I was searching for something good to read in the New York Times when I stumbled upon an interesting article that was relevant to our NeuroLaw class. Back in October of 2005, Peter Braunstein, committed a bizarre crime in which he dressed up as a firefighter, staged a fire to get into his victim’s apartment, and then tied her up to the bed and sexually molested her. Braunstein’s defense attorney presented PET scans to suggest that Braunstein suffered from undiagnosed paranoid schizophrenia. This application of neuroimaging in the courtroom reminded me of how much technology has progressed and how neuroimaging is beginning to play an integral role in the courtroom. Furthermore, the all encompassing question of whether Braunstein’s disease caused him to commit the crime or whether it was his own intent has yet to be determined.In my own opinion, I think Braunstein is guilty of his actions, whether or not he suffers from schizophrenia. I think that the crime was much too elaborate for someone suffering from a disease. He obviously exhibited some sort of rational reasoning as he thought up the idea of staging of a fire, and then knew that dressing up as a firefighter would grant him access to the victim’s apartment. Such critical thinking ability makes me think twice if Braunstein’s action were really caused by his supposed mental illness. But that is the question; Is Braunstein solely responsible for his actions or will the jury be convinced that he is actually insane? Reference:
Hartocollis, Anemona. “Disease Drove Sex Attack, Defense Says.” New York Times April 30, 2007.
It happens to us all the time: we’re convinced we are correct in a pedestrian argument with a friend, but when we look up the answer, it turns out we were wrong. What causes these false memories, and how is it that we can be so sure of something that is factually incorrect? It turns out that this causal, mechanistic question is harder to answer, but a 2007 Nature News article that details the work of Roberto Cabeza, a neuroscientist at Duke Univeristy, suggests that the difference between recollection and familiarity may be empirically noticeable on fMRI. Cabeza’s work suggests that while false memories may be indistinguishable from true memories for a person, the person’s brain processes these false and true memories in different regions. These results could have a substantial impact in the assessment of eyewitness testimony. Cabeza shows that when subjects were confident in a correct answer, blood flow was increased to the medial temporal lobes. However, when subjects were confident in an incorrect answer, an event that occurred approximately 20% of the time, blood flow was shunted towards the frontoparietal region of the brain. Because previous studies have shown that the human capacity for recollection deteriorates over time but that our sense of familiarity remains intact, Cabeza’s findings may play a crucial role in uncovering accidental lies in eyewitness testimony. I agree that the human mind is fallible, and when numerous studies denoting the lack of accuracy in the human assessment of truth from lie suggest that eyewitness testimony, even with good intentions, can be incorrect and mislead a jury or judge, I find studies like Cabeza’s to be very intriguing. If we could test all of our witnesses to ensure that their recollection of the crime is accurate, and simultaneously discredit the statements that appear to be false memories, we could remove all doubt from the judicial process of witness testimony, right? Theoretically, yes. Currently, no. While I find Cabeza’s findings extremely interesting, I don’t think we should implement fMRI neuroimaging for the purpose of witness testimony assessment just yet because there is currently still confounding data that exists. A type of memory known as “phantom recollection” – where people’s minds create false memories with details from other true memories – also activates the medial temporal lobes. Besides this uncertainty, I find it very impractical that in today’s world, with all of the legal implications and bureaucratic red tape associated with implementation of a controversial technology such as this, that we as a society would allow for every witness to be subject to an fMRI procedure. Until this technology proves to have minimal error and we can find a way to implement it into courtrooms without interfering with witness’s rights, it should not be allowed for the assessment of eyewitness testimony. However, this technology seems very promising, and if it can remove much of the doubt and error of eyewitness testimony, could prove to be a very valuable addition to the field of law.
