Neuroethics & Law Blog

Nikolas Rose talk "Neurotechnologies of Justice: Neuroscience Beyond the Courtroom"

The Australian Neurolaw Database Project and the Agency and Moral Cognition Network present a seminar: "Neurotechnologies of justice: Neuroscience beyond the courtroom".
By Nikolas Rose

Abstract
In this talk I will explore the actual and potential impacts of developments in neuroscience and neurotechnology in the criminal justice system beyond the courtroom. There has been much discussion about the role of genetics and brain scanning in criminal trials and their impact on the legal fiction of free will, although evidence that genetic or brain based defences succeed in exculpation is equivocal. In this talk, I will focus elsewhere, and explore the impact of claims to be able to ‘read the brain’ in neural lie detection and beyond, the potential uses of novel neurotechnologies for risk assessment, preemptive intervention, and their role in ‘law enforcement’ and ‘crowd control’, and some questions arising from machine learning and artificial intelligence. The challenges posed by the ‘dual use’ potential of some advances in neuroscience, where technologies intended for civilian purposes also have military and security uses, are particularly significant at a time when the boundaries between the criminal justice and the wider security system are increasingly blurred.

 

Session Details
When:
Tuesday, March 7, 4 - 5:30 p.m.
Where:
Macquarie University
Campus
C8A 310 (Senate Room -
near the coffee cart)
Department of Global Health and
Social Medicine
King’s College London, London
WC2R 2LS, UK

Everyone is welcome but please register for catering purposes by emailing:
[email protected]

"Emotional Judges and Unlucky Juveniles"

Recently published on SSRN:

 

"Emotional Judges and Unlucky Juveniles"

 

NACI H. MOCAN, Louisiana State University, Baton Rouge - Department of Economics, National Bureau of Economic Research (NBER)
OZKAN EREN, Louisiana State University, Baton Rouge - Department of Economics

Employing the universe of juvenile court decisions in a U.S. state between 1996 and 2012, we analyze the effects of emotional shocks associated with unexpected outcomes of football games played by a prominent college team in the state. We investigate the behavior of judges, the conduct of whom should, by law, be free of personal biases and emotions. We find that unexpected losses increase disposition (sentence) lengths assigned by judges during the week following the game. Unexpected wins, or losses that were expected to be close contests ex-ante, have no impact. The effects of these emotional shocks are asymmetrically borne by black defendants. We present evidence that the results are not influenced by defendant or attorney behavior or by defendants’ economic background. Importantly, the results are driven by judges who have received their bachelor’s degrees from the university with which the football team is affiliated. Different falsification tests and a number of auxiliary analyses demonstrate the robustness of the findings. These results provide evidence for the impact of emotions in one domain on a behavior in a completely unrelated domain among a uniformly highly-educated group of individuals (judges), with decisions involving high stakes (sentence lengths). They also point to the existence of a subtle and previously-unnoticed capricious application of sentencing.

 

PEBS Neuroethics Roundup (JHU)

How Our Brains Perceive the Truth, The Guardian   Animals Know When They Are Being Treated Unfairly (and They Don’t Like It), The Conversation As Presidents Live Longer, Doctors Debate Whether To Test For Dementia, NPR The Brain Defense Murder in Manhattan and the Dawn of Neuroscience in America'a Courtrooms, Penguin Random House When Mismatched Voices and Lips Make Your Brain Play Tricks, The New York Times The Fantasy of Connecting Two Spinal Cords, Discover Magazine Robot Companion’s Can-Do Attitude Rubs Off on Children, New Scientist When Neuroethicists Become Labmates, The Neuroethics Blog Hunched Over a Microscope, He Sketched the Secrets of How the Brain Works, The New York Times Earbuds That Give You More Selective Hearing, MIT Technology Review Cocaine Addiction Leads to Buildups of Iron in the Brain, Gizmodo Neural Network Learns to Synthetically Age Faces, and Make Them Look Younger, Too, MIT Technology Review Call for Brain Donors, BBC News Mind-Reading Typing Tool for Paralysed People is Fastest Yet, New Scientist Portable Brain-Scanning Helmet Could Be Future for Rapid Brain Injury Assessments, The Guardian What Causes a ‘Butterflies in the Stomach’ Sensation?, Discover Magazine Language Lessons Start in the Womb, The New York Times Can We Trust the Rorschach Test?, The Guardian How Your MRI Scan Benefits Science, The Guardian   Bayesian Inference and Testing of Group Differences in Brain Networks, Bayesian Analysis Blunted ventral striatal responses to anticipated rewards foreshadow problematic drug use in novelty-seeking adolescents, Nature Communications Sensitivity and specificity of abstraction using gist reasoning measure in adults with traumatic brain injury, Applied Biobehavioral Research Hippocampal awake replay in fear memory retrieval, Nature Neuroscience  High performance communication by people with paralysis using an intracortical brain-computer interface, eLife  Perceptual decisions are biased by the cost to act, eLife

