tell you it is alright to kill yourself and you do, am I legally responsible?
- What does it mean to make choices of our own? Is any other responsible for what I do with my own hand?
As we enter more and more into the virtual worlds of connection with strangers on-line, where do we draw the lines as to responsibility? It’s a scary question.
And the jury says: “His brain really DID make him do it!”
We’ve been tracking the stories and research (and products for sale) in the area of neurolaw for quite a while now. Neurolaw theory (more popularly described as “my brain made me do it”) is poised to be used more and more frequently in the courtroom. And it’s getting more attention in the mainstream media. Recently NPR broadcast a series on researchers working in the neurolaw area.
They discuss the differences in the brain structures and reactivity in the brain of the psychopath. Special attention is given to the amygdala and limbic system which are under-reactive in psychopaths. The researchers say that perhaps psychopaths should be treated as those with low intellectual function (and not given the death penalty) since they have the emotional IQs of a five year old. They simply do not have the capacity to make the right choices in morally charged situations. Why, say the researchers, should we execute someone who was born with a brain abnormality? They certainly did not ask to be born that way!
Detractors say that if you understand the differences between right and wrong (which psychopaths say they do) and yet rape and kill—you are responsible. The example of the Brian Dugan case is used in the NPR series but jurors found him guilty. As in, his brain did NOT make him do it.
However, the NPR series also examines the case of Bradley Waldroup which was described as a “why done it” rather than a “who done it” case. Waldroup committed a vicious murder—hacking the best friend of his estranged wife to death and then chasing his wife with a machete and cutting her numerous times. Prior to the assault and murder, Waldroup had been drinking and reading his Bible. Waldroup never denied the murder—in fact, he freely admitted he had done it.
But his attorneys presented information on a particular variant of the MAO-A gene (also known as the warrior gene because it has been associated with violence) and said Waldroup had the high-risk version of the gene. Prosecutors said Waldroup was simply “drunk and mad” and acted violently. “After 11 hours of deliberation, the jury convicted Waldroup of voluntary manslaughter — not murder — and attempted second-degree murder.”
Jurors say the brain evidence was “only part of” their deliberation and that they believed Waldroup had simply “snapped” and it was a case of “nature versus nurture”. Waldroup’s defense attorney, Wylie Richardson, said of the successful neurolaw defense: “I would use it again” under the right circumstances. “It seemed to work in this case.”
We’ve been waiting for this defense to work with a jury. This defense seems to fly into the face of significant Daubert challenges, but evidently it survived the process in Chattanooga. And if you read about the testimony, however strange it may seem to you on first blush you will see there is a good deal of hard science involved. Let’s see what happens next!
“That witness is lying and I can prove it”
We hate to be tricked. And we are always looking for sure ways to avoid it. We want magical secrets to detecting deception in others. While jurors want to detect deception on the part of parties and witnesses—trial lawyers want to identify who tells the truth in voir dire and jury selection.
Parlor trick strategies have been around for years and have become part of our collective consciousness about how to detect deception. There are also some research efforts to behaviorally define/detect deception.
In the more academic arena, we’ve been seeing efforts to introduce brain scans (aka fMRI’s or neuroimaging) into the courtroom as scientific evidence of deception for some time now. We’ve blogged about it a number of times, here and here and here.
Recently, Seed Magazine had a terrific piece on the controversy surrounding neuroimaging written by Moheb Costandi (a molecular and developmental neurobiologist turned freelance science writer and a pretty smart guy). He summarizes the evidence for (and not so much for) the use of neuroimaging in the courtroom. He concludes that no, neuroimaging is not built for the courtroom, less due to the technology but because of brains and how they work. We’ve tended to agree with this conclusion but also agree that time may change how we think and what we know about how the brain works. Until then, you stay tuned and we’ll keep watching writers, researchers, inventor-vendors and attorneys who try to push the limits on this fascinating new arena.
Neurolaw Update: Who’s in charge here—me or my brain?
Our brains. They seem to be all powerful. They make us do stuff. Stuff beyond our control or even awareness, or so it seems. For example, if you are a young (and presumably heterosexual, for this study) male, you are more likely to do something really risky if you are being watched by a young woman rather than another man. Now, that may not seem so unthinkable, but there are so many more! Our brains, or what we unconsciously do with them, distort reality. Male batterers consistently overestimate the rate of violence toward partners—researchers hypothesize batterers do this to justify their behavior and to seem more ‘normative’. We would guess female batterers might justify their behavior in much the same fashion. Not so much research there…
Our brains even trick us into doing things we may not want to do. Of course, we know that requests work better than orders (Mom’s version was ‘you get more flies with honey’) even when we are talking to ourselves! We also learn that we are more likely to do things others request of us and think of them more positively if they briefly touch us as they make the request, and yes, this one has the potential for getting very creepy, very fast. Some of us have brains that make us so empathic we literally ‘feel’ each other’s pain—it’s called “extreme empathy”. Remember the empaths on Star Trek? Not so different from what these ‘extreme empaths’ experience.
