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Neuroscience approaches the bench

June 10, 2014 By Terry Devitt

American courts have long relied on the expert help of science to sort out knotty legal tangles. From fingerprinting to DNA fingerprinting, science has been used widely and with growing frequency to help render criminal and civil justice.

But science, for all its evidential power, can be messy. It is complex, highly nuanced and ripe for abuse as competing forces vie for favorable judgments.

Ron Kalil

Ron Kalil

This can be especially problematic for emerging or rapidly growing fields such as neuroscience where everything from brain chemistry to experimental imaging techniques are increasingly in play to help sort through a spectrum of legal issues including end-of-life quandaries, memory and deception, violence and pain, and the culpability of adolescents.

In an effort to help jurists cope with the growing presence of neuroscience in the courts, the American Association for the Advancement of Science (AAAS) and the Dana Foundation sponsor seminars for judges on emerging issues in neuroscience, including one jointly hosted on the University of Wisconsin–Madison campus last week by the UW–Madison Neuroscience and Public Policy Program and the Law School.

The two-day seminar featured experts on the neuroscience of pain, memory and deception, substance dependence and violence, among others. The seminar, according to Ron Kalil, director of the Neuroscience and Public Policy Program, is designed to expose judges at all levels to some of the best neuroscience expertise matched to the dilemmas that crop up in the courts.

“I believe these judicial seminars can help judges by introducing them to a science-law nexus,” says Kalil, a faculty member in the UW School of Medicine and Public Health, adding that the seminars are topically broad, providing jumping-off points and a map for jurists who want to know more about the role neuroscience can and does play in the courts.

“Our audience is judges,” says Mark Frankel, director of the AAAS Scientific Responsibility, Human Rights and Law Program, explaining that issues related to neuroscience are not only complex but also extraordinarily diverse.

The seminar, for example, covered ground that included the neuroscience of coma and vegetative and minimally conscious states, where critical end-of-life decisions need to be made. “Coma prognosis can be all over the map,” notes Michael Williams, a neurologist and the medical director of the Sandra and Malcolm Berman Brain and Spine Institute in Baltimore. “You can go from death to full recovery.”

Emerging neuroscience technologies and their use or potential use in the courtroom were also discussed.

For example, functional magnetic resonance imaging techniques as a form of lie detection are being actively promoted when the technology, used for that purpose, is far from accepted by the neuroscience community, according to Craig Stark, a professor of neuroscience and behavior at the University of California, Irvine: “It looks cool and has implied authority,” Stark notes, “but it is not accurate” and does not take into account differences in brain anatomy and individual brains, noisy data, or the fact that there is no such thing as a “normal brain” for comparison.

“While many seemingly diverse issues involving neuroscience make their way to the courts, the two major categories of issues, each with their own variations and frequently involving sentencing rather than conviction, are culpability and intention,” notes Kalil.

Response from the judges attending the seminar was extremely positive, according to Kalil, reflecting the expertise of the speakers and the quality of the program organized by AAAS.