Law and Neuroscience: Possibilities For Prosecutors

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1 CDAA Prosecutor s Brief Summer 2011 V. 33, No. 4. Law and Neuroscience: Possibilities For Prosecutors Francis X. Shen Neurolaw has started to appear on the legal scene and many criminal defense lawyers see in neuroscience the possibility of reduced culpability, mitigation, and the ratcheting down of incarceration rates. But such possibilities will not materialize if prosecutors can stay ahead of the brain science curve. 1 This commentary provides a brief introduction to neurolaw, and highlights several key features of neuroscientific evidence of which criminal justice professionals should be aware. In 2008, I began work with a MacArthur Foundation initiative called the Law and Neuroscience Project. 2 The Law and Neuroscience Project, which originated at the University of California, Santa Barbara in 2007 and is now headquartered at Vanderbilt University Law School, brings together lawyers and neuroscientists in an effort to better understand how neuroscientific advances might affect criminal adjudication. My work with the Law and Neuroscience Project has led me to a firm belief that brain science can be harnessed by prosecutors to enhance public safety and better respond to the needs of crime victims. But I also see less attractive scenarios on the horizon. If neuroscientific evidence is misused by attorneys and misinterpreted by courts, such evidence may hamper the effective administration of justice. Thus, it is up to those on the frontlines district attorneys, judges, probation and parole officers, law enforcement, and other related professionals to ensure that our growing knowledge base about the brain is used to promote, not threaten, public safety. BASIC BRAIN TERMINOLOGY Discussion at the intersection of neuroscience and law must necessarily begin with some definitions of basic terms. 3 The term neuroscience refers to the study of neurons a special type of nerve cell that is the building block for the human brain. Neuroscience as a field of research has grown rapidly. In 1969, the Society for Neuroscience began with only 500 members. Just forty years later, the Society has a membership of over 40, Just as there are many types of law, so too are there many types of neuroscience. And, just as some branches of law are much more relevant to an individual s practice, so too are some branches of neuroscience more directly relevant to criminal justice. Specifically, when the phrase law and neuroscience is used, it typically refers to the subset of neuroscience called cognitive neuroscience. 1

2 Cognitive neuroscience studies how the brain engages in cognition, i.e. how the brain thinks and processes information. 5 Cognitive neuroscience builds on the field of cognitive psychology, but introduces new methods to study both the structure and the function of the brain. The distinction between studying brain structure and brain function is an important one. Most of the neuroscientific evidence prosecutors will encounter in the future are likely to be some measurement of brain function. The brain functions through a complicated network of chemical and electrical signals. Neuroscientists have developed a number of methods by which this chemical and electrical signaling can be non-invasively measured. 6 The three techniques that prosecutors are likely to confront are: Positron Emission Tomography (PET); functional magnetic resonance imaging (fmri); and electroencephalography (EEG) / quantitative electroencephalography (QEEG). For both PET and fmri brain scans, subjects are placed into a scanner lying down. For a PET scan, the subject is injected with a special tracer that allows tracking of chemical changes in the brain. By tracking these changes, we learn something about how much energy different parts of the person s brain are utilizing. fmri scans, by contrast, do not involve an injection. Rather, fmri uses a very powerful magnet to detect changes in blood-oxygen levels in the brain at different moments. 7 Such measures can be taken while a subject is at rest or while a subject completes a task in the scanner. fmri represents a tremendous leap forward in brain-imaging technology, but it is also much more expensive than PET scanning. In addition to PET and fmri, prosecutors may see EEG or QEEG evidence proffered. Both EEG and QEEG measure electrical activity in the brain. In EEG and QEEG studies, researchers place electrodes on a subject s skull and forehead, and then measure what are called event-related potentials (ERPs). Researchers use this data on the brain s electrical signaling to make assessments of a subject s brain function. As I will discuss later in the article, all three of these methods are vulnerable to important challenges. 8 Before discussing these challenges, however, let us put them into some historical context. HISTORICAL CONTEXT ON BRAIN SCIENCE IN THE COURTROOM Brain-based evidence has a history several decades old. On the civil side, brain-imaging evidence of many sorts has long been a staple of brain injury cases. 9 On the criminal side, at least in the penalty phase, neuroscientific evidence has been seen in California courts for over fifteen years. 10 For instance, in 1996, convicted murderer Clarence Ray, Jr. proffered an EEG and a computer-assisted tomography (CAT) scan in an unsuccessful attempt to mitigate his death penalty sentence. The brain evidence was introduced to 2

