Archive for the ‘NeuroLaw’ Category
We’ve written about neurolaw fairly routinely here and recently Science Magazine took a look at what they call “the growing use of neurobiological evidence in criminal trials”. In our own experiences with pretrial research, mock jurors are not often accepting of “my brain made me do it” defenses and will roll their eyes and sometimes openly mock the defense claims. This exemplifies the uphill battle that neurobiological defenses face, but they can succeed. There are increasing numbers of cases with such defenses presented in court. A recent article in the Journal of Law and Biosciences reported that in 2012 more than 250 cases involving “my brain made me do it” defenses were brought to trial and this was more than double the number of similar claims made in 2007. Science Magazine offers this case summary to illustrate:
In 2008, in El Cajon, California, 30-year-old John Nicholas Gunther bludgeoned his mother to death with a metal pipe, and then stole $1378 in cash, her credit cards, a DVD/VCR player, and some prescription painkillers. At trial, Gunther admitted to the killing, but argued that his conviction should be reduced to second-degree murder because he had not acted with premeditation. A clinical psychologist and neuropsychologist testified that two previous head traumas—one the result of an assault, the other from a drug overdose—had damaged his brain’s frontal lobes, potentially reducing Gunther’s ability to plan the murder, and causing him to act impulsively. The jury didn’t buy Gunther’s defense, however; based on other evidence (such as the fact that Gunther had previously talked about killing his mother with friends) the court concluded that he was guilty of first-degree murder, and gave him a 25-years-to-life prison sentence.
This is precisely the sort of reaction we have come to anticipate from mock jurors. You cannot “see” the impact of mental illness or head injury, so mock jurors look for evidence to support guilt despite allegations of brain injury or mental illness. Yet, as pointed out in the Farahany article in the Journal of Law and the Biosciences, the increasing use of “my brain made me do it” defenses means the defense is likely here to stay and neuroscientists need to enter the picture to help us all make sense of the defenses and to know whether the defense is legitimate or if the science cannot yet support the defense claims.
Neuroscientists should be at the forefront of this conversation—as experts in criminal courtrooms, in public presentations, through accessible writing for public audiences, or by filing amicus briefs in legal cases where neurobiological evidence is at issue. Neurobiological evidence has profound implications for some of the most significant decisions we make in law and policy. It’s time we better understand how it’s being used and start to address how it may be better used in our criminal justice system.
From a litigation advocacy perspective, we think this makes a lot of sense. When we have had cases involving illegal or grossly inappropriate behavior following a head injury, it has been very helpful for our jurors to understand the science of what areas of the brain control behavior and were damaged by some sort of trauma. Even when they do understand basic brain function though, the evidence is seen as something for which to have empathy but our mock jurors want to fall back on individual responsibility and believe the defendant should be responsible for behavior.
The implications of the tragedy (both the brain injury of the accused and the victims of their aggression) is too distressing for many people to really accept. If jurors want certainty in life, then the prospect that there are people walking the streets looking mostly normal, who are yet subject to intense, violent outbursts is too upsetting. There is a fear that if we excuse behavior based on genes or brain injuries, we can never feel safe again.
For the time being, the challenge will be to find jurors who can tolerate the uncertainty of life, and the potential that head injuries and biochemistry can turn Dr. Jekyl into Mr. Hyde. Until the defense can come up with a way to help jurors hearing “my brain made me do it” defenses feel safe excusing a defendant, the neurobiological defenses will likely continue to be largely ineffective.
Farahany, N. (2016). Neuroscience and behavioral genetics in US criminal law: an empirical analysis Journal of Law and the Biosciences DOI: 10.1093/jlb/lsv059
We read a lot of articles in order to blog regularly and often find intriguing (not to mention weird, odd, esoteric, freakish) pieces of information to which we do not wish to devote an entire post—yet, also do not wish to hoard the information. At times like these, you will see a collection of the strange and wonderful tidbits that cross our path.
Sleep Paralysis’ Demons
This is a scary thing we’ve blogged about before but sort of as an aside in a post primarily about exploding head syndrome. Yes. That’s really a thing. Today though, we are focused on the horror that is sleep paralysis (made only more horrifying one might imagine, by the accompanying presence of a sleep demon). Apparently, 40% of us will suffer from sleep paralysis at some point in our lives.
“This terror-inducing experience occurs when a person on the border between wakefulness and sleep gains partial consciousness. The dreamer may perceive that a menacing, oftentimes-otherworldly intruder is in their room or bed, yet they are incapable of moving or screaming—even as the creature begins choking, crushing, raping or attacking them. Scientists believe it’s all a hallucination, but in the throes of an attack, sleep paralysis’ demons can be deeply convincing.”
