Neurolaw: Exploring the Role of Neuroscience in the Legal Process

Presented by: Kiren Rockenstein

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NEUROLAW The Role of Neuroscience in the Legal Process

Kiren Rockenstein, Ph.D., J.D

NEUROLAW

A field of interdisciplinary study that examines discoveries in neuroscience, particularly those resulting in a better understanding of human behavior, and their impact on legal rules and standards.

• COGNITIVE NEUROSCIENCE • Study of processes that underlie processes of acquiring knowledge and understanding through thought, experience, and the senses. • The impact of cognitive biases

• NEUROBIOLOGY • Neurophysiological differences • fMRI for lie detection • Neuroanatomical differences • Frontal cortex/violence • Neurodevelopmental implications • Incarceration of minors/juveniles • Neurodegenerative conditions • Dementia (and age-related cognitive decline) • Pathophysiological • Tumors in critical regions

• Other legal and ethical issues • The emerging role of technology – “generally accepted”?? • Impact on constitutional rights

Cognitive bias - A mistake in reasoning often occurring as a result of holding onto one's preferences and beliefs (consciously (explicit) or subconsciously (implicit)) regardless of contrary information.

Biases related to memory, reasoning, and decision-making are particularly important in the legal context.

Everyone has their own complement of biases - Parties - Witnesses - including expert witnesses - Jury members - Lawyers - Judges

Parties and Witnesses

False memory A form of misattribution where imagination is mistaken for a memory.

Cross-race effect The tendency for people of one race to have difficulty identifying members of a race other than their own.

Context effect That cognition and memory are dependent on context, such that out- of-context memories are more difficult to retrieve than in-context memories (e.g., recall time and accuracy for a work-related memory will be lower at home, and vice versa). - von Restorff effect – An item that sticks out is more likely to be remembered than other items.

Impact of Expert Witnesses

Confirmation bias The tendency to search for, interpret, focus on, and remember information in a way that confirms one's preconceptions - Ask opposing expert witnesses if they considered alternative hypothesis (delve into their methodology, examine error rates, how will they know if they are wrong?)

Framing effect Drawing different conclusions from the same information, depending on how that information is presented. - Highlight assumptions made by the opposing experts

Jury

Choice-supportive bias Retroactively ascribing one's choices to be more informed than they were when they were made.

Anchoring or ‘focalism’ The tendency to rely too heavily, or "anchor", on one trait or piece of information when making decisions (usually the first piece of information acquired on that subject).

Illusion-of-truth effect That people are more likely to identify as true statements those they have previously heard (even if they cannot consciously remember having heard them), regardless of the actual validity of the statement. In other words, a person is more likely to believe a familiar statement than an unfamiliar one. Courtesy bias The tendency to give an opinion that is more socially correct than one's true opinion, so as to avoid offending anyone.

Lawyers and Judges

Bias blind spot

The tendency to see oneself as less biased than other people, or to be able to identify more cognitive biases in others than in oneself.

MITIGATING THE IMPACT OF BIASES

• Learn to recognize the different biases that may be at play

• Address them head-on • Remove jurors during voir dire • Mention biases specifically? • Tailor trial testimony as appropriate?

• “Use” biases to your benefit • Aristotle's first principle: Well dispose your audience to you and ill dispose them to your enemy • Aristotle's second principle: Maximize your salient points and minimize your weaknesses • Aristotle's third principle: Refresh the memory of your audience frequently. • Aristotle's fourth principle: Execute the required level of emotion.

•  Effective use of opening and closing statements

THE ROLE OF NEUROTECHNOLOGY The current revolution in neuroscience is fundamentally the result of a revolution in tools. Annu. Rev. Criminol. 2019.2:451-471.

Whether in the civil or criminal context, resolution of the legal issues raised often depends upon witness credibility.

The use of neurotechnology to detect lies has captured the popular attention.

The ability to accurately and reliably distinguish when individuals are lying versus telling the truth could profoundly impact the resolution of every almost every issue in litigation.

THE POLYGRAPH

Measures a person's biological responses to determine if they are experiencing a physiological event, such as an increase in blood pressure or heart rate.