3 substantiate the claim that the underlying cause [of Ray s actions] was biological and therefore beyond his control. 11 Ray s attempt to mitigate his sentence with a defense of my-brain-made-me-do-it failed. Similar defense efforts have been met with only mixed success in criminal courts across the country. 12 In some notable cases, however, brain evidence was introduced and used effectively at the guilt phase. John Hinckley, who attempted to assassinate President Ronald Reagan, introduced a computed-tomography (CT) scan to suggest structural abnormalities in his brain. 13 The CT scan may have aided Hinckley s successful insanity plea. A case often cited in the law and neuroscience literature is the 1992 case of Herbert Weinstein. 14 Weinstein was an ad executive who strangled his wife and threw her out of their New York City high-rise apartment to make it appear to be a suicide. Weinstein successfully introduced, for the first time in New York courts, a PET scan to support his insanity defense. 15 And, although Weinstein pled out and served considerable time in jail, the case gained national attention. 16 Zachary Weiss, the prosecutor in the case, commented after the Weinstein case that the age of scanning has dawned in our courtrooms. This is not a technological genie we are going to be able to put back in the bottle. 17 Weiss went on to predict that [d]efense lawyers with visions of acquittal swimming in their head are unlikely to exercise any principled restraint. 18 Of particular interest is Weiss s consultation at the time with prosecutors and defense lawyers in California. Weiss reported that: My sense from the California prosecutors and defense lawyers I have talked to is that fears about the prejudicial effects of this evidence may in practice be misplaced. The general consensus is that this evidence can work wonderfully where there is independent evidence of a history of bizarre behavior and an identifiable organic defect, such as a brain lesion or tumor, or documented mental illness, but that by itself it carries little persuasive weight with juries. Based on the limited sample we have available, these pretty pictures on their own do not seem to be inducing California juries either to acquit murderers in criminal cases or to spare their lives. I suspect that, if admitted in other states, the results will parallel the California experience. 19 How have these pretty pictures of the brain fared in courtrooms? While data do not exist to answer the question systematically, it appears to be the case that Attorney Weiss s prediction was correct: To date, neuroscientific evidence (while effective in some cases) has not led to a sea change in the administration of criminal justice. 20 But, with the advent of new technologies and mountains more research, is such a change around the corner? 3

4 THE RECENT AND RAPID RISE OF NEUROSCIENCE IN COURT All available indicators suggest that neuroscientific evidence is rapidly becoming more prevalent and prominent in criminal proceedings across the country. For instance, just looking at 2010, the federal courts saw their first Daubert hearing 21 on the admissibility of fmri lie detection evidence 22 ; a jury in Florida was in part persuaded by QEEG brain evidence to give a defendant life instead of the death penalty 23 ; and the U.S. Supreme Court made reference to the science of adolescent brain development in its ruling on life without parole for juveniles convicted of non-homicide offenses. 24 Several indices also suggest that neurolaw is upon us. Although the absolute number of neurolaw cases remains small, preliminary assessments by Vanderbilt University law professor Nita Farahany indicate a rapid rate of growth, with twice as many reported cases involving neuroscientific evidence in 2009 as in Legal and scientific scholarship at the intersection of law and the brain sciences has also exploded, with nearly half of all neurolaw scholarship being published in just the past two years. 26 Finally, a number of conferences and symposia around the country have been launched to introduce judges and attorneys to these new developments. What should prosecutors make of these developments? For one thing, they should not dismiss the potential persuasiveness of such evidence. In at least one case, jurors are on record about the influence of brain evidence on their sentencing decision making. In 2010, Florida jurors in a U.S. state court considered whether Grady Nelson, who had earlier been found guilty of murdering his wife and raping a child, should receive the death penalty or life in prison. Interviews with jurors after their rejection of the death sentence revealed that, for some, the proffered neuroscientific evidence was a tipping point. As one juror remarked, the technology really swayed me... After seeing the brain scans, I was convinced this guy had some sort of brain problem 27 Evidence like this may be headed California s way, and, if so, there is a pressing need to be prepared to respond strategically. I use the remainder of this article to outline several possibilities for how such a strategic response might be crafted. For purposes of streamlining the discussion, I focus solely on a situation in which brain evidence is proffered by the defense at the penalty phase. 28 STRATEGY #1: Emphasize That Abnormal Brains Cannot Fully Explain Criminal Behavior The first, and perhaps most fundamental, strategy prosecutors should employ is to emphasize that just because an individual has an abnormal brain does not necessarily mean the individual will behave in a criminal manner. Consider, for instance, the 2010 California case of People v. Martinez. 29 Tommy Martinez was found guilty of rape, robbery, and murder; in the penalty phase, the defense introduced PET scan evidence through the testimony of Dr. Joseph Wu, who suggested that Martinez had brain damage leading to reduced ability to exert self-control. 30 4

