Wednesday, March 30, 2011

Neuroscience may be reshaping the legal system

There have been an increasing number of research articles on the impact of neuroscience and the law, covering a range of topics from witness reliability to judicial impartiality, and even questioning the notion of guilt - it's a fascinating topic.

Our legal system is largely based on a very simplistic set of assumptions, all of which are being called into question with new discoveries that reveal the amazing complexity of human consciousness and the interplay of factors that shape a seemingly simple event.

Here is a collection of papers - all of which are open access - from the Social Science Research Network. I'll post the complete abstracts, follow the links to download the whole article.
Neuroscientific Challenges to Retributivism

Michael S. Pardo
University of Alabama School of Law

Dennis Patterson
European University Institute; Rutgers University School of Law, Camden; Swansea University School of Law

THE FUTURE OF PUNISHMENT, Thomas Nadelhoffer, ed., Oxford University Press, Forthcoming; U of Alabama Public Law Research Paper No. 1783823

We examine two recent challenges to retribution-based justifications for criminal punishment based on neuroscientific evidence. The first seeks to undermine retributivism because of the brain activity of subjects engaged in punishment decisions for retributive (as opposed to consequentialist) reasons. This challenge proceeds by linking retributivism with deontological moral theories and the brain activity correlated with deontological moral judgments. The second challenge seeks to undermine retributivism by exposing, through neuroscientific information, the purportedly implausible foundation on which retributivism depends: one based on free will and folk psychology.

We conclude that neither challenge succeeds. The first challenge fails, in part, because the brain activity of punishers does not provide the appropriate criteria for whether judgments regarding criminal punishment are justified or correct. Moreover, retributivism does not necessarily depend on the success or failure of any particular moral theory. The second challenge fails because neuroscience does not undermine the conceptions of free will or folk psychology on which retributivism depends. Along the way, we point out a number of faulty inferences and problematic assumptions and presuppositions involved in these challenges to retributivism.

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The Scientific Impossibility of Plausibility

Rory D. Bahadur
Washburn University - School of Law

March 14, 2011

Nebraska Law Review, Vol. 90, 2011

In Swierkiewicz, in 2002 the Supreme Court reiterated that heightened pleading standards could be achieved only through Congressional action or via the Rules Enabling Act but not by judicial interpretation. Yet, in 2007 and 2009 in the Twombly and Iqbal decisions respectively the Supreme Court announced that the allegations in a civil complaint had to be plausible in order to survive a motion to dismiss. As a result, the Supreme Court goes to great judicial efforts to assure plausibility is not a heightened pleading standard and that it is consistent with the pleading standard reaffirmed in Swierkiewicz. However, a careful comparison of the pleadings in the Swierkiewicz decision with the plausibility standard clearly establishes that plausibility entails impermissible, heightened pleading standards. The Supreme Court also assures that plausibility analysis is not probability analysis but it is obvious that plausibility determinations are in fact Bayesian probability analyses. Because Bayesian probability analysis involves incorporation of new data in assessing an event’s plausibility based on that event’s previously established relationships with other observed events, plausibility analysis is suitable for post-discovery motions such as summary judgment but it is wholly unsuited for the pleading stage of litigation. The plausibility standard therefore represents a significant normative shift in the Supreme Court’s jurisprudence. The first prong of the plausibility test, which involves separating law from fact, is also widely acknowledged as an impossible feat. Plausibility, stripped of the raiment of meaningless and unsustainable judicial descriptions, is also indistinguishable from a constitutionally prohibited, judicial credibility determination. Finally, plausibility wreaks havoc on fundamental tenets of statutory interpretation because it results in a nonsensical, overlapping, functional amalgam of Federal Rules of Civil Procedure 8, 9(b), 11 and 12. Despite the aforementioned structural defects, recent scholarship attempts to salvage the plausibility standard by equating it with empathic judging but modern neuro-scientific research dispels this view and demonstrates empathic capacity in human beings is bio-genetically biased based on race as a result of evolutionary strategies for survival. Because it is so unsupportable it may be that plausibility is a wholly imagined procedural substitute for the following three frightening substantive possibilities the Court needed to dodge in Iqbal at all costs: Korematsu is still good law; the federal courts are inept at dealing with matters of war; and the Constitution cannot realistically apply to all situations involving national security.
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Brain Imaging and Courtroom Deception

Rebecca Dresser
Washington University School of Law in St. Louis

Hastings Center Report , Vol. 40, No. 6 p. 7, 2010
Washington University in St. Louis Legal Studies Research Paper No. 10-12-04

