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Brown, Teneille, and Emily Murphy. "Through a Scanner Darkly: Functional Neuroimaging As Evidence of a Criminal Defendant's Past Mental States Emily R

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Brown, Teneille, and Emily Murphy. University of California, Hastings College of the Law UC Hastings Scholarship Repository Faculty Scholarship 2010 Brown, Teneille, and Emily Murphy. "Through a scanner darkly: functional neuroimaging as evidence of a criminal defendant's past mental states Emily R. Murphy UC Hastings College of the Law, [email protected] Teneille R. Brown Follow this and additional works at: https://repository.uchastings.edu/faculty_scholarship Recommended Citation Emily R. Murphy and Teneille R. Brown, Brown, Teneille, and Emily Murphy. "Through a scanner darkly: functional neuroimaging as evidence of a criminal defendant's past mental states, 62 Stan. L. Rev. 1119 (2010). Available at: https://repository.uchastings.edu/faculty_scholarship/1509 This Article is brought to you for free and open access by UC Hastings Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of UC Hastings Scholarship Repository. BROWNMURPHY - 62 STAN. L. REV. 1119.DOC (DO NOT DELETE) 4/13/2010 11:40 AM THROUGH A SCANNER DARKLY: FUNCTIONAL NEUROIMAGING AS EVIDENCE OF A CRIMINAL DEFENDANT’S † PAST MENTAL STATES Teneille Brown* & Emily Murphy** As with phrenology and the polygraph, society is again confronted with a device that the media claims is capable of reading our minds. Functional magnetic resonance imaging (“fMRI”), along with other types of functional brain imaging technologies, is currently being introduced at various stages of a criminal trial as evidence of a defendant’s past mental state. This Article demonstrates that functional brain images should not currently be admitted as evidence into courts for this purpose. Using the analytical framework provided by Federal Rule of Evidence 403 as a threshold to a Daubert/Frye analysis, we demonstrate that, when fMRI methodology is properly understood, brain images are only minimally probative of a defendant’s past mental states and are almost certainly more unfairly prejudicial than probative on balance. Careful and detailed explanation of the underlying science separates this Article from others, which have tended to paint fMRI with a gloss of credibility and certainty for all courtroom-relevant applications. Instead, we argue that this technology may present a particularly strong form of unfair prejudice in addition to its potential to mislead jurors and waste the court’s resources. Finally, since fMRI methodology may one day improve such that its probative value is no longer eclipsed by its extreme potential for unfair prejudice, we offer a nonexhaustive checklist that judges and counsel can use to authenticate functional brain images and assess the weight these images are to be accorded by fact finders. † This Article is dedicated to our incredible friend and mentor Hank Greely. * Teneille R. Brown, J.D., is an Associate Professor of Law at the University of Utah, S.J. Quinney College of Law. While writing this Article she was a fellow with the Stanford Center for Biomedical Ethics, a fellow at the Stanford Law School Center for Law and the Biosciences, and a research fellow with the MacArthur Foundation Law and Neuroscience Project. ** Emily R. Murphy, Ph.D., is a J.D. candidate (2012) at Stanford Law School. While writing this Article she was a fellow in the Stanford Law School Center for Law and Biosciences and a research fellow on the MacArthur Foundation Law and Neuroscience Project. Thanks to the MacArthur-funded Law and Neuroscience Project, Jeff Cooper, David Faigman, Jaime King, Michael Saks, Hank Greely, Stephen Morse, Kathryn Abrams, Walter Sinnott-Armstrong, Ryan Calo, R. Duncan Luce, William Uttal, and Sean Mackey for their thoughtful comments on earlier drafts of this Article. Special thanks to Nita Farahany and Adina Roskies for their in-depth feedback and guidance. 1119 BROWNMURPHY - 62 STAN. L. REV. 1119.DOC (DO NOT DELETE) 4/13/2010 11:40 AM 1120 STANFORD LAW REVIEW [Vol. 62:1119 INTRODUCTION.....................................................................................................1122 I. FUNCTIONAL NEUROIMAGING FOR MENS REA CLAIMS..................................1126 A. What Is Functional Neuroimaging? .........................................................1127 B. Mens Rea Claims......................................................................................1128 C. Present and Anticipated Future Use of Functional Brain Imaging in Courts.......................................................................................................1132 D. The Impact of Neuroscience on the Law: Grounding in Evidence...........1134 II. SCIENTIFIC BACKGROUND: IMAGING BRAIN ACTIVITY AND MENTAL STATES ...........................................................................................................1136 A. The Science of Functional Neuroimaging ................................................1136 1. Overview of older methods................................................................1136 2. Principles of fMRI.............................................................................1138 3. Knowns and unknowns about the BOLD response............................1139 4. The semantics of “activation”...........................................................1141 B. The “Function” of Functional Imaging: Task Dependency and Behavior ...................................................................................................1142 C. Variables in Data Collection, Processing, and Analysis..........................1144 1. Hardware and software: the scanner................................................1144 2. Processing the raw data....................................................................1145 3. Individual differences and reliance on the group data......................1149 a. Something with which to compare: defining “normal”................1149 b. Individual differences are important but are often ignored .........1150 4. Variance: the statistical threshold can be manipulated to affect the results................................................................................................1152 5. Variance: the statistical analysis employed can affect the results ....1153 III. LEGAL ANALYSIS ...........................................................................................1155 A. Admissibility Is Specific to the Evidentiary Purpose................................1155 B. Classifying Functional Brain Images.......................................................1156 C. Relevance .................................................................................................1158 1. Logical inference and relationships between brain data and mental states......................................................................................1160 D. Authentication ..........................................................................................1164 1. The pictorial and silent witness theory of admissibility may accommodate the authentication of fMRI images .............................1165 2. Images must accurately capture the individual’s brain under the same conditions that existed at the time of the crime........................1167 3. The procedure for creating the image should be described in detail to remove any possibility of tampering, error, or distortion...1167 4. Underlying statistical computer programs must demonstrate reliance on irrefutable scientific principles ......................................1169 5. Authentication should be specific to fMRI and distinct from other image types........................................................................................1169 E. Why Daubert, Frye, and FRE 702 Should be Secondary Considerations After Rule 403 ..........................................................................................1174 F. Probative Value........................................................................................1179 1. fMRI has limited probative value unless the question of proper 1120 BROWNMURPHY - 62 STAN. L. REV. 1119.DOC (DO NOT DELETE) 4/13/2010 11:40 AM April 2010] FMRI AS EVIDENCE OF PAST MENTAL STATES 1121 base rates is resolved ........................................................................1179 2. fMRI has limited probative value as it relies on averaged group data and ignores individual differences ............................................1182 3. fMRI will have limited probative value for determining mens rea until we know more about the BOLD response.................................1183 4. fMRI will have limited probative value for the purpose of determining mens rea until we have standardized methods for processing the data and creating the activation map........................1184 5. fMRI will have limited probative value for the purpose of determining mens rea so long as institutional review boards exist and research ethics are followed ......................................................1185 6. fMRI has limited probative value for evaluating past mental states as it measures present reactions to present stimuli...........................1187 7. Multiple steps in the chain of inference severely limit the probative value of fMRI.....................................................................................1188 G. Unfairly Prejudicial Effect and the Role of FRE 403...............................1188 1. fMRI images may be overvalued due to their glossy portrayal of “hard science”..................................................................................1190 2. fMRI gives the unfairly
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