5 When faced with situations like this, the defense expert can be challenged with some variation on the fundamental question: So what? Even if the PET scan revealed reduced glucose metabolism in the frontal lobes of the defendant s brain, it can only be said that such abnormality can result in poor judgment can also result in impulsive decision making; [and] could result in decreased control or regulation of emotions or aggression. 31 The verbs can and could are a far cry from must and always. There is much room for speculation. For, it is also the case that a brain such as this could not result in poor judgment about committing rape, could not result in impulsivity to rob, and could not result in an inability to prevent oneself from killing. 32 In light of such uncertainty, defense lawyers will attempt to strengthen the tenuous connection between brain state and behavior. Prosecutors should respond by clarifying to the court that such connections are more speculation that scientific fact. STRATEGY #2: Utilize Cross-Examination to Show That the Lab Is Not the Real World Through aggressive cross-examination of defense expert witnesses, prosecutors can make clear to the court that there is a big difference between laboratory experiments and the real-world, and that this difference matters greatly in limiting the law-relevant inferences that can be drawn from brain scans. To date, none of the neuroscientific methods reviewed earlier in this article can be utilized to monitor brain activity while a research subject is actually in the midst of violent criminal acts. No one has ever been scanned while in the heat of a fight, while plotting a murder, or while deciding whether or not to go through with a sexual assault. 33 Rather, the sorts of tests that neuroscientists use to study concepts such as self control are much more circumscribed. Take, for instance, the Stop Signal Test, which is often used in fmri studies of impulsivity and self-control. 34 In an fmri Stop Signal Test, subjects are placed in the scanner and instructed to press the left hand button when they see a leftarrow on the screen, and to press the right button when they see a right-hand button on the screen. Subjects are then told that if they hear a beep, they should not press either button (even though the arrow will appear on the screen). Researchers use this test to see how well different subjects can control their impulse to press the button. Studies using tasks such as these have advanced our scientific knowledge in important ways, but they remain severely limited in their legal relevance. Why? To be legally relevant, the environment of the laboratory experiment must approximate the real-world criminal context at issue. And, as neuroscientist Emily Murphy and legal scholar Teneille Brown have persuasively argued, the complex situation that gives rise to the criminal behavior will be impossible to replicate, or even approximate, in a lab. 35 This lack of ecological validity (the scientific term of art) severely limits the legal applicability of many neuroscientific studies. For instance, even if it is granted in the 5

