Neuroethics & Law Blog

Lie Detection and Federal Criminal Justice

"The Significance (If Any) for the Federal Criminal Justice System of Advances in Lie Detector Technology"

Temple Law Review, Forthcoming

JEFFREY BELLIN (Senior Appellate Attorney, California Courts of Appeal)
Against a backdrop of accelerating developments in the science of lie detection certain to reopen the debate on the reliability and therefore admissibility of lie detector evidence in the federal courts, this Article examines whether the prohibition on hearsay evidence (or other evidentiary objections) will preclude admissibility of even scientifically reliable lie detector evidence. The Article concludes that the hearsay prohibition, which has been largely ignored by courts and commentators, is the primary obstacle to the future admission of scientifically valid lie detector evidence. The Article also suggests a potential solution to the hearsay problem that may allow admission of lie detector evidence in narrowly defined circumstances.

(Connors) Call for Abstracts: 'Our Brains, Our Selves' Workshop in Aarhus

Many thanks to Adam for letting me hijack the blog once more for a European Neuroscience and Society Network (ENSN) notice.  I am pleased to announce a two-day workshop to be held from November 30 - December 1 in Aarhus, Denmark. Held in conjunction with the 'Global Minds' conference at the University of Aarhus, the event builds on the recent success of our 'Our Brains, Our Selves' workshop at Harvard University. The Aarhus 'Our Brains, Our Selves' workshop mirrors the format and themes of the Harvard event for early-career European researchers.  We particularly welcome proposals for individual papers employing historical and ethnographic approaches to the new brain sciences; however, we are also happy to consider other papers which engage with the ethical, social and legal implications of neuroscience research.

You can find more information about the content, format and themes of the event here, but suffice to say that the workshop is very discussion focused -- and is thus an excellent platform for junior researchers to present work in progress to an interesting and knowledgable group of social scientists.  Note that this is not a neuroscience and law focused event but will present a fairly broad cross-section of approaches to neuroscience issues, so bring your social science hats!

The ENSN will fund travel and accomodation expenses for all participants.  Although we are happy to receive any and all applications, I particularly encourage European readers of the Neuroethics and Law blog to apply, as we are sadly somewhat limited in the number of non-Europeans we can fund for the event.  As always, you can always get in touch with me if you have questions about the event or about the ENSN in general.

250-300 word abstracts are due September 15th. Looking forward to hearing from you.

"Moral Grammar and Intuitive Jurisprudence"

John Mikhail (Law, Georgetown) has posted Moral Grammar and Intuitive Jurisprudence: A Formal Model of Unconscious Moral and Legal Knowledge to SSRN.  The paper will appear in THE PSYCHOLOGY OF LEARNING AND MOTIVATION: MORAL COGNITION AND DECISION MAKING, D. Medin, L. Skitka, C. W. Bauman, D. Bartels, eds., Vol. 50, Academic Press, 2009.  Here is the abstract:

Could a computer be programmed to make moral judgments about cases of intentional harm and unreasonable risk that match those judgments people already make intuitively? If the human moral sense is an unconscious computational mechanism of some sort, as many cognitive scientists have suggested, then the answer should be yes. So too if the search for reflective equilibrium is a sound enterprise, since achieving this state of affairs requires demarcating a set of considered judgments, stating them as explanandum sentences, and formulating a set of algorithms from which they can be derived. The same is true for theories that emphasize the role of emotions or heuristics in moral cognition, since they ultimately depend on intuitive appraisals of the stimulus that accomplish essentially the same tasks. Drawing on deontic logic, action theory, moral philosophy, and the common law of tort, particularly Terry's five-variable calculus of risk, I outline a formal model of moral grammar and intuitive jurisprudence along the foregoing lines, which defines the abstract properties of the relevant mapping and demonstrates their descriptive adequacy with respect to a range of common moral intuitions, which experimental studies have suggested may be universal or nearly so. Framing effects, protected values, and implications for the neuroscience of moral intuition are also discussed.

