Neuroforensics Exploring the Legal Implications of Emerging Neurotechnologies: Proceedings of a Workshop (2018) / Chapter Skim
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4 Developing a Framework for Use of Evidence from Emerging Neurotechnologies
4 Developing a Framework for Use of Evidence from Emerging Neurotechnologies
Pages 31-40
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From page 31... ...
. • Translating scientific concepts into constructs appropriate for legal decision making requires consideration of whether group data per tain to an individual case, operationally defining legal concepts as scientifically measurable terms, and understanding the limits of us ing probabilistic data to explain categorical terms (Faigman)
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From page 32... ...
This is why proactive and thoughtful efforts are needed to define the general and specific criteria that neuroscientific evidence, primarily neuroimaging, needs to fulfill before using it to make valid inferences about the behaviors, actions, or intentions of an individual. Judge Patti Saris agreed, expressing her hope that the workshop would be a first step toward developing scientific standards for evaluating neuroimaging technologies as a means of helping judges and policy makers understand the reliability of current neuroscientific methods.
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From page 33... ...
Digardi Distinguished Professor of Law at the University of California Hastings College of Law and professor of psychiatry at the University of California, San Francisco, School of Medicine, added that the adversarial process leads to what might be called "expert mining," where both sides find experts who agree with their litigation position. He argued that Daubert has actually made it more difficult to get expert testimony admitted, citing the Daubert case itself, as well as in her cases of the "Daubert trilogy" -- Joiner and Kumho Tire -- in which the expert testimony was ultimately excluded.1 Judge Saris added that the multiple requirements specified by the Daubert decision have also made the judge's job more difficult.
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From page 34... ...
The defense presented expert testimony from another doctor who claimed that fMRI scans indicated that the accused doctor was telling the truth about not cheating or defrauding the government. The judge excluded the evidence, based on Rule 702, ruling the technology was not ready for courtroom use, and also ruled that the "danger of unfair prejudice substantially outweighed the probative value of the evidence" (Rule 403)
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From page 35... ...
Jack Gallant noted that science's focus on "G" may be changing as cognitive neuroscience research increasingly focuses on individual studies of individual subjects, leading to the acquisition of more information on individual differences.
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From page 36... ...
Faigman described a series of cases in which the Supreme Court addressed competency to be executed based on intellectual disability.4 These cases have been argued based on an evolving operational definition of intellectual disability under the Eighth Amendment, which "prohibits the imposition of cruel and unusual punishment." In Atkins v. Virginia, the Court left the decision to the states to define intellectual disability.
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From page 37... ...
Scientifically unsound forensic evidence is frequently admitted, she said, noting that the National Research Council in 2009 published a report that concluded that the courts have been utterly ineffective in assessing the research basis for forensic science (NRC, 2009)
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From page 38... ...
Indeed, she said that criminal law is based, in large part, on normative value judgments. Legal concepts related to addiction, alcoholism, the impact of toxic stress, self-defense, and mens rea have not been adequately mapped onto validated neuroscientific concepts, she said, leading to policies such as Florida's stand-your-ground doctrine that not only have nothing to do with science but may even run counter to what neuroscience would suggest.
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From page 39... ...
Judge Hervey oversees a grant from the Texas legislature to educate judges, defense attorneys, and prosecutors on issues such as actual innocence and the challenges relating to eyewitness identification, false confessions, mental illness, and the use of informants. In 2008, they established the Texas Criminal Integrity Unit to look at wrongful convictions with the aim of making changes at the front end of the system rather than simply catching mistakes at the back end.
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From page 40... ...
also has established a program to identify court-appointed experts or technical advisors. Buckholtz advocated for a peer-review system to evaluate scientific information under the special master template, which would allow scientific information to be evaluated by an independent review conducted by scientists with relevant knowledge.
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