Real Cases in Law and Neuroscience (and What We’ve Learned from Them)

People from a range of professional backgrounds congregated last week at the International Neuroethics Society’s annual meeting to discuss the intersection of neuroscience advances and ethics.  Topics included neuroscience and national security, novel treatments in neuropsychiatry, and neuroscience and the law.

Many of the neuroethics conversations involved the ethical implications of neuroscience research advances, such as enhancement drugs, but at Friday’s final panel, attendees heard about landmark court cases that set precedents for the use of neuroimaging as evidence.

"When it gets to the legal system, somebody has to make a decision,” said Hank Greely, Stanford Law professor and moderator of the panel, explaining the importance of these cases.

On the panel were criminal defense attorney Steve Greenberg, trial lawyer Houston Gordon, and neurologist Russell Swerdlow. Greenberg used fMRI to argue that his client was a born psychopath, convincing the jury to choose the lesser sentence of life in prison instead of the death penalty. Gordon unsuccessfully introduced fMRI lie-detection evidence as part of his defense for a federal criminal trial. Swerdlow cracked the case of a teacher who uncharacteristically became sex-obsessed, discovering through MRI a large brain tumor in the defendant, which was causing his abnormal behavior.

From a very basic standpoint, imaging seems like a great way to cut through the possibility of devious testimony or to identify the potential for violent behavior in a defendant. But it’s clearly not that simple. In addition to the overarching question of the evening—Is the science even ready?—Swerdlow asked: How hardwired is human decision making? How free is free will? Are legal standards of decision making adequate? How feasible is rehabilitation? Certainly these are questions that courtrooms will become more familiar with as cases using imaging evidence become more prevalent.

The lawyers on the panel seemed in agreement that cases need to be looked at on an individual basis, but that conditions such as mental illness should play a role in sentencing. While a person may be guilty of a crime, intent is obviously an important factor. Greenberg emphasized that he is against using imaging as a predictor of future behavior. It is this gray area that alarms many people, including neuroscientist Helen Mayberg, who expressed concern that imaging could be used in the future to predict violent tendencies in people, creating a rationalization to separate them from society before they have even committed a crime.

Lie-detection drew the most concern and criticism from the audience, although Gordon stood by his belief that it was a scientifically legitimate means of testing. Greenberg wouldn’t even address the topic, explaining that “lie-detection just scares me.” Most of the concern voiced at the session stemmed from the idea that is has not been sufficiently tested, with one audience member noting that most of the testing has been on students in very controlled studies.

Proven or not, many lawyers will continue to employ imaging tests if they add weight to their cases. It is because of this increasing intersection between neuroscience and the law that the education of judges and lawyers on neuroscience is gaining traction. Since 2007, the Dana Foundation has funded a grant to the AAAS to hold seminars for state and federal judges on emerging issues in neuroscience, with the last session taking place two weeks ago in Philadelphia. Hopefully through the instigation of the International Neuroethics Society and other like-minded organizations, legal and medical professionals will increasingly inform each other’s work in mutually beneficial ways.

–Ann L. Whitman

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