Fault Lines
21 June 2017

Mainstreaming the Brain: Coming Soon to a Courtroom Near You?

Oct. 19, 2015 (Mimesis Law) — Last week, Newsweek and New York Magazine featured blurbs about a new mini-series on PBS called The Brain With David Eagleman. PBS bills it as a show featuring a neuroscientist (Eagleman) who “explores the wonders of the human brain in an epic series that reveals the ultimate story of us, why we feel and think the things we do.”

For Eagleman’s part, he considers the show to be a conduit to “self-knowledge,” which leads to explanations for and solutions to society’s ills, such as crime and genocide.

This provoked an immediate and visceral reaction on my own part, which went something like “oh, so this is how they’ll repurpose the scripts from the widely panned television incarnation of Minority Report on Fox.” My Fault Lines colleague, Andrew Fleischman, summed it up more eloquently (he does have a philosophy degree, after all): “we can’t have thought crimes.”

Eagleman’s show aims to dive deep into the brain. The brain is a scientific frontier. Like the chasms and trenches deep in the ocean, there is a lot that we don’t know. Indeed, as a society we have continuously questioned who is to blame for the crimes and atrocities that occur? In death penalty cases, we have created an entire regime of assessing “mitigating” and “aggravating” factors, and often brain development, processing and response plays a role in this assessment.

But can we really read someone’s mind? To a certain extent, the functional MRI (“fMRI”) that Eagleman’s show focuses on permits scientists to peer inside the mind by scanning and creating an image of brain activity. Some believe that the patterns of activity can determine a variety of things, such as whether a person is telling the truth or a lie, whether person has been to a place based on the brain’s recognition of a picture, and whether a person has previously met someone by determining if the brain recognizes another person’s face.

If the science is solid, this would transform criminal investigations. Setting aside Fourth and Fifth Amendment concerns (is a non-consensual brain scan a violation of the right to remain silent?).

Moreover, since studies suggest that juries are unduly swayed by science, the legal profession has a duty to abstain from the introduction of new scientific evidence until its reliability is beyond reproach – not only to protect the blind adherence the jury gives to science, but to protect the dignity of the process as well.

I’ve written extensively about the “CSI Effect.” In a nutshell, the theory asserts that jurors who watch television programs such as CSI and NCIS improperly acquit defendants in the absence of scientific evidence has been presented. While prosecutors and judges bemoan this, let’s not forget that the less-publicized inverse CSI effect is also a problem: fancy scientific evidence is taken as gospel and is treated as certain evidence of guilt.

While science is emerging as the bedrock of criminal investigations, untested and unproved theories generate some alarming problems. New techniques require validation studies that give an indication about their precision and accuracy. In a civil case involving an MRI as a lie detector, the scientist admitted that his accuracy rates on one study were as high as “eighty-six to ninety-seven percent” while in another study, his accuracy rate dropped “unexpectedly” to a mere “seventy-one percent.” An absence of scientific accuracy results in an absence of legal reliability.

Don’t get me wrong: mapping the brain may be as informative as mapping the human genome. But just like the genome project took decades of decoding and deciphering to figure out the building blocks of the human body, the same is true for as complex a structure as the brain.

Eagleman’s series is one to be watched. For example, I do like his notion that the brain has many masters: “There’s no single you… Instead, you’re made up of competing drives, a team of rivals, all of whom want to be in control.” This would explain why we tend to be our own worst critics and makes it hard to, as I call it, turn off the jerk in your brain. But at that same time, it implies that there are other factors beyond brain structure and function at work.

For one, there is a component of nature v. nurture that should not be ignored. James Fallon, a neuroscientist exemplifies the role that nature can have on brain development. Fallon is a neuroscientist who discovered in 2011 that his brain scan was a road map to psychopathy. In other words, his own brain scan “showed low activity in certain areas of the frontal and temporal lobes linked to empathy, morality and self-control”—the hallmarks of a criminal mind.

As a “non-violent, stable and successful scientist,” Fallon may be “obnoxiously competitive,” but he isn’t a serial killer. While Fallon has a protein present in the brain that may put him at higher risk for psychopathic tendencies, additional studies have shown that this protein can also “open up the region to be more significantly affected by environmental influences, and so a positive (or negative) childhood is especially pivotal in determining behavioral outcomes.”

So this brings me back to my point. Juries can be very susceptible to scientific evidence brought into the courtroom. Neuroscience deserves rigorous research and development and it has paved the way numerous discoveries. But before we unleash it in a courtroom as a method of separating truth from lies or guilt from innocence.

Law has a way of quickly being outpaced by technology. Few decisions have contended with brain scans and the constitutional and reliability issues created by a machine-led Star Chamber. Moreover, we can’t afford a system where you are ultimately determined by the relative “normality” of your brain.

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  • Richard G. Kopf
    19 October 2015 at 1:02 pm - Reply

    Jessica Gabel Cino,

    I understand why you stress the need for caution. Indeed, I second it.

    However, for criminal defendants, I can see a real “upside” for the application of neuroscience in specific cases. As judges grapple with sentencing offenders to prison terms, neuroscience will help us better understand whether our general assumptions about “free will” are correct for specific offenders. Moreover, if sentencing reform brings back a rehabilitative model, neuroscience holds out a great potential for isolating cognitive and behavioral deficits that should be addressed in prison. In short, defense lawyers would be well advised, in my opinion, to view developments in the field of neuroscience as having a significant potential to do certain of their clients much more good than harm.

    Thanks for writing this article. What you have written about is truly significant.

    All the best.

    Rich Kopf