There is enormous potential for neuroscience to affect the law, according to Hank Greely, the Deane F. and Kate Edelman Johnson Professor of Law at Stanford University. The law is interested in both bodies and minds, he said—what people do, of course, but also why they did those things, what they were thinking about at the time, and what their intent was. Neuroscience provides possible new lines of evidence to illuminate these inner aspects of behaviors. Greely added that the law may also want to protect against the use of neuroscience techniques to invade privacy.
Although Greely called neuroscience “not ready for prime time” when it comes to the law, he noted that it has been invoked in many cases in the U.S. court system, for example, through neuroimaging of a criminal defendant’s brain. Given that neuroscience has the potential to play an even greater role, he said the legal system will have to determine how best to bring this into play. With this in mind, the National Academies of Sciences, Engineering, and Medicine’s Forum on Neuroscience and Nervous System Disorders, in collaboration with the Committee on Science, Technology, and Law (CSTL), hosted a public workshop on March 6, 2018. The workshop brought together stakeholders from neuroscience and legal communities in both the United States and the United Kingdom to explore the current uses of neuroscience, with a particular focus on neuroimaging technologies, in legal settings as well as the implications of potentially expanded use of these technologies in the future.
1 The planning committee’s role was limited to planning the workshop, and the Proceedings of a Workshop was prepared by the workshop rapporteurs as a factual summary of what occurred at the workshop. Statements, recommendations, and opinions expressed are those of individual presenters and participants and have not been endorsed or verified by the National Academies of Sciences, Engineering, and Medicine. They should not be construed as reflecting any group consensus.
Greely said that discussions about the intersection between neuroscience and the law began decades ago and intensified in 2002 with several meetings on neuroethics (Roskies, 2002). In 2007, the John D. and Catherine T. MacArthur Foundation launched the MacArthur Foundation Research Network on Law and Neuroscience, which supported interdisciplinary collaborative research, hosted many conferences, and published dozens of papers, books, and databases.2
Joshua Sanes, Jeff C. Tarr Professor of Molecular and Cellular Biology and Paul J. Finnegan Family Director of the Center for Brain Science at Harvard University, said neuroscience is permeating the legal system and that neuroscience evidence is being introduced at an increasingly rapid rate. Originally used mostly in death penalty cases, Sanes said it has extended to cases involving drugs, assault, burglary, child abuse, rape, fraud, theft, and kidnapping. Nita Farahany, professor of law and philosophy at the Duke University School of Law, has been tracking attempts to introduce neuroscience evidence into legal proceedings. Her study of cases adjudicated between 2005 and 2012 identified nearly 1,600 cases in which neurobiological evidence was used to bolster criminal defense arguments, and Farahany said these numbers are increasing each year. Neuroscientific evidence is introduced frequently in pretrial and sentencing proceedings to assess competency but has been less helpful in judging guilt, she said (Farahany, 2015).
Neuroscience has also begun to play an increasingly important role in making policy, particularly where the law is unclear or ambiguous, said Greely. Patti Saris, chief judge of the U.S. District Court for the District of Massachusetts, said that in several cases over the past decade, the U.S. Supreme Court prohibited the death penalty or mandatory life without parole for juvenile offenders under the age of 18, based in part on neuroscientific evidence that an immature brain renders these offenders less culpable than older individuals, and they may have better prospects in rehabilitation3 (Drinan, 2016). Youthful offenders are now sometimes defined as those age 25 or younger, said Judge Saris, who recently completed a 6-year term chairing the federal Sentencing Commission. Yet, while a growing body of evidence suggests that people may not gain full reasoning
3Roper v. Simmons, 543 U.S. 551 (2005); Graham v. Florida, 560 U.S. 48 (2010); Miller v. Alabama, 567 U.S. 460 (2012).
skills until age 25, recidivism statistics suggest that younger offenders may recidivate at a much higher rate, most commonly for drug trafficking, said Judge Saris.
Judges frequently must rule on the admissibility of neuroscientific expert testimony in individual cases to determine whether a defendant is competent or had the requisite intent to commit the crime, said Judge Saris. Neuroscientific evidence is also being used more often by the courts and by probation officers to understand drug addiction, she said. Judge Saris added that in recent years, neuroforensics has also become important for the training of state and federal judges, although the early and strong message to judges from scientists was that it is too soon to use neuroimaging as a reliable method for assessing culpability or competency.