Subscribe to our mailing list The Program in Ethics and Brain Sciences (PEBS) is a collaborative effort of the Johns Hopkins Berman Institute of Bioethics and the Johns Hopkins Brain Sciences Institute . The goal of PEBS is to ensure that research in brain science proceeds with an informed understanding of ethical issues, and that philosophical and empirical analyses of the advances in brain research proceed with an informed understanding of the science.

 

Thanks Nada and Andrew

Just wanted to thank our recent guest bloggers, Andrew Vierra and Nada Gligorov, for enriching this space!

"Andrea Yates: A Continuing Story About Insanity"

Recently published on SSRN:

 

"Andrea Yates: A Continuing Story About Insanity" 

 

DEBORAH W. DENNO, Fordham University School of Law

In 2001, Andrea Yates did the unthinkable: she drowned her five children one by one in a bathtub within the course of minutes. She immediately confessed and explained that she killed them because she under the influence of Satan did not want them to be “tortured by Satan” as she was. Despite the defense uncovering evidence of Yates’ history of postpartum depression and psychosis, the jury did not accept her insanity defense and convicted her of capital murder with a sentence of life in prison. Influential in this decision was the testimony of prosecution expert Dr. Park Dietz, who pushed the view that Yates had rationally planned the murders. Dietz’s testimony was troubling, not only because there was little, if any, empirical basis for his conclusions, but because the defense discovered that he had introduced false testimony during the trial. During cross-examination, Dietz explained that he was a consultant for Law & Order and that one episode aired prior to Yates’ crime involving a woman with postpartum depression who drowned her children in a bathtub and was found insane. Yet the defense discovered no such show existed. Even though a grand jury found Dietz innocent of perjury, the defense appealed Yates’ sentence. Given the degree of Dietz’s impact on the jury, the Texas Court of Appeals reversed the judgment and remanded the case. In this second trial in 2006, Yates was no longer eligible for the death penalty and much more information had been uncovered regarding Yates’ mental condition. The jury unanimously found Yates not guilty by reason of insanity. While the Yates case helped to inform the world of the pervasiveness of postpartum depression and psychosis, no substantive changes have been made in Texas insanity law. This chapter explains how the state’s definition of insanity influenced the first trial and both constrained and confused how the jury could view Yates’ actions.

"Concocting Criminal Intent"

Recently published on SSRN (and Georgetown Law Journal, Vol.105, pp. 323-78 (2017)):

 

"Concocting Criminal Intent" 

 

DEBORAH W. DENNO, Fordham University School of Law

My empirical study, which examines neuroscience evidence in 800 criminal cases over the course of two decades, is the first to determine how, when, and why victim brain scan evidence is introduced and used in court. My study reveals that although courts commonly rely on brain scans to show the extent of a victim’s injury, the actual application of this neuroscience evidence extends far beyond the purpose for which it is admitted. Indeed, victim brain scans are introduced primarily by prosecutors, and nearly half of these cases are based on medical expert testimony that the victims suffer from shaken baby syndrome, a medical diagnosis with controversial scientific underpinnings and distorted legal ramifications. The diagnosis often successfully serves as the sole foundation for a prosecutor’s case, with no proof of the defendant’s act or intent beyond the victim’s brain scan and the accompanying medical expert testimony. Shaken baby syndrome cases thus portray a troubling phenomenon in which the key element of mens rea is either unclear or overlooked altogether and prosecutors are permitted to concoct intent out of brain scans that were admitted for the sole purpose of presenting the victim’s injury. My study further reveals that shaken baby syndrome cases are merely the more transparent examples of the criminal justice system’s failure to deal adequately with the surging influx of neuroscience evidence into the courtroom. Shaken baby cases thus represent a microcosm of prosecutorial misuse of victim neuroscience evidence more generally, particularly when the evidence is employed to determine a defendant’s mental state.