Choices and Attention Depletion

On Amir (Marketing, Rady School-UCSD) has written an article for Scientific American.  The article summarizes research on how we deplete cognitive resources when we make choices and how this affects our subsequent decisions.  Here is a sample:

Imagine, for a moment, that you are facing a very difficult decision about which of two job offers to accept. One position offers good pay and job security, but is pretty mundane, whereas the other job is really interesting and offers reasonable pay, but has questionable job security. Clearly you can go about resolving this dilemma in many ways. Few people, however, would say that your decision should be affected or influenced by whether or not you resisted the urge to eat cookies prior to contemplating the job offers. A decade of psychology research suggests otherwise. Unrelated activities that tax the executive function have important lingering effects, and may disrupt your ability to make such an important decision. In other words, you might choose the wrong job because you didn't eat a cookie.

(Hat tip: Orly Lobel, writing at Prawfsblawg).

Enhancing Lifespan or Healthspan

Yesterday's NYT science section had an article about Sirtris Pharmaceuticals (recently purchased by GlaxoSmithKline).  Sirtris has been working to develop resveratrol-related compounds to treat diseases like diabetes, using methods that generated interest because they seem to have extend the lives of mice by about %30. 

Yup, talk about burying the lede!  As you read the article, you'll see that the drug developers have to practically disown the goal of extending life years in healthy people, while embracing the notion that the drugs they are developing can treat traditional diseases.  It's probably not their fault; in order to get FDA-approval, they need to identify some traditional disease that is treated by their product.  Apparently, the disease of aging doesn't qualify.  I say, increase lifespan and healthspan.  Here's an excerpt:

The impact of Sirtris’s drugs, if successful, could extend beyond the drug industry. Dr. Guarente believes that many people might start taking them in middle age, though after having started a family because they may suppress fertility.

Mice on the drugs generally remain healthy right until the end of their lives and then just drop dead.“If they work in people that way, one would look to an extension of health span, with an extension of life as a possible side effect,” Dr. Guarente said. “It would necessitate changing ideas about when people retire and when they stop paying into the system.”

GlaxoSmithKline could put SRT501, its resveratrol formulation, on the market right away, selling it as a natural compound and nutritional pharmaceutical that does not require approval by the F.D.A. “We haven’t made any decisions, but that clearly is an option,” Dr. Vallance said.

I'll be very interested to see how GlaxoSmithKline handles this last issue.  If SRT501 works as some say it does, might the anti-enhancement forces still rule the day?

Sleep and Combat

William Saletan at Slate discusses a recent report into the military's efforts to reduce soldiers' sleep needs.  He notes that "ampakines" tested on monkeys have shown some promise as a method of restoring wakefulness.  His piece is worth a link, if for no other reason than it has helpful and interesting links.

Forensic Psychiatry and the Law

On SSRN:

"Facing the Interface: Forensic Psychiatry and the Law"

Erasmus Law Review, Vol. 1, No. 3, 2008

HJALMAR J.C. VAN MARLE, Erasmus School of Law
As we know from history, in court cases experts used to be called in when the defendant showed symptoms of a psychiatric illness. This was necessary, as the law itself did not provide rules about how to define abnormality. Mental illness needed an explanation for it to fit into the framework of the criminal justice system. With the emancipation of the empirical psychology and progress in the examination of patients' brains with modern imaging techniques, a separation has developed between the naturalistic man-oriented view of offending, and empiricism, in which facts are true if they are measured with reproducible tests. This is the case with judicial rulings about responsibility for a crime, the presence of illness at the time of the offense and the risk of recidivism concerning the length of treatment of mentally ill offenders and their targets. These aspects in the debate between the court and expert witnesses are discussed separately. The conclusion is that the field of law has been extended into the field of empirical sciences for more objectivity, and that the influence of these sciences on juridical reality can play an auxiliary role only. It is therefore necessary that judges and lawyers be trained in the use of empirical data. Still, forensic reality requires an interpretation, in which the forensic psychiatrist has different loyalties to the relevant parties in the court proceedings. But he is above all a medical man with ethical restrictions.