Changes in these indicators have been reported to be linked to falsehoods.

However, many other factors can also affect the readings detected by a polygraph machine. For instance, nervousness of any kind could lead to the same change in activity as observed with a lie.

 Measuring peripheral nervous system activity

 Generally INADMISSIBLE

FUNCTIONAL MAGNETIC RESONANCE IMAGING (fMRI)

• Measures brain activity by detecting changes associated with blood flow.

• Based on the fact that cerebral blood flow and neuronal activation are coupled.

• Changes in blood flow (and thereby assumed neuronal activation) in particular regions of the brain have been linked to lying.

United States v. Semrau, 2010 U.S. Dist. LEXIS 143402 • Defendant stood accused of Medicare/Medicaid fraud

• In effort to bolster his credibility, defendant underwent fMRI, conducted by a company commercially marketing fMRI lie detection technology. • Tests were conducted by Dr. Laken, founder and CEO of Cephos Corporation

• Defendant underwent three separate scans and sought to introduce the results in his trial.

• The government submitted a motion in limine to exclude the testimony of Dr. Laken.

USE OF fMRI DATA United States v. Semrau, 2010 U.S. Dist. LEXIS 143402 • Daubert standard - A rule of evidence governing the admissibility of expert witnesses' testimony. • A party may raise a Daubert motion in order to exclude the presentation of unqualified evidence to the jury • The judge is the “gatekeeper”

FACTORS • Whether it can be, and has been, tested; • Whether it has been subjected to peer review and publication; • Whether the known or potential rate of error is acceptable; • Whether the theory or technique employed by the expert is generally accepted in the scientific community; • Whether the research was conducted independent of the particular litigation or dependent on an intention to provide the proposed testimony.

 the proponent of the evidence has the burden of establishing that all of the pertinent admissibility requirements are met by a preponderance of the evidence. www.ClearLawInstitute.com (703) 372-0550 Clear Law Institute, © 2018

(IN)ADMISSIBILITY OF fMRI DATA United States v. Semrau, 2010 U.S. Dist. LEXIS 143402 • Whether it can be and has been tested; • Whether it has been subjected to peer review and publication; • “The court finds that the underlying theories behind fMRI-based lie detection are capable of being tested, and at least in the laboratory setting, have been subjected to some level of testing. It also appears that the theories have been subjected to some peer review and publication, particularly within the last five years, as evidenced by the articles co-authored by Dr. Laken”

• Whether the known or potential rate of error is acceptable; • “the error rate of real-life fMRI-based lie detection is unknown.”

• Whether the theory or technique employed by the expert is generally accepted in the scientific community; • “No doubt in part because of its recent development, fMRI-based lie detection has not yet been accepted by the scientific community… experts in the field are of the opinion that fMRI "is currently not ready to be used in real-world lie detection.”

CONTRACT LAW

Van Middlesworth v. Century Bank & Trust Co. No. 215512, 2000 Mich. App. LEXIS 2369 (Mich. Ct. App. May 5, 2000)

• Disputed land sale contract

• Defendant introduced brain images to prove mental incompetency

• Resulted in a voidable contract

Clinical psychologist – concluded that defendant’s reasoning would have been significantly impaired at the time of contract

Neurologist – MRI revealed evidence of brain shrinkage and hardening of arteries, consistent with dementia

Physician – concluded that defendant suffered from a combination of Alzheimer’s disease and multi-infarct dementia

“He acted like he didn’t know what I was talking about. He acted like he had no idea what he was talking about”

WILLS AND TRUSTS/ ESTATE PLANNING

Early Signs and Symptoms of Alzheimer’s Disease

• Memory loss that disrupts daily life • Challenges in planning or solving problems • Difficulty completing familiar tasks at home, at work or at leisure • Confusion with time or place • Trouble understanding visual images and spatial relationships • New problems with words in speaking or writing

https://www.alz.org/alzheimers-dementia/10_signs

• Deficits in Comprehension/Memory and other symptoms such as paranoia and difficulty in making decisions

• Legal Capacity – potential need for a legal representative/power of attorney

• Know what to look for and be prepared to have difficult conversations with client and/or family members

CRIMINAL LAW

Neuro-evidence, in its various forms, has been used at different stages of the criminal trial process, with varying degrees of success/acceptance at each stage.

