Archive for the ‘NeuroLaw’ Category
Sometimes academics make the most of a clever turn of phrase. But this post isn’t about sex and it isn’t about Marilyn Monroe. Instead, it is about everyone’s favorite other topic: the CSI effect. Am I right? That is your favorite other topic, isn’t it?
Even though there have been growing indications that fear of the CSI effect is over-blown, less than a year ago the ABA published recommendations on countering the CSI effect. You may remember hearing about the research saying that even showing jurors pictures of fMRI brain scans was wildly persuasive. We’ve actually covered a lot of the varying research on neurolaw and you can review that here on the blog. Some of it is hard to believe. And much of the ‘research’ is almost certainly wrong.
This time though we have a bit of dry reality from a review of the brain imaging studies that have had the most press. The first (McCabe and Castel, 2008) essentially said that when you show people photos of fMRI scans, that information is more powerful than a bar chart showing actual data counts. The second (Weisberg, Keil, Goodstein, Rawson & Gray, 2008) essentially said that poor explanations of varying psychological phenomena were seen as more convincing when accompanied by neuroscience information that was irrelevant to the explanation.
The authors of this research review describe various issues with both studies and comment that, despite those issues, these studies have been cited over and over again as “indicative of the power of images to overwhelm our judgment”. Evidently, bad science is still good press. While they have been cited repeatedly, the current authors were able to find only one replication of the results. Otherwise, the impact of images on persuasion has been insignificant despite multiple large-scale studies.
What appears to be missing in some of the research studies is the narrative that should accompany the images. What jurors want is to know the truth. To feel convinced that there is substance they can trust. A bar chart can be nonsense– pure opinion unless it is effectively explained and the underlying data is both understood and accepted. It is a secondary representation of reality– it is not reality itself. No one on a jury understands an fMRI scan by looking at it. But it creates an impression of being a photograph, in contrast to a bar chart appearing to be a cartoon. Gee– why would anyone favor an fMRI? It isn’t the CSI effect. It’s just sensible people wanting something to believe in.
Last week a client of mine prevailed in a civil RICO and insurance fraud case against businessman who owned chiropractic clinics (Allstate v. Plambeck). Jurors concluded that he did various things that represented fraudulent billing. Including evidence related to x-rays. X-rays have the potential to be superficially understood by a layperson. In this case, what jurors understood that an x-ray that is solid white or solid black is worthless. They understood that an x-ray that shows a spine partially obscured by giant belt buckles, jewelry, or zippers was probably taken by someone with sloppy technique, and thus a lower level of professional skill. The case also involved tables reflecting the ‘quality’ of the medical records, charts depicting non-diagnostic x-rays, and other data. But nothing persuaded the jurors like the physical evidence. In this case they were able to immediately identify the problems. In most cases, the evidence needs to be taught by an effective witness using the images. But the issue isn’t one of a ‘CSI Effect’. It’s about a wish to have evidence.
Why is that happening? When we are so afraid of the CSI effect, why has the scientific debunking of an aspect of this effect gone unincorporated into our collective wisdom? The authors put forth several hypotheses. Among them, the idea that images are appealing and so we assume they are inordinately persuasive. They quote one of our favorite bloggers (Neuroskeptic) and this sort of citing is atypical for academic publications:
“There is another kind of seductive allure, probably the oldest and most dangerous of all–the allure of that which confirms what we already thought we knew.”
And that’s what we tend to think of many of the neurolaw studies we’ve written about when it comes to application in the courtroom. They are often written in ways that make you think they make intuitive sense and there is a magical abracadabra quality to them that makes us not question them much. But when you have murder defenses (or convictions) based on such foundational research that is not yet ready for application in the real world with real consequences–it’s pretty scary. And likely fits right into the allure of “that which confirms what we already thought we knew”.
Thanks to Farah and Hook for sharing something with us that we didn’t already know!