The Indian legal system has made news by being the first court to convict a suspect of murder based on Champadi Raman Mukundah’s Brain Electrical Oscillations Signature (BEOS) test that detects when experiences are relived. Without being tested by an independent group or published in a respectable scientific journal, this procedure was used which aroused the ire of the neuroscientists, deeming it ‘fascinating’ yet ‘unconscionable.’ Michael E. Gazzaniga, neuroscientist and director of SAGE Center for the Study of the Mind at UC Santa Barbara, said ‘The work is shaky at best.’ Despite the outcries of reputable neuroscientists, Judge S. S. Phansalkar-Joshi wrote a thorough defense of BEOS when he convicted the suspect based on Mukundah’s evidence.
Are there any benefits to society from the death penalty? Upon further investigation, the benefits usually cited for the death penalty don't seem to actually make any difference in society today. For example, it is often claimed that the death penalty is a deterrent to murderers, but many studies have shown that the death penalty is no greater deterrent than prison to murderers. States that do not allow or only very rarely use the death penalty have lower murder rates than the states that use the death penalty most often[1, 2, 3]. It is also much more expensive to sentence criminals to the death penalty rather than life in prison in all states that reported such information[4, 5].
While the death penalty could have benefits for society, those benefits are absent in the current system. And if society is not benefiting, and the criminals are not benefiting from capital punishment, maybe the system should be changed.
What does neuroscience have to say about this? In the past several years, neuroscience has played a larger role in the court system, especially in capital punishment cases[6, 7]. Most lawyers and defendants presenting neuroscience evidence in court are looking for mitigating factors in the brain that may reduce sentencing from death, to life in prison, or possibly even lighter sentencing. But unless the brain abnormality is treatable, should we revoke the tougher sentence for the criminals that are not treatable, and have very little likelyhood of being rehabilitated. Are those with brain abnormalities visible on current neuro-technology any less responsible for their actions than those do not have detectable brain abnormalities?
The practice of law is changing greatly as lawyers and judges continue to view breakthroughs in neuroscience as possibly cures for the problems that are associated with court cases.For instance, neuroscientists have found new and improved ways to detect when someone is lying.We have a greater understanding of what problems can be caused by certain neural abnormalities due to neuroscientific studies.However, many fewer breakthroughs have been made in the possibilities for treatment of these problems.Current treatments involve behavioral counseling and/or the use of medications to control certain brain functions.But, what if scientists did come up with a form of treatment that could cause neural regeneration, which could cure many behavioral problems?How would this treatment be used in the court system?
The problem that arises from such a drug is that it would actually change the brains of the individuals who use it.While we would possibly be able to make a person less violent or less likely to commit a violent crime, we would also be changing other parts of his or her personality.Many of the most successful people in our world have brains that most would consider abnormal.For instance, many professional athletes are much more competitive and aggressive than what is considered normal.Would it be fair to give these people a drug that would take away the competitive edge that makes them great on the field?How would we choose who needs to use the drug?Voluntary use would probably be the best idea.We could trade an amount of jail/therapy time for the use of the drug.Could these criminals be considered competent to make their own decisions on this matter if we know that they have a brain defect? While there is no such drug in existence today, we could conceivably make one, but these questions will be very hard to answer if we ever do.
