Neuroimages in court: less biasing than feared

doi:10.1016/j.tics.2013.01.008

Trends in Cognitive Sciences

Volume 17, Issue 3, March 2013, Pages 99-101

https://doi.org/10.1016/j.tics.2013.01.008 Get rights and content

Neuroscience is increasingly poised to play a role in legal proceedings. One persistent concern, however, is the intuition that brain images may bias, mislead, or confuse jurors. Initially, empirical research seemed to support this intuition. New findings contradict those expectations, prompting a rethinking of the ‘threat’ of neuroscience in the courtroom.

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Free will has been at the heart of philosophical and scientific discussions for many years. However, recent advances in neuroscience have been perceived as a threat to the commonsense notion of free will as they challenge two core requirements for actions to be free. The first is the notion of determinism and free will, i.e., decisions and actions must not be entirely determined by antecedent causes. The second is the notion of mental causation, i.e., our mental state must have causal effects in the physical world, in other words, actions are caused by conscious intention.
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This chapter canvasses the current relevance of behavioral neuroscience to the law, especially to issues of criminal responsibility and competence. It begins with an explanation of the legal doctrines at stake. I then explore the source of the often-inflated claims for the legal relevance of neuroscience. The next section discusses the scientific status of behavioral neuroscience. Then, it addresses two radical challenges to current conceptions of criminal responsibility that neuroscience allegedly poses: determinism and the death of agency. The question of the specific relevance of neuroscience to criminal law doctrine, practice, and institutions is considered next. This is followed by a discussion of how neuroscience evidence is being used in criminal cases in five different countries, including the United States. The penultimate section points to some areas warranting modest optimism. A brief conclusion suggests that neuroscience is at present of limited legal relevance, and advances in the science might alter that judgment.
Neuroscience and everyday life: Facing the translation problem
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To enable the impact of neuroscientific insights on our daily lives, careful translation of research findings is required. However, neuroscientific terminology and common-sense concepts are often hard to square. For example, when neuroscientists study lying to allow the use of brain scans for lie-detection purposes, the concept of lying in the scientific case differs considerably from the concept in court. Furthermore, lying and other cognitive concepts are used unsystematically and have an indirect and divergent mapping onto brain activity. Therefore, scientific findings cannot inform our practical concerns in a straightforward way. How then can neuroscience ultimately help determine if a defendant is legally responsible, or help someone understand their addiction better? Since the above-mentioned problems provide serious obstacles to move from science to common-sense, we call this the 'translation problem'. Here, we describe three promising approaches for neuroscience to face this translation problem. First, neuroscience could propose new 'folk-neuroscience' concepts, beyond the traditional folk-psychological array, which might inform and alter our phenomenology. Second, neuroscience can modify our current array of common-sense concepts by refining and validating scientific concepts. Third, neuroscience can change our views on the application criteria of concepts such as responsibility and consciousness. We believe that these strategies to deal with the translation problem should guide the practice of neuroscientific research to be able to contribute to our day-to-day life more effectively.
Neuroscience in forensic psychiatry: From responsibility to dangerousness. Ethical and legal implications of using neuroscience for dangerousness assessments
2016, International Journal of Law and Psychiatry
Citation Excerpt :
Others suggest that the real explanation for the prejudicial nature of neuroscience evidence does not lie in their visual impact, i.e., in the power of image, but in the difference between structural and functional imaging: structural abnormalities are more likely to influence judgments and mitigate punishment decisions than functional abnormalities, as the latter have less causal potency than the structural ones (Choe, 2014). In any case, even though more recent researches suggest that neuroscience is not as biasing as feared (Farah & Hook, 2013; Michael, Newman, Vuorre, Cumming, & Garry, 2013; Roskies, Schweitzer, & Saks, 2013; Schweitzer, Baker, & Risko, 2013; Schweitzer et al., 2011), the prejudicial impact of neuroscientific evidence remains an open empirical question (Gruber & Dickerson, 2012; McCabe, Castel, & Rhodes, 2011; Nadelhoffer et al., 2012) to be examined. One of the difficulties with evidence involving neuroimaging is that any evidentiary use involves the interpretation of the images themselves as well as inferences as to the psychological status of the individual (Eastman & Campbell, 2006).