6 Martinez case that the defendant s brain damage is generally linked (in the wider research literature) to deficits in self-control on certain laboratory tasks, it does not necessarily follow that such brain abnormalities are linked to a lack of self-control: of the specific sort required to rape, rob, and murder, and at the specific time of the incidents. STRATEGY #3: Use Brain Evidence to Show Future Dangerousness The United States Supreme Court has recognized that mental disability evidence introduced by defendants as a mitigating factor in capital sentencing can be a doubleedged sword in that it also may lead a jury to view the evidence in light of the aggravating factor of future dangerousness. 36 Thus, it follows that if the defense introduces neuroscientific evidence the government should look for ways in which the evidence might support claims of future dangerousness. 37 A significant roadblock in making a future dangerousness argument is that it cuts against the first two strategies just discussed. That is, just as it is difficult to connect current brain functioning to past criminal behavior, so too is it difficult to reliably connect current brain functioning to future behavioral patterns. In the research community, there is ongoing debate about the best methods for predicting violent recidivism, as well as much uncertainty about the value added of specifically neuro-prediction. 38 There is, at present, no evidence that neuroscientific techniques can reliably make better predictions on the likelihood of future violent behavior than existing models. As a trial strategy, however, emphasis can be placed on the possibilities that are raised by abnormalities in parts of the brain that control decision making, self control, and information processing. The theme of the argument might be that if a brain is too broken, and, if the damage is not readily treatable, it may be simply too dangerous to have this person at large because he or she will not be able to control his or her violent behavior. Such arguments, of course, would have to be nuanced given the particular facts of the case and the availability of brain evidence. LOOKING TO THE FUTURE For many areas of law and policy, the potential implications of neuroscience are quite broad. 39 To date, neuroscientific evidence in the criminal context has been used primarily by the defense bar to bolster its claims in both the courtroom and the legislature. In 2011, for instance, the neuroscience of adolescent development featured prominently in California Senate Bill 9 (allowing for a re-sentencing hearing, under certain conditions, for juveniles serving life without parole). 40 The CDAA opposed SB 9, which at the time of this writing is still under consideration in the legislature, and the CDAA should continue to monitor such uses of neuroscience in the policy arena that might thwart efforts to impose and uphold meaningful sentences. 6

7 Prosecutors need not cede neuroscience as a legal tool only for the defense bar, however. Despite the tenor of the bulk of commentaries on the subject, neuroscience is neutral in its implications for defense lawyers and prosecutors. 41 There has never been, and never will be, a neuroscientific test that has immediate legal implications free from interpretation. Rather, much work must be done by lawyers and through expert scientific witnesses to convince a judge and/or jury that the proffered brain evidence is (or is not) reliable, relevant, and supportive of a defendant s case for mitigation. Recognizing that the legal use of neuroscientific evidence relies so heavily on inference and interpretation, prosecutors have an opportunity to harness the power of brain science to both prevent its misuse and to constructively use the science to promote safety and society welfare. Possibilities abound for prosecutors who are willing to research, learn, and engage with the brain sciences. ABOUT THE AUTHOR Associate Director of the MacArthur Foundation Law and Neuroscience Project and Visiting Scholar at Vanderbilt University Law School, Francis X. Shen is a lawyer and scholar working at the intersection of law, neuroscience, politics, and U.S. public policy. He has co-authored two books, and numerous articles and book chapters. Dr. Shen is currently studying how new neuroscientific evidence can be utilized to improve prosecution and victim response; how legislators are integrating neuroscience into policymaking for populations such as veterans and the elderly; and how neuroscience may change civil litigation involving injuries to the brain. Previously, Dr. Shen was a Lecturer and Assistant Director of Undergraduate Studies in the Harvard Government Department. He received his B.A. from the University of Chicago, his J.D. from Harvard Law School, and his Ph.D. in Government and Social Policy from the Harvard University Government Department and the Kennedy School of Government. His graduate studies were supported by the National Science Foundation, and he did his law school clinical work in the Middlesex County District Attorney s Office (Newton District Court). 7