But whether we are ‘extreme empaths’ or not, almost all of us have had the experience of time standing still. Now we know how the brain makes that happen. It’s called ‘time dilation’.
And it happens to all of us when we are really afraid.
Except psychopaths. Because they don’t get really afraid. Their brains are wired differently and your look of fear as they approach you and your experience of ‘time dilation’ mean nothing to them. You are simply an obstacle on their path to your wallet (or car, or jewelry, or body, or significant other). Psychopaths’ brains are wired to achieve their objectives regardless of the consequences. They want what they want when they want it. The question has thus arisen as to their ultimate responsibility for their actions if they are controlled by a different sort of hard-wiring than the rest of us.
We blogged about this issue just a few weeks ago and again, a few months ago but more research has been published looking at this very question. Who killed John Lennon? Is the person responsible (Mark David Chapman) or is his brain responsible? Michael Gazzaniga wonders if we should rethink the insanity defense given what we are learning about free will and culpability. Is the fMRI technique ready to weigh in on the fate of murderers? Jurors in Brian Dugan’s case didn’t think so.
We will likely see more and more of the fMRI as we attempt to sort out where personal responsibility ends, how many psychopaths there are who do not murder, and as every-day people on jury duty are asked to make huge decisions about life and death. Our guess is that the fear instilled by the idea that ‘people like this exist’ will keep jurors from wanting to show mercy to the psychopath. But eventually, someone may find a way to make it happen. Until then, (and likely after then!) we’ll keep following the research.
Do our brains ‘make us’ murder?
After more than fifteen years of trial consulting we think sometimes we’ve seen it all. But there is always something new waiting in the wings to surprise us. Which is actually very cool. Issues around law and neuroscience (“my brain made me do it”) are being raised almost weekly (or so it seems). We’ve blogged about it a number of times and remain fascinated, amused, and sometimes alarmed by the courtroom decisions based on neurolaw. This week it’s all about murder.
In Canada, a man who killed a nun while having an epileptic seizure was released “under the strictest of conditions”. Martin Rondeau is thought to be most dangerous when he is asleep. He beat an elderly nun named Estelle Lauzon to death in a halfway house in 2007. Rondeau will now live with his mother and stepfather and is expected to take his medication, follow a curfew, sleep alone, and be required to both enter and leave the home with a personalized alarm code.
The Last Psychiatrist blog tells the engrossing story of a man who was failing financially and so did “the obvious thing: He strangled his wife while she was on top of him during sex; then strangled his 2 year old daughter who was sleeping on the floor beside their bed; stuffed their bodies in suitcases; then put his other two sleeping kids into their car seats and drove them to a bridge, tied rocks to their feet, and threw them in the river. Then he went to Cancun.”
The blog post goes on to tell us that Christian Longo is a classic narcissist and then breaks down his story into identifiable lies and ploys. The culmination of the story is that Mr. Longo wants to change the laws to allow the executed to donate their organs—to end his own life with a selfless act. It’s a terrific post (on a generally interesting blog) that tells us to think critically and know how to recognize baloney when we see/hear it.
Questions of responsibility in the face of illness (whether it is epilepsy or character disorder) are becoming increasingly important for us to consider.
- Where does personal responsibility end?
- What about all the people with epilepsy who never kill anyone during a seizure?
- What about all the narcissists who leave paths of interpersonal destruction in their wake but never kill their spouse and children (or friends or family or even strangers for that matter)?
Is there an appropriate end for personal responsibility? In an age of mandatory sentencing guidelines, can there be a ‘policy’ that justly deals with these peculiar cases?
And now the second hundred…
It seems hard to believe but over the last 7 months we have published 100 blog entries. We have gone from having no blog to having readership in every state and about 75 countries.
We started the blog for a couple of reasons. We wanted people to come look at our website, and frankly to consider us when they had need for the kind of services we provide. That has worked out well. Under the old rules of ‘how to grow your business’ you advertised like crazy alluding to your ability, and kept your actual knowledge under cover. The new business universe has changed drastically, and for the better. Now the strategy is much more one of ‘We will tell you what we do and a lot of what we know—and let you decide whether it fits your needs’. To us that feels like a better model.
We wanted to participate in what we were seeing as a lively online community of smart and helpful commentators on the leading edge of knowledge regarding society and the law. Bloggers like Anne Reed, The Situationist, Mark Bennett, Victoria Pynchon, Thaddeus Hoffmeister, Stephanie West Allen, Timothy Hughes and ‘Gideon’ have distinctly different voices, but have all made terrific contributions to our knowledge by sharing their perspectives. We like sharing ideas with smart and thoughtful people. And we wanted that discussion to include you.
There is no end of potential blogs we can post—we are confronted with new research, new trial strategies, and new takes on juror decision-making virtually every day. But what makes it a blog you want to read?
It would be helpful to hear from you on what topics struck you as most useful, or readable, or entertaining, or important. If there are topics you wish we would cover or develop more fully, let us know that, too.
It has been a challenging but fun First 100. Let us know where you want the next 100 to go, and we’ll see you there.
Doug Keene and Rita Handrich
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.
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