It amazes me to think how most of our memories tend to be constructed from our interpretations of various experiences. This past week, I found myself noticing a lot more how we stretch our memories to fit them the way want. Talking to friends about the happenings of a previous night, I cannot help but wonder how many details are construed in order to make the story entertaining. Whatever the reason for construing the memory though – whether conscious or subconscious – some scientists believe they can use fMRI (functional magnetic resonance imaging) to show if a memory is false or not.
Of course, this ability has significant implications for our justice system and eyewitness testimony. According to an article in Nature last year, the medial temporal lobes of the brain shows more activity when someone is recollecting a true memory, whereas the frontoparietal region shows more activity with the recollection of a false memory. Researchers associate this region of the brain with a sense of familiarity, which “is a general feeling that an event has happened in the past, even though you can’t recall the specific details…”
Though I personally feel eyewitness testimony is not nearly as reliable as our current justice system believes it to be, I do not think the use of fMRI to detect false memories is an appropriate method to use right now. The article showed weaknesses with the test, pointing out that phantom recollections – “when your brain provides you with false details appropriated from other memories” – also activate the medial temporal lobes just like a true memory. At most, the experiment highlighted in the article substantiates the need for a decreased dependency on eyewitness testimony.
The irresistible impulse defense is a particularly interesting aspect of the legal system that has pervasive effects on neurolaw and deserves a closer look. Even though he or she is very much aware of right from wrong, it is still possible to be found not guilty because this defense permits a violator to claim temporary insanity. It is, however, necessary to prove that the violator was ill at the time of the act.
“For example, assume that a child has been molested. If the child's mother shoots and kills the suspected molester, the mother could argue that she was so enraged by the violation of her child that she was unable to control her actions. The mother need not have been diagnosed as mentally ill. Rather, she would need to show that she was mentally ill at the time of the shooting, and that the illness impaired her self-control.”
Although few states currently use this defense since the exculpation of John Hinckley after the Reagan assassination attempt, the idea of ever allowing such a defense is preposterous because it essentially allows anger or moments of weakness to suffice as an excuse. This is contradictory because the legal system assumes that humans are rational, logical beings. If we allow temporary insanity, or simply emotions getting the best of us, then where do we draw the line between one criminal offense and another? What about petty theft? A criminal can simply argue that, when stealing food, his hunger got the best of him which led to temporary insanity, resulting in actions he cannot control. Allowing the irresistible impulse defense would open the floodgates of many excuses, rather than legitimate defenses.
Irresistible Impulse. The Free Dictionary. Farlex.
Not too long ago, obtaining images of the brain was something fascinatingly new. Today, using these images in the courtroom to make legal decisions about criminal acts is a new concept – neurolaw or neuroethics. A few years from now, should it be surprising that these same brain scans be used by teachers and hiring agencies to evaluate the capabilities and personalities of their students and new employees?
“Evidence” for immoral judgment caused by brain damage has already been introduced to the courtroom, but how ethical is the subject of scanning a child’s brain, possibly at merely the consent of the parents, to obtain information about a disruptive behavior or neurological disorder? Judy Illes and Thomas Raffin discuss the ethics of neuroscience in light of children in their article called “No Child Left Behind without a Brain Scan? Toward a Pediatric Neuroethics.”
If a child is suffering from dyslexia or a teenager is getting involved in drugs, in the near future will teachers and parents use information from his/her brain to help alleviate these troubles? If so, it will need to be determined how early in a child’s life is too early to start gathering information about “the development of cognitive and behavioral traits in children.” If the child is overly disruptive in a public school class and is abusing Child B, and Child B’s mom complains to the teacher, is it ethical to force the child to have his brain checked out? If so, who should pay for the scan and treatment if necessary – the government?
From a parent’s perspective, it is understandable why early detection of an irregular development pattern in a child is more desirable – problems identified early on have a better chance of getting “repaired” and less of a chance for getting worse. (On the other side, too, it would be an added plus if we could know early on that 2-year-old Jenny will grow up to have the necessary skills to become one heck of a piano player). One way to find out these things, of course, is by neuroimaging. But is it ethical to put a young child through a scanner at the discretion of a parent, or even a doctor? How is this different from using a machine to find out the sex of an unborn baby? In the end, both just tell us what we’ll eventually find out anyway. Illes and Raffin bring up a good point that if something in the early brain scan detects that the child will have a major dysfunctional disorder later on in life, the parents (perhaps unconsciously at first) are likely to see their child differently: “Would you want a scan that provided information afﬁrming your child’s giftedness—or the possibility of a brain disease preventing cognitive development, but for which there is currently no cure?”
With the advent of using neuroscience in the courtroom, it doesn’t seem like it would be all too long before we have to start dealing with the questions and the ethics, too, of neuroscience in the classroom.
The prospect of one day understanding the intricacies of cognitive function is fascinating, but that day is still far away. However, with the advent of techniques such as electroencephalography and fMRI, scientists seem to have gained a foothold in scaling this seemingly insurmountable task. These techniques allow scientists to measure the mental states of individuals based on physiological events in their brains.They could also be a powerful tool in the hands of a legal practitioner, and could influence legal proceedings. In Brent Garland and Paul Glimcher’s paper, Cognitive neuroscience and the law, they discuss the problems with applying these techniques, which are inadequately tested in situations other than the strict experimental conditions maintained in the laboratory. The authors argue that the use these techniques in the court of law, an application which they were not originally intended, poses a serious risk to the legal system. In this respect, the authors encourage neuroscientists to be careful in writing scientific papers that may have unexpected legal ramifications, and to be more active in educating and conversing with the legal community to prevent potential misuses of scientific findings.