Farah, M., & Hook, C. (2013). The Seductive Allure of “Seductive Allure” Perspectives on Psychological Science, 8 (1), 88-90 DOI: 10.1177/1745691612469035
Remember the movie the Minority Report? In that movie, you can be charged with a crime prior to committing it. Because they can see the future. Well, now–so can we! At least according to some neuroscientists. And all it takes is a brain scan. How tidy! According to the scientists, those felons who show low activity in the anterior cingulate cortex (abbreviated as ACC– a brain region associated with decision-making and action) are likely to be arrested again and sooner than felons who don’t show low activity in that area of the brain.
You may remember Kent Kiehl from an earlier post we wrote on the brains of psychopaths. His work has focused on how the brains of psychopaths malfunction so punishing them for killing is ridiculous and not ethical. Now, he has studied a group of 96 male prisoners just prior to release. Then they followed up on those men for four years to see how they did outside prison. They didn’t do so well.
Men with lower activity in the ACC brain region were more likely to be arrested again after getting out of prison.
Men who were in the lower half of ACC activity were 2.6 times more likely to be arrested for any crime and 4.3 times more likely to be arrested for nonviolent crimes.
Overall, the odds that a felon with low ACC activity would be rearrested were about double that of an offender with high ACC activity.
Why? The ACC, according to the authors, is “central to an error-monitoring circuit wherein it relays error information from the basal ganglia and inferior frontal cortex to the motor areas”. Oh, that’s why! They explain, in language pretty much like you just saw, that the ACC appears to regulate impulse control and those who have low impulse control are more likely to reoffend. Why can’t brain scientists talk like the rest of us? We are grateful that Kent Kiehl himself says this technology is not ready for use just yet! If it was, we would be very anxious indeed about possible misuse of this sort of information.
Recently, in the same focus group where we learned from jurors that during deposition you should not put your fist in your mouth, one of the jurors commented that he thought the Plaintiff was moving remarkably close to asking them to convict based on “thought crime”. He explained that you cannot know other people’s motivations with certainty and it is not a crime to have thoughts but not follow through with actions. (The ‘cannibal cop’ might beg to differ.) Our mock juror was able to stop the other jurors from proceeding along a path that would have found for the Plaintiff based only on what they believed the “Defendant’s were thinking”.
That’s the dilemma with research like this. We are talking about correlation. Those felons with lower ACC activity tended to be arrested more following their release. But we don’t know if the lower ACC activity is what “caused” them to reoffend. It’s a slippery slope when we try to see the future. What’s next? Will we be hearing about violent crime and recidivism as a brain malfunction? Is it heading toward the next version of neuroscientific defense, e.g., “their brain made them do it”?
A late update: See The Neurocritic blog for a detailed explanation of why this study really should not be seen as predictive of reoffending!
Aharoni E, Vincent GM, Harenski CL, Calhoun VD, Sinnott-Armstrong W, Gazzaniga MS, & Kiehl KA (2013). Neuroprediction of future rearrest. Proceedings of the National Academy of Sciences of the United States of America PMID: 23536303
Our latest entry in the “his brain made him do it” defenses is the long-time pediatrician [Domenico Mattiello] from London who is now accused of making sexual advances toward little girls in his care.
Experts will argue in court that a four centimeter tumor at the base of his brain made him do it as it “created pressure inside his skull and altered his behavior”. After all, he was a respected pediatrician for more than 30 years and what would otherwise explain this radical change in behavior? Apparently the defendant has had the tumor removed and is undergoing chemotherapy. Reportedly, he will soon be reassessed to see if/how treatment has effected his impulse control and his pedophilia.
While there is some scientific evidence for pedophilia arising from brain tumors (see cite below), acceptance of the idea by real people is far from universal. Scientists can say the tumor causes issues with impulse control, but people (the ultimate arbiters of fact) may find the behavior so despicable, they want to hold the perpetrator accountable despite medical explanations for out of character behavior. Crimes against children stand a pretty high likelihood of falling into this category.