Intergenerational Transmission of Criminal Behavior

Here is the abstract for a new article in the British Journal of Criminology:

"Like Father, Like Son: The Relationships between Conviction Trajectories of Fathers and Their Sons and Daughters"

The British Journal of Criminology, Vol. 48, Issue 4, pp. 538-556, 2008

MARIEKE VAN DE RAKT
PAUL NIEUWBEERTA
NAN DIRK DE GRAAF

This study elaborates on the relationship between convictions of fathers and the development of convictions of their offspring over the lifespan. Unique official data from the Netherlands Criminal Career and Life Course Study (CCLS) are used to investigate the intergenerational transmission of criminal behaviour (8,085 sons and daughters and an observation period of over 40 years). Trajectory modelling and growth curve analysis are used to establish (1) differences between the criminal careers of children from different groups of fathers and (2) differences within the groups of children in the development of their individual criminal careers. The findings demonstrate that children of convicted fathers are much more likely to be convicted themselves in comparison to those whose fathers have never been convicted. Also, children of highly persistent fathers tend to commit more delinquent acts in every phase of their lives than children of law-abiding fathers. An additional analysis shows the existence of four distinct trajectory groups (non-delinquents, moderate desisters, early desisters and chronics) amongst the children.

Schramme on Body Modification

Here is an abstract from Bioethics that might be relevant to some neuroethics issues:

"Should We Prevent Non-Therapeutic Mutilation and Extreme Body Modification?"

Bioethics, Vol. 22, Issue 1, pp. 8-15, January 2008

THOMAS SCHRAMME

In this paper, I discuss several arguments against non-therapeutic mutilation. Interventions into bodily integrity, which do not serve a therapeutic purpose and are not regarded as aesthetically acceptable by the majority, e.g. tongue splitting, branding and flesh stapling, are now practised, but, however, are still seen as a kind of aberration that ought not to be allowed. I reject several arguments for a possible ban on these body modifications. I find the common pathologisation of body modifications, Kant's argument of duties to oneself and the objection from irrationality all wanting. In conclusion, I see no convincing support for prohibition of voluntary mutilations.

fMRI Article in Science Criticized by Ramsoy

In a blog post entitled, "Big fMRI Error in Science!!!", Thomas Ramsoy criticizes a 2007 article in Science by Depue et al.  Here's the link to the blog post.

"Experts, Mental States and Acts" by Slobogin

"Experts, Mental States and Acts"

CHRISTOPHER SLOBOGIN, University of Florida - Levin College of Law
This article, written for a symposium on "Guilt v. Guiltiness: Are the Right Rules for Trying Factual Innocence Inevitably the Wrong Rules for Trying Culpability?," argues that the definition of expertise in the criminal justice system, derived in the federal courts and in most states from Daubert v. Merrell Dow Pharmaceuticals Co., should vary depending on whether the issue involved is past mental state or past conduct. While expert psychological testimony about past acts ought to be based on scientifically verifiable assertions, expert psychological testimony about subjective mental states relevant to criminal responsibility need not meet the same threshold. This stance derives from the interplay between what I call the "right to voice" and a necessity rationale. The right to voice derives from the Constitution, which can be read to give criminal defendants a break whenever they want to present expert testimony. But respect for Daubert and scientific epistemology counsels that this bow to the defense should occur only when a scientific approach is not possible. Such an approach *is* futile with respect to opinion testimony about past mental state, so a relaxed evidentiary standard should govern there. However, when, as with past act testimony, the necessity argument is weak, Daubert should apply with full force.

"Law, Psychology, & Morality"

I saw this on Larry Solum's blog: Kenworthey Bilz and Janice Nadler (both Law, Northwestern) have posted Law, Psychology & Morality (MORAL COGNITION AND DECISION MAKING, D. Medin, L. Skitka, C. W. Bauman, & D. Bartels, eds., Academic Press, 2009) on SSRN. Here is the abstract:

In a democratic society, law is an important means to express, manipulate, and enforce moral codes. Demonstrating empirically that law can achieve moral goals is difficult. Nevertheless, public interest groups spend considerable energy and resources to change the law with the goal of changing not only morally-laden behaviors, but also morally-laden cognitions and emotions. Additionally, even when there is little reason to believe that a change in law will lead to changes in behavior or attitudes, groups see the law as a form of moral capital that they wish to own, to make a statement about society. Examples include gay sodomy laws, abortion laws, and Prohibition. In this Chapter, we explore the possible mechanisms by which law can influence attitudes and behavior. To this end, we consider informational and group influence of law on attitudes, as well as the effects of salience, coordination, and social meaning on behavior, and the behavioral backlash that can result from a mismatch between law and community attitudes. Finally, we describe two lines of psychological research - symbolic politics and group identity - that can help explain how people use the law, or the legal system, to effect expressive goals.