Garland, B., and P. Glimcher. 2006. Cognitive neuroscience and the law. Current Opinion in Neurobiology 16:130-134.
How much should judicial policy rely on recent neuroscience discoveries? Unsurprisingly, scientists and lawyers have been eager to take neuroscience out of the laboratory and apply its findings to real life criminal court cases. With the prospect of devising methods determining mental defect in criminal cases, neuroscience can potentially equip our justice system with a new arsenal of tools establishing culpability. However, we should be wary of the fact that our comprehension of the human behavior, and the underlying brain biology responsible for this behavior, is still in its infancy despite the scientific community’s break-neck pace in obtaining data.
This quick proliferation of neuroscience findings is precisely the reason why policy makers should take a cautionary approach in considering neuroscience when deciding and implementing criminal judicial policy.New data on the brain is being churned out almost a daily basis.Take for example an article published by Duke Medicine. In it, Duke researchers believe they have discovered a new molecule in the brain with potential use in “treating memory loss, psychiatric disease and brain development .”While the Duke finding is indeed a credible discovery, we have not the faintest idea of where this research will lead to in the future.Now if certain characteristics of this molecule were initially implicated with a greater susceptibility to criminal behavior, law makers might be tempted to use this information as evidence against defendants when, in fact, more research is needed to elucidate this molecule’s role in the brain.
The hypothetical situation I mentioned above is the sort of trapping I believe law makers should avoid.Neuroscience undoubtedly has a lot to contribute in dealing with criminal court cases; however, this can only be true if our science behind comprehending the brain is interpreted correctly and in the correct context.Our judicial system must always remain vigilant that controversial policy can be made surrounding poorly understood reasoning, such as in the case of the M'Naghten rules.
In order for the legal system to reduce crime there needs to be a reprioritization of the motives behind the system. Studies have shown that increasing the severity of the punishment may not be the best option for protecting society as whole, as it does not make a more effective deterrent in either capital punishment cases (Fagan, 2006; Donahue and Wolfers, 2005; Diamond, 1975), or in non-capitol punishment cases (Briscoe, 2004; Elvik and Christensen, 2007). Many of the modern philosophers in the interface of science and the legal system talk about a need to change the legal system to tailor sentences that will most help the individual criminal, or sentencing based on future recidivism. But in the current state of modern American society, the desire for punishment often outweighs reason. In efforts to reduce crime, legislators rely mostly on emotion and popularity polls rather than scientific and historical evidence and continue to increase the severity of punishment for crimes committed. In such a system, offenders are treated like toxic waste: they are contained for several years, but when they are finally released, they are no better, and often far worse for society as a whole (Curtis and Nygaard, 2008). Aristotle once said (not the most correct translation, but as quoted in the movie Legally Blond) that 'the law is reason, free from passion.' But such a statement could hardly be made about the current state of the United States penal system. It is quite the opposite, our increased desire for punishment, passion without reason, that leads to the overuse of jails and prisons rather than alternative sentencing that may be equally, or even more effective (Curtis and Nygaard, 2008). So the question is, how do we as individuals and as society move past our desire for retribution and revenge to a more thoughtful and logical justice system? References: Donohue, John J. and Wolfers, Justin,Uses and Abuses of Empirical Evidence in the Death Penalty Debate. Stanford Law Review, Vol. 58, December 2005 Available at SSRN: http://ssrn.com/abstract=870312 Jeffrey Fagan, Death and Deterrence Redux: Science, Law and Causal Reasoning on Capital Punishment. Ohio State Journal of Criminal Law 4:255 (2006) Diamond BL., Murder and the death penalty: a case report. Am J Orthopsychiatry. 1975 Jul;45(4):712-22. Suzanne Briscoe, Raising the bar: can increased statutory penalties deter drink-drivers? Accident Analysis & Prevention. Volume 36, Issue 5, September 2004, Pages 919-929 Rune Elvik, and Peter Christensen, The deterrent effect of increasing fixed penalties for traffic offences: The Norwegian experience. Journal of Safety Research Volume 38, Issue 6, 2007, Pages 689-695 Curtis, George C., Nygaard, Richard L., Crime and Punishment: Is "Justice" Good Public Policy? J Am Acad Psychiatry Law 2008 36: 385-387 http://en.wikiquote.org/wiki/Aristotle
This past June, India was the first country to convict someone of a crime based off findings from a controversial test – brain electrical oscillations signature (BEOS) test – used to detect electrical activity in the brain. During the test, the accused wears a cap with 32 electrodes and sits in silence as an investigator reads aloud details of the crime. In theory, if the accused committed the crime, the test will evoke remembrance of the experience, which results in measurable changes in the brain’s electrical oscillation pattern – changes that do not appear if the accused had only heard or witnessed the crime.
Even though an expert committee, headed by National Institute of Mental Health and Neuroscience Director D. Nagaraja, recommended against the use of the BEOS test as evidence in court, the state of Maharashtra went ahead with their conviction of the accused, Aditi Sharma. As I first read about the case in an article from the Times of India, I found myself easily persuaded by the use of the technology as a way to convict criminals. However, as I read on and thought more into the issue, I wonder how we could convict someone of a crime based mainly off a technology that has been proven to misdiagnosis someone five out of a hundred times. Though a relatively small error rate, it still means that at least 5% of our convictions could undeservedly send someone to jail.
In my opinion, courts should wait for more international scientific-backing before they use BEOS tests as evidence. To me, it seems unreasonable to be using evidence based off our brains when we barely even have a foothold towards understanding such a complex system. Looking at this case in India, it seems to me that nowadays, neuroscientists are being pressured further to say more than they are able to. Perhaps, the situation in India is a prime example.