While real neuroscientists are appalled at what many of them see as a misapplication of the science, there is some evidence jurors don’t buy neurolaw defenses. Prosecutors need to keep in mind that there is evidence that we may be more influenced by brain-based explanations than we are consciously aware. Do I hear a Daubert challenge? A very recent case in Maryland illustrates the intrigue and the uncertainty surrounding neurolaw defenses.
It’s an interesting area to consider. Some experts believe that brain-based disorders like drug addiction, alcoholism, and antisocial personality disorder affect up to half of all convicts in prison. They assert that these disorders are much more common than psychopathy and tumors which can result in the “my brain made me do it” defenses. Why shouldn’t these more common conditions also result in reduced sentences? We’ll continue to monitor the news in this fascinating (and quickly evolving) area of the law.
Where, we wonder, will it all end?
Burns JM, & Swerdlow RH (2003). Right orbitofrontal tumor with pedophilia symptom and constructional apraxia sign. Archives of Neurology, 60 (3), 437-40 PMID: 12633158
Got an upcoming trial and a psychopath for a client? First, please accept our sincere condolences. “Then go to Neurolaw in terms of causation and your client gets a lesser sentence (and returns to society faster)”.
Time Magazine has done a thorough writeup on the study and all the various conditions the researchers built in to assess the impact of specific information about psychopathy on 200 trial judges across the country.
Essentially, what the researchers did was to explore whether judges would punish psychopaths less severely if their behavior was blamed on genetic brain differences. And, they also wondered if these judges would instead punish more severely due to the high rate of recidivism we see in psychopaths. The answer to both questions is yes. They punish more severely and they punish less severely. We accept your thanks for clearing this up for you. Ahem…
Researchers presented one of four versions of the hypothetical case to 181 judges in 19 states. In all versions, judges read scientific evidence that the convicted criminal was a psychopath and what that meant, namely that psychopathy is incurable. Half of the judges also received expert testimony on the genetic and neurobiological causes of the criminal behavior, presented either by the defense as a mitigating factor, or by the prosecution, which argued that it should increase the convict’s sentence. The other judges got no mention of the idea that biological differences in the convict’s brain could have caused his behavior. Researchers controlled for the fact that different states have different sentencing laws.
The judges who were given a biological explanation for the convict’s psychopathy issued shorter sentences, but notably, all judges committed the criminal to significantly more prison time than their average nine years for aggravated battery. And while all judges viewed psychopathy as an aggravating factor in sentencing, the judges who heard evidence about the genetic and neurobiological causes of the condition from the defense reported viewing it as less aggravating. Nearly 9 in 10 judges listed at least one aggravating factor in their reasoning for their sentence, but when they heard the expert testimony from the defense, the percentage of judges who also listed mitigating factors rose from 30% to 66%. And judges who received this evidence were 2.5 times more likely than other judges to report actually having weighed aggravating versus mitigating factors in deciding their sentence.
“The judges did not let the defendant off,” said lead author Lisa Aspinwall of the University of Utah in a statement. “They just reduced the sentence and showed major changes in the quality of their reasoning.” The researchers noted that they were surprised the judges reduced their sentencing at all, considering that they were dealing with psychopaths who are in general a highly unsympathetic bunch.”
The results are intriguing. Even though we can be educated about realities of how the psychopath is hardwired differently and feels no empathy for their victim–we still feel a twinge of sympathy when we hear it isn’t something they cannot help. “His brain made him do it.” It is as though we are impressed by neurolaw explanations but don’t really realize how much it impresses us–even when “we” are a judge. We’ve written about real cases where neurolaw explanations for behavior worked to result in acquittals and those where the jurors simply didn’t buy it. It’s a fascinating area of emerging law.