Greely said the neuroforensics field was pushed to the forefront by the emergence of functional magnetic resonance imaging (fMRI), which enabled seeing inside the brains of healthy people without harming them, and then correlating what was seen in the physical brain with the subjective mental state. The science is now maturing due to increased global investments in brain science and technology development, said Steven Hyman, director of the Stanley Center for Psychiatric Research at the Broad Institute of the Massachusetts Institute of Technology (MIT) and Harvard University. These initiatives are focused largely on tool building and increasingly on applications in animal as well as human models, said Hyman. For example, in the United States, the Brain Research through Advancing Innovative Technologies (BRAIN) Initiative includes participation by the Defense Advanced Research Projects Agency (DARPA) on projects using invasive technologies to repair the brains of soldiers injured in recent wars, as well as civilian populations with traumatic brain injuries. Research is also being performed on brain–computer interfaces that permit paralyzed individuals to control devices, including prosthetics, with their thoughts.
Khara Ramos, senior science policy analyst at the National Institute of Neurological Disorders and Stroke, said the BRAIN Initiative is focusing on brain circuits. By building better tools to record and modulate activity in brain circuits and detect abnormalities in brain function, novel ways to diagnose and treat brain diseases are likely to emerge, she added. In terms of understanding neural circuits and producing dynamic pictures of brain function, the BRAIN Initiative is funding efforts to improve large-scale
monitoring of neural activity by recording from large ensembles of neurons in real time, said Ramos. They are also funding research in new imaging technologies and both invasive and non-invasive neuromodulation modalities. While many of these emerging technologies are currently confined to animal studies, a few participants noted that successful demonstration of their use may serve as an impetus for researchers in academia and industry to modify them in the future for use in humans.
Joshua Buckholtz, associate professor of psychology at Harvard University, added that neuroscience has developed at a pace that could scarcely be imagined in the early 1940s when Stephen Kuffler first described synaptic transmission (Kuffler, 1942). In recent years, the emergence of the new subdiscipline of cognitive neuroscience has harnessed an array of ingenious technologies and sophisticated tools such as fMRI, shedding light on the black box of the human mind. Yet, science moves much faster than policy making, and nowhere is this more evident than in the courts, said Buckholtz. The potential impact of these technologies on legal cases raises both hopes and fears, based on speculation that brain imaging holds the promise of detecting liars, determining criminal responsibility, quantifying pain and suffering, and predicting violence, he said. But Hyman cautioned that the use of these technologies raises important ethical questions about agency, responsibility, memory, and invasion of privacy, among others.
Throughout the workshop, participants raised an array of challenges that limit the translation of neuroscience research to the courtroom (see Box 1-1 for an overview of those limitations and subsequent chapters for additional detail).
The workshop was intended to advance an understanding of neurotechnologies that could impact the legal system and the state of readiness to consider these technologies and, where appropriate, to integrate them into the legal system, said Hyman. By engaging an interdisciplinary group of scientists, clinicians, jurists, and legal scholars, the workshop aimed to assess, in a coordinated and proactive manner, how best to integrate neuroscientific evidence into legal practice, said Buckholtz. The use of neuroscientific evidence to make legal determinations about minds and brains always needs to be constrained by the limits of scientific inference, he said, and resolving inferential issues that lie at the intersection of law and neuroscience will be required to fulfill the promise of neuroscience with respect to the law. Sanes added that the workshop could provide an opportunity to get ahead of the curve with some of the more innovative technologies, preventing the inappropriate use of these technologies in legal settings. Judge Saris proposed that the workshop could serve as a first step toward the development of a consensus report that would outline best practices—as accepted by the scientific community—regarding the use of these technologies. Such a consensus report would help judges and policy makers understand the reliability of current neuroscientific methods. See Box 1-2 for the Statement of Task for the workshop.
The committee will develop the agenda for the workshop, select and invite speakers and discussants, and moderate the discussions. A proceedings of the presentations and discussions at the workshop will be prepared by a designated rapporteur in accordance with institutional guidelines.
Chapter 2 summarizes how neurotechnologies and neuroscience currently may produce different levels of evidence for use in legal settings, despite questions about the validity of that evidence. Chapter 3 peeks into the future, exploring emerging technologies that may potentially reveal even more detailed and complex information about human behavior to be used in court. In Chapter 4, judges and legal scholars weigh in with a discussion of how to establish frameworks and standards for using neuroscience evidence, both now and in anticipation of new neurotechnologies on the horizon. Chapter 5 concludes with some thoughts about remaining areas needing exploration and potential next steps to move the field forward.
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