A specialist on this disorder makes perhaps the biggest understatement of all time in saying this experience can be “pretty troubling”.
“It’s a pretty troubling event for at least a portion of the people who have the disorder,” says Allan Cheyne, a retired cognitive psychologist, formerly at the University of Waterloo. “They might think it was demonic possession or alien abduction, the beginnings of a stroke, incipient psychosis that’s going to get worse or that they’re never going to come out of the paralysis.”
At least if this happens to you, you will know what it is and that sleep paralysis demon is not truly real. You’re welcome.
Assassins who apparently were not reliable vendors
It can be a hard lesson to learn that one should always vet new vendors carefully. Perhaps it is an even harder lesson to learn that your spouse wants to have you killed. All’s well that ends well for the potential victim in this murder for hire story. A man paid hit men to kill his spouse and even paid them a bonus for reporting a successful kill. Then, she showed up at her own funeral and the man was unnerved to discover she was not an apparition but living and breathing. The story tells the tale of “three unusually principled hit men” and the events surrounding the failed murder plot. Her husband has been sentenced to prison for nine years in Melbourne, Australia and the woman says she is starting a new life.
A nose for criminals
You know that dogs have a terrific sense of smell and now that powerful nose is being put to work to see if someone was at the scene of a crime. Apparently dogs can get it right about 80-90% of the time and there were no false positives generated after a year of training the dogs. If the dogs erred at all, they failed to identify someone who was there—for some reason they never falsely accused anyone. Good doggie!! The study itself is open access at PLOSONE. The field of study is called the science of “odorology” and relies on the dogs powerful sense of smell and extensive training.
“It has been used in France since 2003 in police investigations to establish that an individual has been present at a crime scene. The method is based on the fact that each person has their own scent and relies on the powerful canine sense of smell (which can be 200 to 10,000 times more sensitive than that of a human being).”
How big was that spider? It was HUGE!!!
It will come as no shock to the arachnophobes among us that when you are fearful of spiders they appear to be larger to you. This was research where the scientists had participants look at photos of birds and spiders and butterflies. Only those participants who were “highly fearful” overestimated the size of the spiders compared to butterflies. The researchers, in a stunning finding, say that “perception of even a basic feature such as size is influenced by emotion”. They are hopeful their study will be useful in work with phobia treatments.
Men with beards are more likely to be sexist (and other hairy issues)
Beards keep coming up here and we dutifully write about them. In the event you missed it, back in 2011 we blogged about a study saying jurors are more likely to convict defendants with beards and this year we wrote about spotting the lumbersexual in your venire panel. Here’s a new study telling us that men with beards tend to be more sexist. The researchers hypothesized that sexist men are more likely to grow beards in order to appear more masculine and dominant. On a completely unrelated note, another study recently examined whether bald men were indeed more virile. As a public service, here is the link to that study. Finally, while we have not blogged about the virility of bald men, we have blogged about how bald men cannot help but exude confidence, masculinity, authority, and power!
Marchal S, Bregeras O, Puaux D, Gervais R, & Ferry B (2016). Rigorous Training of Dogs Leads to High Accuracy in Human Scent Matching-To-Sample Performance. PLoS ONE, 11 (2) PMID: 26863620
Whether you are involved in criminal or civil litigation, before long you are likely to run into a forensic neuropsychologist and a neuropsychological exam. A new article (mostly directed at civil litigation involving adults) discusses 12 forms of bias and how to mitigate those biases. You may want to review it carefully (or have an expert witness review it carefully) prior to trial. The article is written by three practicing forensic neuropsychologists and is intended to assist both the expert witness and both sponsoring and examining attorneys. For the purposes of this blog post, which is only meant to raise your awareness of this resource, we will list the 12 forms of bias that are identified with the author’s recommendations on how to mitigate. This is an information-rich resource, so for additional background and details, please review the article itself.
Logistical and administrative biases (or how the neuropsychologist has arranged the evaluation and the sources of information upon which they rely).
Conflating clinical and forensic roles. There is a clear distinction between these roles and they should not be mixed. The authors give specific examples and describe the differences between a treating expert and a forensic neuropsychologist charged with assessing and writing a report but not with treatment or advocacy.
Financial/payment bias. The authors describe payment arrangements on a continuum from “straightforward to murky to highly biased”. They recommend a “fee for service” arrangement and offer examples of how alternate arrangements can be questioned in open court.
Referral source bias. The authors describe “Rule 26 disclosure” and how forensic neuropsychologists repeatedly retained by a specific attorney can be seen as “hired guns” by jurors. The authors describe multiple ways you can “see” a referral source bias in a testifying expert.