The good news is that the judges in this study all chose to levy a sentence harsher than that demanded by aggravated battery. The disconcerting news is that when you hear mitigating evidence presented by the defense attorney, you are likely to cut the defendant some slack– even when you are a judge. It will be intriguing to watch how neurolaw explanations continue to affect more naive dispensers of justice: the jurors.
Aspinwall LG, Brown TR, & Tabery J (2012). The double-edged sword: does biomechanism increase or decrease judges’ sentencing of psychopaths? Science (New York, N.Y.), 337 (6096), 846-9 PMID: 22904010
Two months ago we wrote about the “epilepsy defense”. Now we read about a teenager killing his mother in the midst of a seizure. It’s a poignant and shocking example of why the ‘epilepsy defense’ appears to be valid under certain circumstances.
Karyn Kay was a 63-year-old single mom who worked as a teacher in midtown Manhattan. Her 19-year-old son (Henry Wachtel) has epilepsy. Their relationship was positive and there was no history of either abuse or violence between them. After Henry cut his arm on a cup during a seizure, Karyn had always held him in her arms when he had seizures in her presence.
As Henry’s seizure commenced, Karyn placed a call to 9-1-1. She reported her son was having a seizure and requested assistance. Fifty-eight seconds into the call, the 9-1-1 operator heard what sounded like an assault with grunting and screams. When the police arrived at the apartment, Henry let them in saying “It was a mistake” and the police found Karyn Kay “sprawled in a pool of blood on the kitchen floor.” She was dead.
The police, believing no one could be “accidentally beaten to death” arrested Henry and charged him with murder. Medical experts reviewed the 9-1-1 tape and and report they think Henry was having a ‘grand mal’ seizure and concluded Henry would not have had “conscious intent” to kill or harm his mother.
Contrary to the typically hostile comment sections for internet news articles, comments relating to this story were consistently sensitive and sympathetic to Henry Wachtel’s plight. Instead of cruel skepticism, they raised questions that conscientious jurors might also have in deliberations. One commenter wrote that Henry’s childhood was much more complex than described. An article in the NY Times raises questions about whether there is more to the story. The original article does indicate Henry was on Keppra (a medication that has been linked to increases in rage outbursts) and Prednisone (which also has been associated with rage reactions). He also acted in a film called “Our Time” about disillusioned teens with disturbed parents, which now cannot be separated from what we know of what ultimately happened.
It’s a complex picture but not with the pretty foreword painted by the Daily Beast article. Despite the 9-1-1 call, which shows the violence likely took place during or shortly after the seizure itself, when intent cannot be formed–the reality is that Karyn Kay was killed by her own son. It is a horribly sad story. And if Henry Wachtel is ultimately freed from legal responsibility–is there a risk to society? It’s a question we always ponder in the “my brain made me do it” defenses. And of course, for the huge numbers of people with epilepsy who will never display the slightest hint of epilepsy-related rage or aggression, the cloud of public ignorance surrounding their condition is even more burdensome.
We’ve written on this blog about sex crimes committed while the perpetrator was allegedly asleep or otherwise consciously not aware. Some of those defendants were acquitted and a few were found guilty. Is there a difference in culpability if the ‘offense’ is a sex crime rather than physical battery or murder?
If we think of the comments section as a (non-randomly selected) focus group–it is clear there is sympathy for Henry Wachtel. What about sympathy for Karyn Kay? Will she be seen as having a disturbed relationship with her son, as hinted at by some commenters? Is this just “one of those things”? It certainly is an area where there are no easy answers. We are grateful to the practicing physicians who wrote the original article on how to assess the validity of the “epilepsy defense” and grateful to Karyn Kay for placing the 9-1-1 call [which allows us to hear what was transpiring], as one of the final loving and responsible acts of her life.
Wortzel HS, Strom LA, Anderson AC, Maa EH, & Spitz M (2012). Disrobing associated with epileptic seizures and forensic implications. Journal of Forensic Sciences, 57 (2), 550-2 PMID: 22150773