On June 12, 24-year old Aditi Sharma and her boyfriend Pravin Khandelwal were convicted of the murder of Sharma’s ex-fiancé Udit Bharati. Their trials marked the first time brain scans presented as evidence of a defendant’s knowledge of a crime led to a conviction. The lie detection test, the Brain Electrical Oscillations Signature test, or BEOS, was created by Champadi Raman Mukundan, the former director of the psychology department at the National Institute of Mental Health and Neuro Sciences (NIMHANS) in Bangalore, India. The Indian media praised the use of this technology—the Times of India called BEOS a “forensic tool” the “state police can now bank on…to achieve speedy convictions” and declared “the findings clearly indicated their [Sharma and Bharati’s] involvement in the murders”—but neuroscientists in India and elsewhere were wary.Unlike traditional polygraph tests, which detect lies through indirect means such as heart rate and skin conduction measurements, the BEOS test is meant to directly show brain activity. A suspect is read a series of statements that should only trigger memories in someone who actually took part in the events. For example, Sharma was read the statement “I bought arsenic.” Mukundan claims that experiential memories triggered by such statements can be visualized on brain scans and provide evidence of guilt, but a six-member committee led by the current head of NIMHANS called BEOS “unscientific". Other evidence against Sharma and Khandelwal was used, such as polygraph tests, but they insist they are innocent. Mukundan claims that the BEOS error rate is only 5% but his work has not been independently verified and has never been published in a peer-reviewed journal. Few specifics about his methodology are available and it remains unclear how he determined that error rating and if it is reliable for all suspects. His test depends on the detection of experiential memories, and since children often cannot accurately recall how they received certain information (whether they learned it themselves through experience or whether they were told it) it seems plausible that this test will not be accurate for people with certain mental defects. Exactly how sensitive the test is also needs to be explored. Could someone who has repeatedly imagined killing someone but not actually done it be falsely accused on the basis of this test? What if someone has dreamed of committing a crime? However, the most disturbing thing about the use of this test is not that it might not be 100% accurate- it is that judges who allowed the tests to be used ignored the consensus of experts and used evidence that as nonscientists, they cannot fully understand.
Twelve athletes are donating their brains after their deaths to the Center for the Study of Traumatic Encephalopathy in hopes of furthering research in the long term cognitive impairment of concussions associated with sports such as football, soccer, and boxing. Although chronic traumatic encephalopathy (CTE) has become accepted in the boxing world, it has not received the same level of recognition in among N.F.L. officials, who govern American football, which can easily be deemed the most popular sport in the United States.
The NFL's failure to recognize the harmful effects on the brains of their own athletes is extremely troubling. Football is an integral part of society and is enjoyed by the majority of Americans. However, it is also extremely contact-intensive, and concussions are commonplace, occurring in the high school stadium in a small town to the giant stadium on TV. Unfortunately, reporting such injuries are shunned, as injured players can easily be replaced by others.
We have already seen in class the effects of brain trauma on an individual's judgement and responsibility. Unless we emphasize the safety of our athletes, I believe we face very serious social and legal problems that may be as widespread as our love for football. With more and more evidence connecting brain trauma and detrimental behavioral modifications, will it be possible to take legal action against the NFL for such carelessness and irresponsibility with their athletes' neurological health? Furthermore, would it possible to take legal action against the NFL themselves, should one of these athletes commit a crime? Lastly, because the NFL IS the national authority on football, I believe their irresponsibility in monitoring the neurological health of their athletes affects more than their professional athletes, but the millions of amateur football players as well.
New York Times: 12 Athletes Leaving Brains to Concussion Study
Dr. Silvia Bunge from UC Berkeley is analyzing the prefrontal cortex in teenagers’ actions. After looking specifically at skateboarders who perform tricks that they know are dangerous and outside their realm of skill, Bunge has deduced that even though kids know better they still act irrationally. The prefrontal cortex’s role is indisputably involved in decision-making, and it is shown that it grows considerably as an individual matures. Like any other organ, it can be “exercised” to “make it better.” When it comes to these daring adolescents though, Bunge’s experiments indicate that they cannot stop themselves from acting “because their prefrontal cortex cannot yet respond fast enough.” Other factors, such as socioeconomic background, are introduced, but the heart of the matter arises when these teenagers break the law. What kind of action should be done? Is jail always the best solution? Considering the fact that some kids develop faster than others, at what age do we draw the line? Is it right to just set the bar at 18 without considering all factors? More factors should be taken into account, and each and every delinquent should be treated on a case-by-case basis with particular attention to whether or not the violator is going to break the law again and his or her prefrontal cortex development. The point is: people mature, and if we incarcerate these individuals who cannot help their biological growth, we are essentially exiling an innocent member of society.
Freedman, Wayne. ABC 7 News. 17 October 2008. http://abclocal.go.com/kgo/story?section=news/health&id=6456067