COMPENTENCY MENS REA SENTENCING

(In)Voluntariness Mitigation Insanity IAC

Competency

Dusky v. United States, 362 U.S. 402 (1960) – In order to be deemed competent to stand trial, the defendant must have a "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding" and a "rational as well as factual understanding of the proceedings against him.”

People v. Ruiz, 2010 WL 298561 (Cal. 5th. Dist. Ct. App. 2010) Defendant, on trial for murder, was found incompetent to stand trial based on neuropsychological testimony about his brain disorders • Neuropsychological testing • Organic brain-processing deficit that resulted in a severe language disorder •  severe inability to converse, explain, or impart information – critical elements of being able to assist in own defense

Mens Rea

Voluntariness Model Penal Code Section 2.01: Requirement of Voluntary Act; Omission as Basis of Liability; Possession as an Act. (1) A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable.  Introduction of neurobiological evidence has been largely unsuccessful

Premeditation necessary for first degree murder  neurobiological evidence is looked at in the context of other evidence pointing toward premeditation

Insanity  neurobiological evidence has been used to successfully bolster a defense of legal insanity, but very difficult to be persuasive.

Sentencing/Mitigatio n

During this phase, the defense can, are arguably should, raise any issue or fact that may point towards being a mitigating factor.

HOWEVER – beware of “my brain made me do it” arguments

Ineffective Assistance of Counsel Detrich v. Ryan, 619 F.3d 1038 (9th Cir.2010)

• Detrich was sentenced to death after being convicted of murder, kidnapping, and sexual abuse

• Detrich filed a petition for a writ of habeas corpus in federal district court alleging, among other things, that his trial counsel was unconstitutionally ineffective at the penalty phase for failing to investigate and present substantial mitigating evidence including expert neuropsychological testimony

• Court concluded that there was a reasonable probability that Detrich would have received a sentence less than death but for his counsel’s deficient representation

 Consider “catch-22” of neurological evidence

THE DEVELOPING BRAIN

• Neurodevelopmental research into the juvenile brain has indicated that maturation of brain regions associated with impulse control is not complete until the early 20s.

• Roper v. Simmons 543 US 551 (2005) - the Court ruled that standards of decency have evolved so that executing minors is "cruel and unusual punishment" prohibited by the Eighth Amendment.

• Graham v. Florida, 560 U.S. 48 (2010) - Sentencing an individual to life imprisonment without parole for a non-homicide crime committed before the defendant reached the age of 18 violates the Eighth Amendment.

• Miller v. Alabama, 567 U.S. 460 (2012) - The Eighth Amendment prohibits a sentencing scheme that requires life in prison without the possibility of parole for juvenile homicide offenders.

• Researchers (and lawyers) have argued that juveniles have a harder time with self-restraint and conforming to the law. • CONSIDER  neurobiology is universal, however rates of homicide among juveniles differ greatly from country to country www.ClearLawInstitute.com (703) 372-0550 Clear Law Institute, © 2018

CONSTITUTIONAL LAW

FIRST AMENDMENT

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

• The use of fMRI • Invasion of privacy?

FOURTH AMENDMENT

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

• The use of fMRI • Unlawful “search and seizure”? • Invasion of privacy?

FIFTH AMENDMENT

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

• The use of fMRI • Testimonial/communicative evidence? • Real/physical evidence? • Compelled testimony?

FINAL POINTS

• There are practical ways in which cognitive neuroscience can inform legal thinking and decision-making

• The use of neuroscience in its many forms is likely to increase in the legal field – impacted by increased understanding of how the brain works.

• The impact of neuroscience is felt across many different areas of the law.

• Despite the intense attention and hype, there is still some way to go before technology and science becomes “generally accepted”

CONSIDER – what does a better understating of the brain mean for issues like personal privacy?, the justification/ purpose of incarceration?, and what can/cannot a better understating of the brain tell us about human behavior? Does brain injury/impairment now, mean brain injury/impairment then?