Neuroscience and Law Center CLE Program

Neuroscience and Law Center  CLE Program       The Neuroscience and Law Center presents     Reconstructing Criminal Justice: Brain Dysfunction & The Courtroom         Monday, March 6, 2017 8:30 a.m.–3 p.m.   Fordham Law School Costantino Room 150 West 62nd Street, New York City   Register Here     KEYNOTE SPEAKER           The Honorable Steve Leifman, JD Associate Administrative Judge, Eleventh Judicial Circuit, Miami-Dade County Criminal Division, Florida; Chair, Supreme Court of Florida Task Force on Substance Abuse and Mental Health Issues in the Courts           PROGRAM CHAIR           Deborah W. Denno, PhD, JD Arthur A. McGivney Professor of Law and Founding Director, Neuroscience and Law Center, Fordham Law School           MODERATOR           Clare Huntington, JD Associate Dean for Research and Professor of Law, Fordham Law School           PANELISTS           Jeffrey Borenstein, MD President and CEO, Brain & Behavior Research Foundation           Jo Freedman, LCPC-C Mental Health Coordinator, Portland Police Department, Maine           Ruben C. Gur, PhD Professor of Psychology in Psychiatry and Director of Neuropsychology and the Brain Behavior Laboratory, Department of Psychiatry, Perelman School of Medicine, University of Pennsylvania           Adam Kolber, JD  Professor of Law, Brooklyn Law School           Susan K. Marcus, JD  Trial Attorney, Law Offices of Susan K. Marcus           Holly Moore, PhD Director of Laboratory Resource Management, New York State Psychiatric Institute, Associate Professor of Clinical Neurobiology, Columbia University Medical Center            Barry Rosenfeld, PhD Professor and Chair, Department of Psychology, and Adjunct Professor of Law, Fordham University           Janet F. Rosenzweig, PhD, MPA Executive Director of the American Professional Society on the Abuse of Children               CLE credits have been approved in accordance with the requirements of the New York State CLE Board for a maximum of four (4) transitional and nontransitional credit hours: three (3) in professional practice and one (1) in ethics.

 

"PTSD, Biomarkers, and Rape Prosecutions"

Recently published on SSRN (and forthcoming in Arizona State Law Journal):

 

"PTSD, Biomarkers, and Rape Prosecutions" 

 

BETSY GREY, Arizona State University (ASU) - Sandra Day O'Connor College of Law

Courts traditionally have been reluctant to admit PTSD evidence in rape cases. Prosecutors often attempt to introduce such evidence to establish that the victim did not consent to the sexual contact, but courts have been concerned that the jury will improperly use the evidence for other purposes, such as proof that the rape occurred. This essay questions whether judicial hostility to PTSD evidence should be reconsidered, given how science is developing biological markers, or objective physiological measures, of PTSD. It concludes that, even with these scientific developments, courts should remain skeptical about admitting PTSD evidence. The main concern persists that PTSD evidence may be overly persuasive in suggesting that rape was the stressor that caused the psychiatric disorder. Nor does use of biomarkers eliminate the vouching problem raised by the testimony of psychiatric experts, who must still rely on the accuser’s account of the experience — the stressor event — that supposedly caused the PTSD. Moreover, an open door to PTSD biomarker evidence may introduce new evidentiary problems, as the defense may try to use the absence of biomarkers to support the claim of consent.