Three WSJ Articles

Here are three interesting neuroethics-related articles in today's Wall Street Journal:

(1) "The Synapse and the Soul"-- Reviewing Michael Gazzaniga's new book Human: The Science Behind What Makes Us Unique.

(2) "Can't Keep the Weight Off?"-- Describing new research into why weight loss is so difficult.  A sample:

The latest study shows that these metabolic changes are mirrored in altered brain activity when people lose weight. The Columbia researchers put six obese subjects on liquid diets and reduced their weight by 10%, then gave them replacement leptin or a placebo. At each stage, researchers observed their brain activity using functional MRIs when they were shown food and non-food items.

The scans showed that in the weight-reduced state, the subjects had more blood flow in areas of the brain that govern emotional and sensory responses to food and less in areas involving control of food intake. When the subjects were given replacement leptin, brain activity returned to what it had been before they lost weight.

And check out this controversial comment about free will:

Dr. Leibel also says that people should understand that regaining lost weight "is not free will. It's biologically determined and the species that didn't have this are the ones you see in the Museum of Natural History." It's only been in recent decades that this mechanism is contributing more to obesity than survival. "Now, anyone can summon an unlimited amount of food just with a cellphone," he says.

(3) "Linden Avatars Boldly Go Where None Has Before" (the title in my print copy): Discussing efforts to make Second Life avatars capable of "teleporting" into new environments.  Perhaps this is one tiny step toward the singularity.

Spain and Ape Rights

The Spanish Parliament has voted to extend certain rights to apes, according to this news story from Reuters.  The Great Ape Project seems to have been highly influential in prompting the action:

The new resolutions have cross-party or majority support and are expected to become law and the government is now committed to update the statute book within a year to outlaw harmful experiments on apes in Spain.

"We have no knowledge of great apes being used in experiments in Spain, but there is currently no law preventing that from happening," Pozas said.

Keeping apes for circuses, television commercials or filming will also be forbidden and breaking the new laws will become an offence under Spain's penal code.

Keeping an estimated 315 apes in Spanish zoos will not be illegal, but supporters of the bill say conditions will need to improve drastically in 70 percent of establishments to comply with the new law.

I discuss certain legal issues related to ape rights in this student note.

Medical Investigation into Psilocybin

The Associated Press is reporting on the results of a psilocybin study.  Apparently, one year after taking the drug, many experimental subjects report that the drug has had a profound, enduring, and seemingly beneficial effect on their lives:

The drug, psilocybin, is found in so-called "magic mushrooms." It's illegal, but it has been used in religious ceremonies for centuries.

The study involved 36 men and women during an eight-hour lab visit. It's one of the few such studies of a hallucinogen in the past 40 years, since research was largely shut down after widespread recreational abuse of such drugs in the 1960s.

The project made headlines in 2006 when researchers published their report on how the volunteers felt just two months after taking the drug. The new study followed them up a year after that.

Experts emphasize that people should not try psilocybin on their own because it could be harmful. Even in the controlled setting of the laboratory, nearly a third of participants felt significant fear under the effects of the drug. Without proper supervision, someone could be harmed, researchers said.

Osborn, in a telephone interview, recalled a powerful feeling of being out of control during her lab experience. "It was ... like taking off, I'm being lifted up," she said. Then came "brilliant colors and beautiful patterns, just stunningly gorgeous, more intense than normal reality."

And then, the sensation that her heart was tearing open.

"It would come in waves," she recalled. "I found myself doing Lamaze-type breathing as the pain came on."

Yet "it was a joyful, ecstatic thing at the same time, like the joy of being alive," she said. She compared it to birthing pains. "There was this sense of relief and joy and ecstasy when my heart was opened."

With further research, psilocybin (pronounced SILL-oh-SY-bin) may prove useful in helping to treat alcoholism and drug dependence, and in aiding seriously ill patients as they deal with psychological distress, said study lead author Roland Griffiths of Johns Hopkins.