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Neuroscientists in Court Owen D Vanderbilt University Law School Scholarship@Vanderbilt Law Vanderbilt Law School Faculty Publications Faculty Scholarship 2014 Neuroscientists in Court Owen D. Jones Anthony D. Wagner Stanford University David L. Faigman University of California, Hastings College of the Law Marcus E. Raichle Washington University in St. Louis Follow this and additional works at: https://scholarship.law.vanderbilt.edu/faculty-publications Part of the Courts Commons, Criminal Law Commons, Evidence Commons, and the Neuroscience and Neurobiology Commons Recommended Citation Owen D. Jones, Anthony D. Wagner, David L. Faigman, and Marcus E. Raichle, Neuroscientists in Court, 14 Nature Reviews Neuroscience. 730 (2014) Available at: https://scholarship.law.vanderbilt.edu/faculty-publications/1081 This Article is brought to you for free and open access by the Faculty Scholarship at Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Law School Faculty Publications by an authorized administrator of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. PERSPECTIVES Whether this will provide a net gain NEUROSCIENCE AND THE LAW — SCIENCE AND SOCIETY in the fair and effective administration of justice is a topic of current debate23–26. Neuroscientists in court But the new types and increasing quality of neuroscientific evidence — particularly brain imaging techniques, on which we pri- Owen D. Jones, Anthony D. Wagner, David L. Faigman and Marcus E. Raichle marily focus here — ensure that the interac- Abstract | Neuroscientific evidence is increasingly being offered in court cases. tion between law and neuroscience is both unavoidable and intensifying. This article Consequently, the legal system needs neuroscientists to act as expert witnesses explores some of the reasons why neuro- who can explain the limitations and interpretations of neuroscientific findings scientific evidence is being offered in legal so that judges and jurors can make informed and appropriate inferences. The proceedings, several key features of law growing role of neuroscientists in court means that neuroscientists should be that neuroscientists may wish to know and aware of important differences between the scientific and legal fields, and, several important clarifications about and limitations of neuroscience that the legal especially, how scientific facts can be easily misunderstood by non-scientists, system needs to learn from neuroscientists. including judges and jurors. Why neuroscience? In 2005, convicted child-rapist Grady Nelson of documentary neuropsychological reports Why is the legal system increasingly turning brutally murdered his wife Angelina. After and sometimes in the form of neuroscien- to neuroscientists? The answer is simple: it stabbing her 61 times, he left a butcher knife tists testifying in court proceedings. Some of does so in the hope that new technologies may embedded in her brain. Later, his own life these neuroscientists appear willingly, and help to satisfy many acute and long-lingering hung in the balance as the Florida jury that some reluctantly. It appears that sometimes needs, including the law’s need to answer convicted him of murder next had to decide their involvement in a case sparks a plea bar- questions such as: is this person responsible whether he would be executed or spend his gain or settlement before trial7,8. The princi- for his behaviour? What was this person’s life behind bars. Nelson’s attorney offered to pal importance of the example cases above is mental state at the time of the act? How much provide neuroscientific evidence — specifi- to raise this question: when and how should capacity did this person have to act differently? cally, quantitative electroencephalography neuroscientists participate in litigation? What are the effects of addiction, adolescence (QEEG), introduced through the testimony In barely a decade, a distinct field of ‘law or advanced age on one’s capacity to control of a neuroscientist — to suggest that Nelson and neuroscience’ has emerged4,6–20, accom- behaviour? How competent is this person? had potentially relevant brain abnormali- panied by a sharp rise in both conceptual and What does this person remember? How accu- ties. The jury should hear this evidence, the empirical scholarship (FIG. 1), conferences (see rate is this person’s memory? What are the attorney argued, because although it may not neurolaw conferences on The MacArthur effects of emotion on memory, behaviour and excuse Nelson’s behaviour, it should mitigate Foundation Research Network on Law and motivation? Is this person telling the truth? his punishment1. Neuroscience website), international neu- In how much pain is this person? How badly In a different case, in 2010, psychologist