"The Overlooked History of Neurolaw"

Recently published on SSRN (and 84 Fordham Law Review 667 (2016)):

 

"The Overlooked History of Neurolaw" 

 

FRANCIS X. SHEN, University of Minnesota Law School

This Article, part of a symposium on neuroscience and the law at Fordham Law School, argues that the field of neurolaw should more readily acknowledge that there is a history to law and neuroscience. The Article does not endeavor to provide a comprehensive history of brain science and law but rather to highlight a series of four important, yet often overlooked, “moments.” These moments are (1) foundational medico-legal dialogue in the nineteenth and early twentieth centuries, (2) the introduction of electroencephalography evidence into the legal system in the mid-twentieth century, (3) the use of psychosurgery for violence prevention in the 1960s and 1970s, and, most recently, (4) the development of neurolaw in personal injury litigation in the late 1980s and 1990s.

Although the terminology and technology change over time, these four moments make clear that there is a rich and complicated history of neurolaw. On the one hand, the history of law and neuroscience offers encouragement that law and policy can be improved through advances in brain science. On the other hand, however, this history offers caution about the limits of using brain science to address legal problems. I argue that we should learn from our past mistakes, build on our past successes, and forge a future of increasingly productive interdisciplinary conversation.

"fMRI and Lie Detection"

Recently published on SSRN:

"fMRI and Lie Detection"

Anthony D. Wagner, et al.

Abstract:     

Some studies have reported the ability to detect lies, with a high degree of accuracy, by analyzing brain data acquired using functional magnetic resonance imaging (fMRI). But is this new technology ready for its day in court?

This consensus knowledge brief from the MacArthur Foundation Research Network on Law and Neuroscience takes a closer look at the potential and pitfalls of fMRI lie detection techniques, providing insight into the areas of the brain involved in lying, the impact of memory on deception, how countermeasures may foil our efforts to detect lies, and factors that can create cause for concern about experimental validity.

 

PEBS Neuroethics Roundup (JHU)

Mind-Mappers to Help You Organize Your Thoughts, The New York Times   Against Willpower, Nautilus “Smart Drugs” May Help Intelligent People to Become Deeper Thinkers, A Study Involving Chess Players Has Found, Quartz Is AI a Threat to Christianity?, The Atlantic Space to Grow? Neurological Risks of Moving to Mars, The Neuroethics Blog "Treatment is the Result of Discovery", Johns Hopkins University & Medicine Our Bots, Ourselves, The Atlantic This Researcher Programmed the Perfect Poker-Playing Computer, Time Magazine The Purpose of Sleep? To Forget, Scientists Say, The New York Times 10 Incredible Robots That Are Inspiring Us to Build the First Artificial Human, Gizmodo A Dangerous Wait: Colleges Can’t Meet Soaring Student Needs for Mental Health Care, STAT This Song Was Scientifically Designed to Make Babies Happy, Quartz Neuroscience Explains Why We Get Hacked So Easily, MIT Technology Review Air Pollution May Contribute to Dementia, The New York Times Ultrastructural Evidence for Synaptic Scaling Across the Wake/Sleep Cycle, Science Magazine Genetic Test to Predict Opioid Risk Lacks Proof, Experts Say, Philly.com Women with a Thicker Brain Cortex Are More Likely to Have Autism, New Scientist   Particulate Air Pollutants, APOE Alleles and Their Contributions to Cognitive Impairment in Older Women and to Amyloidogenesis in Experimental Models, Translational Psychiatry Everything in Moderation: Moderate Use of Screens Unassociated with Child Behavior Problems, Psychiatric Quarterly A Molecular Census of Arcuate Hypothalamus and Median Eminence Cell Types, Nature Neuroscience Cross-Cultural Regularities in the Cognitive Architecture of Pride, PNAS  Prophylactic Ketamine Attenuates Learned Fear, Neuropsychopharmacology  Motor-Enriched Learning Activities Can Improve Mathematical Performance in Preadolescent Children, Frontiers in Human Neuroscience

Subscribe to our mailing list The Program in Ethics and Brain Sciences (PEBS) is a collaborative effort of the Johns Hopkins Berman Institute of Bioethics and the Johns Hopkins Brain Sciences Institute . The goal of PEBS is to ensure that research in brain science proceeds with an informed understanding of ethical issues, and that philosophical and empirical analyses of the advances in brain research proceed with an informed understanding of the science.