Neurolaw: Exploring the Role of Neuroscience in the Legal Process Presented by: Kiren Rockenstein Clear Law Institute | 4601 N. Fairfax Dr., Ste 1200 | Arlington | VA | 22203 www.clearlawinstitute.com Questions? Please call us at 703-372-0550 or email us at [email protected] All-Access Membership Program ● Earn continuing education credit (CLE, CPE, SHRM, HRCI, etc.) in all states at no additional cost ● Access courses on a computer, tablet, or smartphone ● Access more than 75 live webinars each month ● Access more than 750 on-demand courses Register within 7 days after the webinar using promo code “7member” to receive a $200 discount off the $799 base price. Learn more and register here: http://clearlawinstitute.com/member Clear Law Institute, © 2018 NEUROLAW The Role of Neuroscience in the Legal Process Kiren Rockenstein, Ph.D., J.D www.ClearLawInstitute.com (703) 372-0550 Clear Law Institute, © 2018 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. www.ClearLawInstitute.com (703) 372-0550 Clear Law Institute, © 2018 • 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 www.ClearLawInstitute.com (703) 372-0550 Clear Law Institute, © 2018 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 www.ClearLawInstitute.com (703) 372-0550 Clear Law Institute, © 2018 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. www.ClearLawInstitute.com (703) 372-0550 Clear Law Institute, © 2018 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. www.ClearLawInstitute.com (703) 372-0550 Clear Law Institute, © 2018 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. www.ClearLawInstitute.com (703) 372-0550 Clear Law Institute, © 2018 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 www.ClearLawInstitute.com (703) 372-0550 Clear Law Institute, © 2018 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