Neuroscience in the Courtroom

I think the New York Times Magazine has the brain on its editorial mind: In the past few weeks, the magazine has run cover stories on autism and siblings (February 18) and, just last week, evolutionary biology and belief in God (March 4). We get the magazine on Saturday (the book review contains a review of a book entitled Oil on the Brain which is about how that particular substance gets form “pump to pipeline”); after a Saturday out (Jim and Charlie in Manhattan, me at the library), I found the magazine under a pile of ads and beheld on the cover a misshapen reddish-orange lump with horned bits flying off it, and the top half of a human head with the tiniest eyes at the bottom. The article’s title, The Trials of Neurolaw: How advances in brain science coul transform our legal system, was set roughly in the center of that mushroom cloudesque-red mass which is, I think, supposed to represent a brain tumor or a cyst. The article, by Jeffrey Rosen, discusses the rising use of neuroscientific evidence in criminal cases: The results of brain-scanning technology—-of functional M.R.I. in particular—are increasingly being used in the courtroom, both as a defense for those accused of crimes and as a means to determined the hidden biases of potential jury members.

“‘Some sort of organic brain defense has become de rigueur in any sort of capital defense,’” forensic psychologist Daniel Martell is quoted as saying. Martell has started a consulting business called Forensic Neuroscience in the wake of his testifying as an expert witness in the trial of an ad executive who was charged with murdering his wife and trying to cover up the crime; the accused was found to have an arachnoid cyst and was convicted on a reduced charge of manslaughter, as “the prosecution seemed to fear that simply exhibiting images of Weinstein’s brain in court would sway the jury.” The NY Times Magazine article also notes how neuroimaging has contributed to making lie detector tests more accurate, and considers what might happen if witnesses could be “compelled to have their brain scanned.”

Rosen highlights the ethical dilemmas that arise when neuroscientific evidence is admitted into the courtroom. (I have highlighted some phrases.)

• “…[S]hould judges and juries really be in the business of defining the normal or properly working brain? And since all behavior is caused by our brains, wouldn’t this mean all behavior could potentially be excused?”
• … [S]keptics [of the use of neuroscientific evidence] fear that the use of brain-scanning technology as a kind of super mind-reading device will threaten our privacy and mental freedom, leading some to call for the legal system to respond with a new concept of ‘cognitive liberty.’”
• “… [L]awyers might even select jurors for different cases based on their different brain-activity patterns. In a complex insider-trading case, for example, perhaps the defense would “like to have a juror making decisions on maximum deliberation and minimum emotion”; in a government entrapment case, emotional reactions might be more appropriate.”
• Should courts be in the business of deciding when to mitigate someone’s criminal responsibility because his brain functions improperly, whether because of age, in-born defects or trauma? As we learn more about criminals’ brains, will we have to redefine our most basic ideas of justice?
• “‘There’s nothing new about the neuroscience ideas of responsibility; it’s just another material, causal explanation of human behavior,” says Stephen J. Morse, professor of law and psychiatry at the University of Pennsylvania. ‘How is this different than the Chicago school of sociology,’ which tried to explain human behavior in terms of environment and social structures? ‘How is it different from genetic explanations or psychological explanations? The only thing different about neuroscience is that we have prettier pictures and it appears more scientific.’”

The NY Times Magazine article does not specifically mention autism. Crime has been a topic here on Autism Vox more than a few times, most recently in the wake of the fatal stabbing of 15-year-old James Alenson by 16-year-old John Odgren on January 19; last week, Odgren pleaded not guilty to the crime. Odgren has Asperger’s Syndrome and speculation about the use of his disability has fueled some heated debate and comments here.

Writes Rosen at the end of the NY Times Magazine article with reference to Stephen Morse:

“…..[N]euroscience itself can never identify the mysterious point at which people should be excused from responsibility for their actions because they are not able, in some sense, to control themselves.” That question, he suggests, is “moral and ultimately legal,” and it must be answered not in laboratories but in courtrooms and legislatures. In other words, we must answer it ourselves.

Just as prenatal testing presents us with some serious moral dilemmas, doe does neuroscientific evidence raise ethical questions that are far, far from easy to answer.

I for one am still puzzling over the connotations of the picture of that big red mass on the cover of the NY Times Magazine.