One Way Neuroscience Will Eventually Affect the Law

In two prior posts, I argued that the jury is still out as to whether neuroscience will radically alter our notions of criminal responsibility. I do, however, believe that technological advances in neuroscience will eventually have major effects on the law.

One promising area concerns the use of brain imaging to assess whether or not a person is genuinely in pain. A 2011 study from Sean Mackey's lab at Stanford used brain imaging to predict with about 80% accuracy whether subjects were in a state of pain or not. A 2013 study from Tor Wager and colleagues in the New England Journal of Medicine suggests that the technology has only become more accurate and versatile.  More study is certainly necessary: I know of no studies yet on people who are deliberately trying to fool examiners; most studies focus on acute pain (from a hot piece of metal) and not chronic pain; and measuring amounts of pain is much harder than assessing whether a claim of pain is entirely malingered.

But there is good reason to believe that pain detection technology will continue to improve and eventually become at least a useful adjunct and perhaps someday a quite essential tool in court and administrative hearings. The technology will both help to filter out malingered claims (and perhaps highly exaggerated claims) and make it easier for people with genuine pain to provide more objective evidence. And unlike efforts to use brain imaging for lie detection, brain imaging for pain detection has more obvious medical uses, meaning that the technology might gain respect in the medical community in a manner that makes it more palatable for courtroom use.

If you're interested in learning more, I've written about the forensic use of brain imaging to assess physical pain here and to assess emotional pain here and here. Susannah Locke surveys some of the issues in this recent piece in Vox, and Amanda Pustilnik is exploring issues related to pain, law, and neuroscience here.

(Originally posted at Prawfsblawg)

Comments

[Jen]

Already, there is significant evidence that hippocampal volume is reduced in people with PTSD. So if you have the stressor event and need the physical evidence, you can show change. I think also one day people will see fragments of DNA from mitachondria in plasma which is proportional to neuronal damage through changes due to oxidative stress and increased permeability of blood brain barrier. There are biochemical, imaging and then also neurocognitive testing that can show change over time. Just a diary of pain is admissable.