Self-report bias. The authors describe how some evaluators forget the importance of verifying the report of the examinee with workplace, school and family reports and prior testing to ensure the reports are accurate. They discuss secondary gain, misremembering pre and post injury events, or situation-specific amnesia.
Statistical biases (under-utilization of base rates and ignoring normal variance in test scores).
Under-utilization of base rates. Base rates are often confusing for jurors and it is important that a neuropsychologist uses them accurately even though the authors stress evidence that neuropsychologists are both unaware of base rates and under use them in their evaluations.
Ignoring normal variance in test scores. Another statistical bias is not understanding normal variance in test scores and thus making inappropriate conclusions.
Cognitive, personal and attributional biases.
Confirmation bias. This is a bias we often discuss on our blog and it is also a trap for the unwitting evaluator. Essentially, confirmation bias occurs when you use your pre-existing beliefs to support your hypotheses rather than seeking confirmation in the data.
Personal and political bias. While this may seem to be an obvious bias for the evaluator to guard against, it is commonly seen according to the authors. Additionally, they discuss a term from the psychotherapy arena: countertransference and warn against examinee characteristics “such as age, attractiveness, gender, ethnicity and socioeconomic status” that could bias the examiner either toward or against the examinee.
Group attribution error. This occurs when the examiner makes an assumption about an individual based on the belief that the “individual’s traits are representative of an entire group”. This extends far beyond race and ethnicity with examples offered of examiners who think everyone with Alzheimer’s should present in a certain fashion or everyone with head injuries should have common symptoms, or that everyone with fibromyalgia has a somatoform disorder.
Diagnosis momentum. This is the tendency for a diagnosis to be seen as unquestionably accurate as increasing numbers of people select that specific diagnosis rather than performing a complete evaluation to ensure the validity of the diagnosis of record. This could obviously have major impact on case outcome.
Good old days bias. This is a bias held by the examinee rather than the examiner that may result in self-reports that over-report the level of past function. This makes the examination of prior records imperative and its presence is often seen as a hallmark of a “psychological process that occurs post-injury”.
Overconfidence. This bias happens when an individual neuropsychologist grows sloppy in their work because they feel experienced enough to “know the truth”.
Naming biases seems to be epidemic, kind of like coming up with clever Twitter hashtags. Ultimately, the point is that people try to make sense of confusing or disruptive thoughts and feelings as quickly and effortlessly as they can, even if it requires torturing the truth. Overall, the authors acknowledge there are countless other biases that exist and this is a starting point for assessment of a forensic neuropsychological evaluation. They offer multiple strategies for the forensic evaluator to defend against biases (and thus for the attorney who wishes to examine potential sources of bias in the report). This is a useful resource to keep on hand and use to assess biases that may be present in court-ordered forensic neuropsychological reports.
Effective trial strategies for reducing biases often come from teaching jurors what the possible biases are, and how making smart and correct judgments requires ignoring or avoiding them. Warn jurors of how tempting it can be to race to conclusions, pointing out some of the pitfalls, and tipping them off that getting seduced into getting hooked into these false impressions will not only be a source of error, but for everyone who wants to be correct, it will also be a source of regret.
Richards, P., Geiger, J., & Tussey, C. (2015). The Dirty Dozen: 12 Sources of Bias in Forensic Neuropsychology with Ways to Mitigate Psychological Injury and Law, 8 (4), 265-280 DOI: 10.1007/s12207-015-9235-1
Those of us who work in patent litigation are used to strange bedfellows, but this is irony at its best. You may have heard about CRISPR as it’s been all over the media with hopes and promises and endless controversy. Essentially, it is a way to edit the genome to remove hereditary diseases caused by mutated genes. Here is a nice CRISPR primer from Gizmodo.
The emergence of CRISPR has caused multiple concerns about “designer babies” and what happens if the CRISPR operator snips a bit too much out of someone’s DNA. The international symposium on CRISPR (held in December, 2015) concluded they need to be open to studying the issue further. “
The symposium final statement asserts that germline gene editing for human reproduction — that is, genetically altering sperm, eggs, or embryos and initiating a pregnancy with them — has not been shown to be safe or effective, and that for now “it would be irresponsible to proceed.” Nor should any such effort be made, it says, until “there is broad societal consensus about the appropriateness of the proposed application.”
If you are still wanting clarity on how all this works, you can also watch this 4 minute video explaining CRISPR from MIT.