Neuroscientific evidence is increasingly being used in criminal trials as part of psychiatric testimony. Up to now, “neurolaw” literature remained focused on the use of neuroscience for assessments of criminal responsibility. However, in the field of forensic psychiatry, responsibility assessments are progressively being weakened, whereas dangerousness and risk assessment gain increasing importance. In this paper, we argue that the introduction of neuroscientific data by forensic experts in criminal trials will be mostly be used in the future as a means to evaluate or as an indication of an offender's dangerousness, rather than their responsibility. Judges confronted with the pressure to ensure public security may tend to interpret neuroscientific knowledge and data as an objective and reliable way of evaluating one's risk of reoffending. First, we aim to show how the current socio-legal context has reshaped the task of the forensic psychiatrist, with dangerousness assessments prevailing. In the second part, we examine from a critical point of view the promise of neuroscience to serve a better criminal justice system by offering new tools for risk assessment. Then we aim to explain why neuroscientific evidence is likely to be used as evidence of dangerousness of the defendants. On a theoretical level, the current tendency in criminal policies to focus on prognostics of dangerousness seems to be “justified” by a utilitarian approach to punishment, supposedly revealed by new neuroscientific discoveries that challenge the notions of free will and responsibility. Although often promoted as progressive and humane, we believe that this approach could lead to an instrumentalization of neuroscience in the interest of public safety and give rise to interventions which could entail ethical caveats and run counter to the interests of the offenders. The last part of this paper deals with some of these issues—the danger of stigmatization for brain damaged offenders because of adopting a purely therapeutic approach to crime, and the impact on their sentencing, in particular.
Fooled by the brain: Re-examining the influence of neuroimages
2013, Cognition
Citation Excerpt :
A salient example of such research, published in Cognition, emerged recently with the demonstration that the presence of neuroimages altered individuals’ judgments of scientific credibility (McCabe & Castel, 2008). This finding has had a striking impact in cognitive science and beyond as evidenced, for example, by research in the legal domain where “neuroevidence” has the potential to bias legal decision makers (Appelbaum, 2009; Compton, 2010; Roskies, Schweitzer, and Saks, 2013; Vincent, 2011). This subsequent research, however, has largely failed to corroborate the original findings.
A series of highly-cited experiments published in 2008 demonstrated a biasing effect of neuroimages on lay perceptions of scientific research. More recent work, however, has questioned this bias, particularly within legal contexts in which neuroscientific evidence is proffered by one of the parties. The present research moves away from the legal framework and describes five experiments that re-examine this effect. Experiments 1 through 4 present conceptual and direct replications of some of the original 2008 experiments, and find no evidence of a neuroimage bias. A fifth experiment is reported that confirms that, when laypeople are allowed multiple points of reference (e.g., when directly comparing neuroimagery to other graphical depictions of neurological data), a neuroimage bias can be observed. Together these results suggest that, under the right conditions, a neuroimage might be able to bias judgments of scientific information, but the scope of this effect may be limited to certain contexts.
Neurobiology and crime: A neuro-ethical perspective
2019, Journal of Criminal Justice
Citation Excerpt :
For example, in the US, developmental brain science has been used to argue against capital punishment and life imprisonment for juveniles due to not fully developed brain areas in the frontal cortex making it harder for adolescents to resist deviant behavior and more likely for them to indulge in risky behaviors (Cohen & Casey, 2014; Steinberg, 2013). Neurobiological and neuropsychological measures can (potentially) be used in criminal justice settings as additional means to understand and predict criminal behavior, to inform forensic psychiatric reports, to assess competency to stand trial, to substantiate the reliability of statements of witnesses, victims or defendants, and to ameliorate forensic mental health treatment (Chandler, 2016; de Kogel & Westgeest, 2015; Meynen, 2013a; Roskies, Schweitzer, & Saks, 2013). For example, such measures can reveal brain tumors (e.g., in case of acquired pedophilia), identify structural and functional brain abnormalities (e.g., in case of fronto-temporal dementia, traumatic brain injury, abnormalities linked to schizophrenia), and in the future potentially inform recidivism risk (e.g., as suggested by preliminary studies linking brain abnormalities to future crime) (Aharoni et al., 2014; Brown & Murphy, 2010; Elman, Borsook, & Volkow, 2013; Farah, Hutchinson, Phelps, & Wagner, 2014; Moriarty, 2008; Volkow & Baler, 2014).
Current neurobiological research in the field of criminology focuses on the neurobiological characteristics associated with antisocial behavior, the prediction of antisocial behavior later in life based on neurobiological risk factors, and the ways in which neurobiological factors interact with psychological and environmental risk factors. Although the use of neurobiological knowledge has the potential to make several criminal justice practices more objective and humane, it may involve practices that are challenging with respect to stigma, neuro-determinism, autonomy and mental liberty. Four main areas of interest can be identified where neurobiology plays or could play a role: (1) criminological research focused on understanding criminal behavior, (2) the (early) detection/prediction of and intervention in deviant behavior, (3) criminal proceedings: to assess responsibility and inform sentencing, and (4) forensic rehabilitation and treatment settings. In this paper, I discuss the main ethical dilemmas that arise when considering the use of recent neurobiological advances in these areas.

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Trends in Cognitive Sciences

Forum: Science & SocietyNeuroimages in court: less biasing than feared

Cognition

Neuroimaging and inferential distance

Neuroethics

The seductive allure of neuroscience explanations

J. Cogn. Neurosci.

The effects of neuroimaging and brain injury on insanity defenses

Behav. Sci. Law

The influence of fMRI lie detection evidence on juror decision making

Behav. Sci. Law

Not guilty by reason of neuroimaging: the need for cautionary jury instructions for neuroscience evidence in criminal trials

Vanderbilt J. Entert. Technol. Law

‘Soft’ science in the courtroom?: The effects of admitting neuroimaging evidence into legal proceedings

Penn Bioeth. J.

Forum: Science & Society
Neuroimages in court: less biasing than feared