8 1 I believe the California District Attorneys Association is doing a great service to its membership by introducing the topic of law and neuroscience. For more background on law and neuroscience than this brief commentary can provide, see: Jones, Owen D., et al. Brain Imaging for Legal Thinkers: A Guide for the Perplexed (Dec. 20, 2009) Stan. Tech. L. Rev. V. 5; Jones, Owen D., et al. Law and the Brain (coursebook) (accessed Apr. 26, 2011); Brown, Teneille & Emily Murphy. Through A Scanner Darkly: Functional Neuroimaging as Evidence of a Criminal Defendant's Past Mental States (2010) 62 Stan. L. Rev ; Greely, Henry T. & Anthony Wagner. Reference Guide on Neuroscience Federal Judicial Center Reference Manual on Scientific Evidence (3rd. ed., forthcoming); Law and Neuroscience: Current Legal Issues, (Michael Freeman, ed. 2011); Goodenough, Oliver R. & Micaela Tucker. (2010) Law and Cognitive Neuroscience 6 Annu. Rev. Law Soc. Sci. 28.1; Shen, Francis X. & Owen D. Jones. Brain Scans As Evidence: Truths, Proofs, Lies, And Lessons (forthcoming 2011) 62 Mercer L. Rev.; Greely, Henry T. Law and the Revolution of Neuroscience: An Early Look at the Field (2009) 42 Akron L. Rev. 697; Tovino, Stacey. Functional Neuroimaging and the Law: Trends and Directions for Future Scholarship (2007) 7 Am. J. of Bioethics 44. For an updated bibliography of over 550 entries on law and neuroscience, see the Law and Neuroscience Bibliography at (accessed Apr. 26, 2011). 2 For more information on the work of the Law and Neuroscience Project, see (accessed Apr. 26, 2011). 3 For an accessible introduction to neuroscience, see Jones, et. al., supra, Brain Imaging (endnote 1). 4 See Society for Neuroscience. SfN Milestones: 40 Years of Evolution (2009) (accessed Apr. 26, 2011). 5 The most accessible introduction I ve found to cognitive neuroscience is Jamie Ward s The Student s Guide To Cognitive Neuroscience, 2nd. (2010). 6 This is in addition to perhaps more familiar structural scans, such as x-rays of the brain and Computed Tomography (CT), which takes pictures of brain structure. 7 See Jones, et. al., supra, Brain Imaging (endnote 1). For discussion of fmri in the context of lie detection, see Raichle, Marcus E.. An Introduction to Functional Brain Imaging in the Context of Lie Detection Using Imaging to Identify Deceit (2009): All of these techniques have methodological limitations that I will skip over here, but which prosecutors should explore through the use of an expert witness. For fmri, the place to start is Jones, et. al., supra, Brain Imaging (endnote 1); and Brown & Murphy, supra, Through a Scanner Darkly (endnote 1). 9 The term neurolaw first appeared in print in the civil context, and by the early 1990s, a publication called The Neurolaw Letter was circulating amongst personal injury lawyers and medical professionals. The Brain Injury Association of America has been sponsoring conferences for over two decades to bring lawyers up to speed on developments in brain science. For more on The Neurolaw Letter, see and for more on the Brain Injury Association of America, see (accessed Apr. 26, 2011). 8

9 10 See e.g., People v. Ray (1996) 13 Cal.4th 313, 332; People v. Crittenden (1994) 9 Cal.4th 83; People v. Musselwhite (1998) 17 Cal. 4th People v. Ray, supra, 13 Cal.4th at Snead, O. Carter. Neuroimaging and the Complexity of Capital Punishment (Feb. 27, 2007) 82 N.Y.U. L. Rev Snead, supra, at See United States v. Hinckley (D.C. Cir. 1981) 525 F. Supp People. v. Weinstein (N.Y. 1992) 156 Misc.2d 34; 591 N.Y.S.2d Rojas-Burke, J. PET Scans Advance as Tools in Insanity Defense (1993) 34 J. Nuclear Med. 1: 13N 26N. 16 A special Brain Damage and Legal Responsibility issue of 1 Seminars in Clinical Neuropsychiatry (July 1996) 3 provides the best recounting of the Weinstein case, from multiple parties involved. [Out of print, but on file with author Shen.] 17 Weiss, Zachary. The Legal Admissibility of Positron Emission Tomography Scans in Criminal Cases: People v. Spyder Cystkopf [pseudonym for Herbert Weinstein] (1996) 1 Seminars in Clinical Neuropsychiatry 3: , 209 [on file with author Shen]. 18 Id. at Id. at Law professor Stephen Morse has written a number of commentaries explaining why, despite the advent of cognitive neuroscience, traditional conceptions of legal responsibility still hold sway. See: Morse, Stephen J. Determinism and the Death of Folk Psychology: Two Challenges to Responsibility from Neuroscience (2008) 9 Minn. J.L. Sci. & Tech. 1:1 36, and Symposium: The Mind of a Child: The Relationship between Brain Development, Cognitive Functioning, and Accountability Under the Law: Brain Overclaim Syndrome and Criminal Responsibility: A Diagnostic Note (2006) 3 Ohio St. J. Crim. L Daubert v. Merrell Dow Pharmaceuticals (1993) 509 U.S United States v. Semrau (U.S. Dist. Ct. W. Dist. of TN 2010) No [motion on file with author Shen]. 23 State v. Nelson (11th FL Cir.Ct 2010) No. F [motion on file with author Shen]. 24 Graham v. Florida (2010) 560 US. [130 S.Ct. 2011; 176 L.Ed.2d 825]. 25 Farahany, Nita A. An Empirical Study of Brains and Genes in U.S. Criminal Law [on file with author Farahany, 2011]. 26 Shen, Francis X. The Law and Neuroscience Bibliography: Navigating The Emerging Field of Neurolaw (forthcoming 2011) 38 Int l. J. Leg. Inform. 27 Ovalle, David. Novel defense helps spare perpetrator of grisly murder (Dec. 12, 2010) Miami Herald (accessed Apr. 28, 2011). 28 Thus, I do not review the important Kelly-Frye evidentiary issues. For more on the admissibility of neuroscientific evidence, see: Greely, supra, Reference Guide (endnote 1); MacArthur Primer on Law & Neuroscience (Stephen J. Morse & Adina L. Roskies, eds.) (forthcoming); Brown & Murphy, supra, Through a Scanner Darkly (endnote 1); Schauer, Frederick. Can Bad Science Be Good Evidence? Lie Detection, Neuroscience and the Mistaken Conflation of Legal and Scientific Norms (2010) 95 Cornell L. Rev People v. Martinez (2010) 47 Cal.4th