In the meantime, there is a big fight going on as to just who invented CRISPR. A well-regarded scientist recently wrote an article on the history of CRISPR and has been attacked for trying to cut women out of the picture as well as not disclosing conflicts of interest. The invention has been tied up for years as researchers argue about who got to the USPTO first. Now, like King Solomon and his decision to cut the baby in half so each “mother” could have part of it, the USPTO has decided they will decide using an “interference law” already expired but in place at the time the patents were filed. Here’s what WIRED magazine says in the article:
The US Patent Office will resolve a dispute over one of the hottest biotech breakthrough of the decade, the genome-editing technology Crispr/Cas9, through an arcane proceeding that technically should no longer exist. Because the disputed patents date back to just before a new law took effect in 2013, the patent office will work out who gets credit for inventing Crispr via a so-called interference proceeding—probably one of the last such proceedings ever.
It is the sort of dilemma we can imagine causing high distress for mock jurors. Here is technology that could result in removing inherited and often deadly disease from ever developing. On the other hand, there are those who insist this technology will result in “designer babies” and that scientists cannot be trusted to behave ethically around such hot-button (and financially lucrative) issues. These are case themes that would result in strong feelings all the way around. Yet, there was collaboration amongst the scientists and we think our mock jurors would say they should simply share the wealth. And then there are those who are adamantly opposed to ownership of genetic technology…
Even in dry and often esoteric and confusing cases, ultimately the story is always about people. In this case it is the scientists on both sides of this dispute, and their respective compelling personal stories. This is one we will continue to follow, and we encourage you to follow the links in this post and educate yourself on the hope and the drama this high-tech invention is prompting.
We’re taking a break until 2016 so we’ll see you in January!
Most of us grew up watching the weather report on TV and seeing a NORAD ‘Santa Tracker’ showing where Santa and his sleigh were on their way for a long night of work. But this is 2015 and if you celebrate the holiday, you likely want something a bit more scientific to show you that there is a “Christmas spirit” if not a Santa Claus. Thankfully, we can rely on the annual December issue of the British Medical Journal to enlighten us on holiday traditions and offer a light-hearted look at important questions on many of our minds.
In this case, the researchers wanted to figure out if there was a “Christmas spirit” within the human brain. The authors are neurology researchers, neuroimaging researchers, a professor of clinical physiology, and a medical physicist. A quick glance at the author names on this paper will show you that they are presenting, as they describe it themselves, “a cross cultural group study with functional magnetic resonance imaging” to “detect and localize the Christmas spirit in the human brain”. Participants were 10 “healthy people from Copenhagen who routinely celebrate Christmas and 10 healthy people living in the same area who have no Christmas traditions”. Some further research into whether this project was the result of typical, careful funding proposals or left over slush funds that were set to expire by Christmas morning seems warranted. But our skepticism at this time of year has an unfortunate “Scrooge-like” quality, so we won’t look very hard.
The participants completed a questionnaire about their Christmas traditions, feelings associated with Christmas and their ethnicity. The researchers are careful to let us know “no eggnog or gingerbread was consumed prior to the scans”. While the participants were in the MRI, they were shown 84 images (displayed for 2 seconds each and organized so there would be six Christmas associated images and then six images devoid of Christmas symbolism).
The researchers say they found a “cerebral response when people view Christmas images, and there are differences in this response between people who celebrate Christmas compared to those with no Christmas traditions”. They also greatly contribute to science in this area by saying there is a “functional Christmas network comprising several cortical areas, including the parietal lobules, the premotor cortex, and the somatosensory cortex”. These areas of the brain have been shown in previous studies (according to the authors) to be related to spirituality and transcendence, experiencing emotions shared by others, and “observation of ingestive mouth actions” which the researchers think is likely related to recall of shared meals with loved ones. All in all, they say, “these cortical areas possibly constitute the neuronal correlate of the Christmas spirit in the human brain”.
The researchers have carefully thought through their study design and interpretations and have compelling rejoinders to any of their colleagues whom they “suspect could be afflicted by the aforementioned bah humbug syndrome”. They would like further research on this issue—perhaps with subjects who’ve been given “tacky jumpers” (known here in the US as ‘ugly Christmas sweaters’) as gifts since they may well have different brain activity than those who received more attractive gifts for the holiday. They close with this comment in the acknowledgements section…
“We call ‘dibs’ on any profitable non-invasive or even invasive treatment of the bah humbug syndrome. We are currently preparing a patent application on a Santa’s hat you can buy for family members with symptoms. When they start grumbling at Christmas dinner, with the touch of a button you can give them electric stimulation right in the Christmas spirit centers.”
Hougaard A, Lindberg U, Arngrim N, Larsson HB, Olesen J, Amin FM, Ashina M, & Haddock BT (2015). Evidence of a Christmas spirit network in the brain: functional MRI study. BMJ (Clinical research ed.), 351 PMID: 26676562