Scientists have developed new approaches to lie detection that use a brain scanning technique called functional magnetic resonance imaging (fMRI) to evaluate whether someone is lying. Enthusiasts hope that courts will be more receptive to fMRI lie detection techniques than they have been to polygraph tests. But two recent court decisions - United States v. Semrau and Wilson v. Corestaff Services - suggest that these techniques are far from ready for courtroom use.
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Change Blindness Can Cause Mistaken Eyewitness Identification

Kally J. Nelson
University of California, Irvine - Department of Psychology and Social Behavior; Victoria University of Wellington

Cara Laney
University of Leicester

Nicci Bowman-Fowler
University of California, Irvine

Eric D. Knowles
University of California, Irvine - Department of Psychology and Social Behavior

Deborah Davis
University of Nevada, Reno

Elizabeth F. Loftus
University of California, Irvine - Department of Psychology and Social Behavior; University of California, Irvine School of Law

Legal and Criminological Psychology, Vol. 16, pp. 62-74, 2011
UC Irvine School of Law Research Paper No. 2011-09

The current study investigated the effects of change blindness and crime severity on eyewitness identification accuracy. This research, involving 717 subjects, examined change blindness during a simulated criminal act and its effects on subjects’ accuracy for identifying the perpetrator in a photospread. Subjects who viewed videos designed to induce change blindness were more likely to falsely identify the innocent actor relative to those who viewed control videos. Crime severity did not influence detection of change; however, it did have an effect on eyewitness accuracy. Subjects who viewed a more severe crime ($500 theft) made fewer errors in perpetrator identification than those who viewed a less severe crime ($5 theft). This research has theoretical implications for our understanding of change blindness and practical implications for the real-world problem of faulty eyewitness testimony.
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Sorting Guilty Minds

Francis X. Shen
Vanderbilt Law School

Morris B. Hoffman
Second Judicial District (Denver), State of Colorado

Owen D. Jones
Vanderbilt University - Law School & Department of Biological Sciences

Joshua D. Greene
Harvard University, Department of Psychology

Rene Marois
Vanderbilt University - Department of Psychology

New York University Law Review, Vol. 86, 2011
Vanderbilt Public Law Research Paper No. 11-3

Punishable guilt requires that bad thoughts accompany bad acts. For this reason, we regularly ask jurors to infer the past mental state of a person they do not know as he acted in ways they did not see. Although this is difficult enough, the heavily influential Model Penal Code (MPC) demands even more. It requires that jurors sort defendants’ mental states into one of four specific categories, which in turn can define the nature of both the crime and the punishment.

The MPC therefore assumes that average people either naturally do – or at least can, when instructed – sort mental states into these four categories with reasonable accuracy. It also assumes that average people will rank order these categories of mental state, by increasing amount of punishment, in the same sequence that the MPC prescribes.

Remarkably, the MPC – now turning 50 – has escaped the scrutiny of comprehensive empirical research on the accuracy of these and other assumptions that underlie its culpability architecture. The new studies reported here tested the validity of certain key MPC assumptions

The findings demonstrate that most of the critical mens rea assumptions embedded in the MPC are in fact accurate as a behavioral matter. This adds new and important empirical power to the defenders of the MPC approach. But the results are not entirely favorable. Our subjects routinely failed – across a variety of conditions – to distinguish between knowing conduct and reckless conduct. This can have significant consequences for some types of crimes, especially homicide.
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Brain Scans as Evidence: Truths, Proofs, Lies, and Lessons

Francis X. Shen
Vanderbilt Law School

Owen D. Jones
Vanderbilt University - Law School & Department of Biological Sciences

Mercer Law Review, Vol. 62, 2011
Vanderbilt Public Law Research Paper No. 11-2

This contribution to the Brain Sciences in the Courtroom Symposium identifies and discusses issues important to admissibility determinations when courts confront brain-scan evidence. Through the vehicle of the landmark 2010 federal criminal trial U.S. v. Semrau (which considered, for the first time, the admissibility of brain scans for lie detection purposes) this article highlights critical evidentiary issues involving: 1) experimental design; 2) ecological and external validity; 3) subject compliance with researcher instructions; 4) false positives; and 5) drawing inferences about individuals from group data. The article’s lessons are broadly applicable to the new wave of neurolaw cases now being seen in U.S. courts.
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Neuroscience and Ideology: Why Science Can Never Supply a Complete Answer for Adolescent Immaturity

June Carbone
University of Missouri at Kansas City School of Law

LAW & NEUROSCIENCE, CURRENT LEGAL ISSUES, Chapter 13, Michael Freeman ed., Oxford University Press, 2010

This paper argues that to resolve the issues about the role of neuroscience, we need to question the framework in which it arises. The increasing complexity of scientific determinations raises issues of institutional capacity. Recognizing innovations in the science of adolescent development may change not so much our view of adolescence as the calculus underlying institutional functions.

