January 22, 2010
Neuroscience In The Justice System
Neurolaw: the use of neuroscience in legal settings. Scare you any?
In the article "Neurolaw," in the inaugural issue of WIREs Cognitive Science, co-authors Walter Sinnott-Armstrong and Annabelle Belcher assess the potential for the latest cognitive science research to revolutionize the legal system.
Neurolaw, also known as legal neuroscience, builds upon the research of cognitive, psychological, and social neuroscience by considering the implications for these disciplines within a legal framework. Each of these disciplinary collaborations has been ground-breaking in increasing our knowledge of the way the human brain operates, and now neurolaw continues this trend.
I think one of the ways neuroscience is going to be used is to show that we can't trust human memories in many settings. It isn't just going to be about ascertaining what a person knows or has done. It'll also be about whether we can trust what a person believes to be witnessed events.
How accurate will brain scans become at detecting deception? Will brain scans be able to detect whether, say, a person's reaction to a picture of a crime scene shows they've been there?
One of the most controversial ways neuroscience is being used in the courtroom is through 'mind reading' and the detection of mental states. While only courts in New Mexico currently permit traditional lie detector, or polygraph, tests there are a number of companies claiming to have used neuroscience methods to detect lies. Some of these methods involve electroencephalography (EEG), whereby brain activity is measured through small electrodes placed on the scalp. This widely accepted method of measuring brain electrical potentials has already been used in two forensic techniques which have appeared in US courtrooms: brain fingerprinting and brain electrical oscillations signature (BEOS). Brain fingerprinting purportedly tests for 'guilty knowledge,' or memory of a kind that only a guilty person could have. Other forms of guilt detection, using functional magnetic resonance imaging (fMRI), are based on the assumption that lying and truth-telling are associated with distinctive activity in different areas of the brain. These and other potential forms of 'mind reading' are still in development but may have far-reaching implications for court cases.
If neuroscience will be used in the legal system will its use be voluntary?
"Some proponents of neurolaw think that neuroscience will soon be used widely throughout the legal system and that it is bound to produce profound changes in both substantive and procedural law," conclude the authors. "Other leaders in neurolaw employ a less sanguine tone, urging caution so as to prevent misuses and abuses of neuroscience within courts, legislatures, prisons, and other parts of the legal system. Either way we need to be ready to prevent misuses and encourage legitimate applications of neuroscience and the only way to achieve these goals is for neuroscientists and lawyers to work together in the field of neurolaw."
I expect dictatorships to use brain scans and other neurotech in courts and in police investigations a lot more aggressively. China will use it more than the United States.
"China will use it more than the United States."
At least at first . . .
Our medical knowledge of brain function and disease is still very rudimentary. I know this is a future-oriented blog, but brain scans in court is at least 50 years out. Did this come from a William Gibson book or something?
If neuroscience will be used in the legal system will its use be voluntary?
The legal issues will depend on the nature of the tech.
If it's something similar to a lie detectors now in use such that there is an interview of a suspect where they answer questions and we determine if their answers are lies or not (using the new super-tech), then it's really a fifth amendment issue. Right now the 5th amendment has been interpreted to generate a host of rights, pertinently: 1) the right to refuse police interviews and testify at trial, and 2)the right to have no evidence of refusal to talk to police or testify at trial entered into evidence against you at the trial (refusal cannot be mentioned to, nor considered by trier of fact).
Imagine a future scenario where we have the deception brain scan tech. I think we will retain the right to #1 above such that people can refuse to be interviewed or subjected to an interview/scan pretrial or at trial. I think, however, we will reevaluate #2. In other words, people will be able to refuse the scan, but juries can be informed of such and use that in their deliberations. As the tech becomes known and relied on, juries will take this as an auto guilty - something comparable to a refusal to submit to a DNA comparison in a rape case where there was a semen sample that would have settled the issue). IMO the legal/constutional basis for #2 was always tenuous. My understanding is that the 'original intent" of the 5th was to prevent confessions from being tortured out of a citizen either pre-trial or at trial. The notion that a jury could not take into account a person's refusal to speak where they aren't under the threat of torture, however, was always a dubiously necessary protective corollary of that right. My guess is we'll do away with #2 in the face of the true and obvious benefit of convicting more guilty and freeing more innocent (assuming the tech truly works).
Alternatively, however, if the tech is such that a scan doesn't need an accompanying interview of defendant - just a helmet we can plop on their heads and we know 'guilty'/not guilty' in five minutes - then the law will probably treat it as it currently obtaining a blood draw. Here, pre-trial, cops need a warrant to obtain that blood sample. After charges have been filed, prosecutors can get a court order for blood/dna as part of the discovery process. If we allow blood draw over the suspect's refusal in both situations, why should be treat a (theoretically) less intrusive 'bran scan' any differently?
The issues above will only come into play after the reliability of the tech is proven and accepted. Current lie detectors aren't sufficiently reliable for the courts. They've reacted by simply not allowing in any evidence of results whatever they tend to prove (guilt or innocence) regardless of how voluntary the test was.
Lots of stuff can be measured very precisely, i.e. pulse, blood pressure, respiration. Whether those measurements indicate truth, or lies, mistake, heartfelt belief, or hidden knowledge, or just bad attitude is necessarily a matter of opinion. One may, I'm sure, measure other brain activity very precisely but there still needs somebody to claim expertise who is willing to testify under oath that a measurement of less than .004 giggleherz taken with a temperature rise of less than .004 F. located in the left pseudocontemporary fold of the megilla arugulla means, in his opinion based on experience and statistical analysis done by him, that a person cannot lie about the matter under consideration. Hey! It's still an opinion.
Who will testify to such? Why, people who have hardware to sell, of course. And people who have a story to sell to a jury, naturally.
But it's still Hollywood.
If they use it on terrorists in the course of interrogation, it will be declared torture, or at least a violation of their rights.
Count me frightened. I'm also intimidated by the cheapening genome-sequencing in our near future.
The power of this is in who is interpreting the data. And naturally who remains 'exempt' from its application. Would for instance a president citing Executive Privilege and conducting a war based on - shall we say a 'lie' would that individual be exempt from this sort of invasion to the psyche?
This is a huge risk for all sorts of tyranny- if you do not support the war- you are a traitor.
And who indeed shall formulate the questions Psychologists? After all it was psychologists who designed the shame and humiliation tactics used upon prisoners. Who indeed rises upon their fellow humans to the position of Grand Interpreter? Have we ever evidenced good that came from this much power?
We lose a great deal by liars in our world- I have a feeling we will lose far more should we begin to forge ahead with these sorts of techniques. I've been in work situations where the regime has changed and what was once a model employee changed by virtue of affiliation. NO- I trust no one to this degree of power over the individual. Lying in its many forms is often adaptive- impossible not to- and remain safe- this will remove that protection- and it's dangerous to remove protections and replace them with nothing.