rolaw societies (see the external links page injured is this person’s brain? Lorne Semrau went on trial in federal court on The MacArthur Foundation Research Because society uses the legal system to for allegedly masterminding healthcare fraud Network on Law and Neuroscience website), help regulate the behaviour of its citizens, the in connection with psychiatric care that ‘law and neuroscience’ courses being taught legal system turns to disciplines (typically two of his companies provided for patients in law and other departments internationally, social science disciplines, such as psychology, in nursing homes. His attorney offered to a forthcoming coursebook21, new neurosci- economics and sociology) that claim to have introduce neuroscientific evidence — specifi- ence–law joint-degree programmes, and so special insights into the causes of human cally, the results of a functional MRI (fMRI) on. In light of the possibility that techno- behaviour, what patterns human behaviour test, introduced through the testimony of a logical advances might aid the legal system, manifests and how people are likely to react neuroscientist — to suggest that Semrau was and in view of how important it is for law to as law shapes incentive structures within truthful when he claimed that any overbill- separate neuroscientific wheat from chaff, social environments27. Neuroscience may in ings were accidental (rather than purposeful, the John D. and Catherine T. MacArthur part be ‘hot’ in law because its technological as the government would have to prove). Foundation has funded two consecutive sexiness may lend it persuasive power and Among the evidence2,3 he offered to intro- interdisciplinary, collaborative research ini- because legal advocates are, in turn, always duce was the neuroscientist’s conclusion that: tiatives in the United States — the Law and alert for potentially persuasive ways to aid “Dr. Semrau’s brain indicates he is telling the Neuroscience Project and The MacArthur their clients. However, in our view, neurosci- truth in regards to not cheating or defrauding Foundation Research Network on Law and ence has become attractive mainly because the government” (REF. 2). Neuroscience. These developments as well many legal professionals, courts and com- In these cases, and a steadily increasing as the rising number of references to neu- mentators hope or believe that it can provide number of similar cases in both criminal roscientific evidence in court opinions4,22 a tool that not only usefully supplements tra- and civil courts, neuroscientific evidence (N. Farahany, personal communication), ditional social science perspectives but that has been introduced to support a party’s suggest that neuroscientists may be called also may be, in some contexts, more objective legal claim as well as to argue its irrelevance upon with increasing frequency — and with and powerful. or invalidity (by the opposing party)4–6 implications and consequences yet unknown Not surprisingly, some substantial (N. Farahany, personal communication). — to lend their expertise to matters of fears accompany that hope. In our collec- That evidence comes sometimes in the form legal import. tive experience at the neuroscience–law 730 | OCTOBER 2013 | VOLUME 14 www.nature.com/reviews/neuro Electronic copy© 2013 available Macmillan Publishersat: http Limited.://ssrn.com All rights reserved/abstract=2432469 PERSPECTIVES 1,200 not party to a lawsuit but who nonetheless believe they have information or perspec- tives that the Court should consider when deciding the case. For instance, in the past 1,000 decade, amicus briefs involving neuroscien- tists were filed in three prominent Supreme Court cases regarding criminal punishments 47–49 800 of juvenile offenders . The fourth way to become involved in litigation is as an expert witness50. If the judge in the case decides that a proposed 600 witness is qualified (on the basis of special- ized knowledge that has typically been acquired through education, training and experience) to be designated as an expert 400 witness, then that person can offer opinions Cumulative number of publications about, or interpretations of, the facts in the case — something that fact witnesses are 200 ordinarily not allowed to do. In the remain- der of this article, we focus on issues that neuroscientists might encounter when acting as an expert witness. 0 Legal and scientific cultures 1984 1986 1988 1990 1992 1994 1996 1998 2000 2002 2004 2006 2008 2010 2012 Suppose that, after much discussion, review Year and reflection, a neuroscientist agrees to be Figure 1 | Cumulative growth in the number of ‘law and neuroscience’Nature Reviews publications. | Neuroscience The figure an expert witness. The neuroscientist’s expe-
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