10 30 Such evidence did not mitigate the death penalty, perhaps due in part to the prosecution s rebuttal of Wu s testimony. The government called a neurologist who challenged (1) Dr. Wu s interpretation of the brain scan; (2) Dr. Wu s theory of the causes of the defendant s brain damage, and (3) the reliability of PET scans as a predictor of an individual s behavior. Martinez, supra, 47 Cal.4th at Id. at 935 (emphasis added). 32 Also vexing is the application of group-based neuroscientific studies to individual-level adjudication. As David Faigman has put it, while science attempts to discover the universals hiding among the particulars, trial courts attempt to discover the particulars hiding among the universals. Thus, even if a certain brain activation pattern is, on average in a certain group, linked to certain types of behavioral deficits, it does not necessarily follow that the defendant s similar brain activation pattern will lead to the same behavioral outcomes. For detailed discussion of this issue, see: Faigman, David L. Evidentiary Incommensurability: A Preliminary Exploration of the Problem of Reasoning From General Scientific Data to Individualized Legal Decision- Making (2010) 75 Brooklyn L. Rev. 1137, and Legal Alchemy: The Use and Misuse of Science in the Law (remarks at Yale Symposium Oct. 12, 1999) reprinted (2000) 2 Yale Symp. L. & Tech A related, though distinct, issue is the timing of the neuroscience exams. Tests are typically conducted well after the criminal act, and it is unclear how probative such a test can be for uncovering a prior mental state. See discussion in Brown & Murphy, supra, Through a Scanner Darkly at 1187 (endnote 1). 34 Interested readers can see for themselves what this test is like at: (accessed Apr. 26, 2011). 35 Brown & Murphy, supra, Through a Scanner Darkly at 1186 (endnote 1). 36 Penry v. Lynaugh (1989) 492 U.S. 302, 324 (the defendant s evidence of mental retardation may diminish his blameworthiness for his crime even as it indicates that there is a probability that he will be dangerous in the future. ) 37 For more on future dangerousness, see Snead, supra, Neuroimaging and the Complexity of Capital Punishment (endnote 12); Lamparello, Adam. Using Cognitive Neuroscience As a Basis Upon Which To Accurately Predict Future Dangerousness (2010) 42 Colum. Hum. Rts. L. Rev For discussion of neuroprediction, see: Nadelhoffer, Thomas, et al. Neuroprediction, Violence, and the Law: Setting the Stage Neuroethics (2010) DOI: /s z. 39 See resources listed in endnote California Senate Committee on Public Safety, Bill Analysis, SB-9 (April 5, 2011), Senator Yee. 41 For instance, one future possibility is that neuroscience offers us more effective ways to communicate the long-lasting and often devastating effects of crime on the brains of crime victims. It is too early to know where research on victims brains will lead. However, victim impact statements, changes in public policy, or re-assessment of the benefits of incarceration (i.e. to prevent the anguish experienced by victims and their families) are at least several possible routes by which such evidence might affect the design and operation of the criminal justice system. 10

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