Consider the issue of the juvenile death penalty or a life sentence for a crime committed by a fifteen-year-old. The fact that adolescent reasoning has not yet matured may or may not make the sentence cruel. But the ability to determine whether a particular fifteen-year old is capable of reasoned deliberation may be a more difficult task than judging whether fifteen-year-olds as a group have such capacity. Abolishing the juvenile death penalty may be the right answer not so much because adolescent decision-making is necessarily flawed, but because deciding whether it is in individual cases is impossible. At the same time, such a decision should not be resolved, in any absolute sense, on the basis of neuroscience findings. Instead, they can be at best a strand in a complex decision that situates the idea of justice, rather than cognitive capacity, in an appropriate societal framework.

To consider the appropriate construction of such frameworks, this paper describes the promise and limitations of neuroscientific advances, comparing legal decision-making capacity in individual cases versus broader matters of constitutional doctrine or public policy, analyzing recent US Supreme Court decisions on the juvenile death penalty, and assessing the role of neuroscience in the different possible outcomes of that case. The paper concludes that Justice Kennedy’s majority opinion gave the appropriate weight to the sense; it is an element supporting, but not dictating, a conclusion the court reached on broader grounds.
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Incriminating Thoughts

Nita A. Farahany
Vanderbilt Law School

Stanford Law Review, Vol. 64

The neuroscience revolution poses profound challenges to current self-incrimination doctrine and exposes a deep conceptual confusion at the heart of the doctrine. In Schmerber v. California, the Court held that under the Self-Incrimination Clause of the Fifth Amendment, no person shall be compelled to “prove a charge [from] his own mouth,” but a person may be compelled to provide real or physical evidence. This testimonial/physical dichotomy has failed to achieve its intended simplifying purpose. For nearly fifty years scholars and practitioners have lamented its impracticability and its inconsistency with the underlying purpose of the privilege. This article seeks to reframe the debate. It demonstrates through modern applications from neuroscience the need to redefine the taxonomy of evidence subject to the privilege against self-incrimination. Evidence can arise from the identifying characteristics inherent to individuals; it can arise automatically, without conscious processing, through memorialized photographs, papers and memories; or it can arise as uttered responses, both silently and aloud. This spectrum – identifying, automatic, memorialized, and uttered – is more nuanced and more precise than the traditional testimonial/physical dichotomy, and it better reflects the rationale underpinning the privilege against self-incrimination. Neurological evidence, like more traditional evidence, may be located on this spectrum, and thus doctrinal riddles of self-incrimination, both modern and ancient, may be solved.
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Emotional Regulation and Judicial Behavior

Terry A. Maroney
Vanderbilt Law School

California Law Review, Vol. 99, 2011

Judges are human and experience emotion when hearing cases, though the standard account of judging long has denied that fact. Though in the post-Realist era it is possible to acknowledge that judges have emotional reactions to their work, our legal culture continues to insist that a good judge firmly puts them aside. Thus, we expect judges to regulate their emotions, either by preventing emotion’s emergence or by walling off its influence. But judges are given precisely no direction as to how to engage in emotional regulation. This Article proposes a model for judicial emotion regulation that goes beyond a blanket admonition to "put emotion aside." While legal discourse on judicial emotion has been stunted, scientific study of the processes of emotion regulation has been robust. By bringing these literatures together for the first time, the Article reveals that law does nothing to promote intelligent judicial emotion regulation and much to discourage it.

An engagement model for managing judicial emotion promises to reverse this maladaptive pattern. It provides concrete tools with which judges may prepare realistically for emotional situations they necessarily will encounter, respond thoughtfully to emotions they cannot help but feel, and integrate lessons from such emotions into their behavior. Importantly, medicine has begun to pursue just such a program to promote competent emotion regulation by doctors. The engagement model is far superior to all its alternatives. Other regulation strategies, such as avoidance, are fundamentally incompatible with judges’ professional responsibilities. Suppressing the expression and experience of emotion - encouraged by the status quo - is costly and normatively undesirable. Suppression is unrealistic, exacerbates cognitive load, impairs memory, and can paradoxically increase emotion’s influence while rendering that influence less transparent. The judicial engagement model, in contrast, leverages the best of what the psychology of emotion regulation has to offer. It puts a name to what extraordinary judges already are doing well and makes it available to all judges. By setting aside not judicial emotion but, rather, the crude manner in which we have asked judges to manage it, we stand materially to improve the quality of judging.

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