Neuroscientists in court

The Intersection of Ultra-Processed Foods, Neuropsychiatric Disorders, and Neurolaw: Implications for Criminal Justice

Over the last decade there has been increasing interest in the links between the consumption of ultra-processed foods and various neuropsychiatric disorders, aggression, and antisocial behavior. Neurolaw is an interdisciplinary field that seeks to translate the rapid and voluminous advances in brain science into legal decisions and policy. An enhanced understanding of biophysiological mechanisms by which ultra-processed foods influence brain and behavior allows for a historical reexamination of one of forensic neuropsychiatry's most famous cases-The People v. White and its associated 'Twinkie Defense'. Here in this Viewpoint article, we pair original court transcripts with emergent research in neurolaw, including nutritional neuroscience, microbiome sciences (legalome), pre-clinical mechanistic research, and clinical intervention trials. Advances in neuroscience, and related fields such as the microbiome, are challenging basic assumptions in the criminal justice system, including notions of universal free will. Recent dismissals of criminal charges related to auto-brewery syndrome demonstrate that courts are open to advances at the intersection of neuromicrobiology and nutritional neuroscience, including those that relate to criminal intent and diminished capacity. As such, it is our contention that experts in the neurosciences will play an increasing role in shaping research that underpins 21st-century courtroom discourse, policy, and decision-making.

Neuroethics and neurolaw in forensic neuropsychiatry: A guide for clinicians

As neuroscience technologies develop, ethical and legal questions arise regarding their use and societal impact. Neuroethics and neurolaw are growing interdisciplinary fields that address these questions. This review article presents the research agenda of both areas, examines the use and admissibility of neuroscience in expert testimony and legal settings, and discusses ethical issues related to forensic neuropsychiatrists claiming expertise in neuroscience, formulating medical opinions based on neuroscience, and considering its relevance to criminal responsibility. Forensic neuropsychiatrists should be aware of emerging neuroscientific evidence, its utility and limits in rendering diagnoses and explaining behavior, and, before seeking such evidence for legal purposes, its availability and admissibility. When testifying in matters involving neuroscientific evidence, ensuring truthfulness and balance, having sufficient and validated knowledge (including openness with confirming and disconfirming evidence), understanding standards of practice, and drawing relevant and appropriate conclusions remain important.

The effect of neuroscientific evidence on sentencing depends on how one conceives of reasons for incarceration

Neuroscientific evidence is increasingly utilized in criminal legal proceedings, prompting discussions about how such evidence might influence legal decisions. The effect of neuroscientific testimony on legal decisions remains uncertain, with some studies finding no effect, others reporting that neuroscience has a mitigating impact, and some indicating neuroscience evidence has an aggravating effect. The present study attempts to explain these divergent findings by showing that the effect of neuroscience evidence on sentencing interacts with beliefs about the goals of the criminal legal system. Using a between-subjects design, participants (N = 784) were asked to assume different rationales for imprisonment, before receiving neuroscientific evidence about antisocial behavior and its potential relation to the defendant. Participants recommended a sentence for the defendant prior to and after reading the neuroscientific evidence. Participants who were given the rationale of retribution as the primary goal of imprisonment significantly decreased their sentencing recommendations. When the goal of imprisonment was to protect the public from dangerous people, participants provided longer post-testimony sentences. Lastly, when the goal was to rehabilitate wrongdoers, participants also increased sentences from pre to post. Thus, the impact of neuroscientific evidence is not monolithic, but can lead to either mitigated or aggravated sentences by interacting with penal philosophy.

Neuroimaging in criminal trials and the role of psychiatrists expert witnesses: A case study

Various neuroscientific techniques are increasingly being used in criminal courts causing a vivid debate on the way that this kind of techniques will and should be used as scientific evidence. The role of experts in this context is important, since it is them that analyse, present, interpret and communicate the results of these techniques to the judges and the jury. In an attempt to contribute to the discussion about the role of the experts in criminal cases where neuroimaging evidence was introduced, we examined twenty seven cases from the US and Europe. Focusing on the role of experts and their presentation of neuroscientific evidence, we aimed to examine the extent to which neuroimaging data can contribute to the construction of a solid and more objective, "scientifically - based" case. We found that neurobiological information introduced through experts' testimony is generally used in order to demonstrate some physical, organic base of a psychiatric condition, or/and in order to make visible some brain lesion, (structural or functional), susceptible to have affected the capacity to reason and to control one's impulses. While neuroimaging evidence is often presented by the defence as a scientific method able to offer a precise diagnosis of the pathology in question, our case analysis shows that the very same neurobiological evidence can be interpreted in different - sometimes diametrically opposed - ways by defence and State experts. Conflicting testimony about the same empirical evidence goes against the hypothesis of neuroscientific techniques constituting "objective and hard evidence", able to reach solid, scientific and objective conclusions. Frequent conflicts between neuroimaging experts require the courts to deal with the resulting uncertainty. As the law changes with technology, it is necessary for legal professionals to train and be prepared for the new issues they may encounter in light of new developments in neuroscience, so that they become more vigilant as to the interpretation of neuroscientific data.

Biological Evidence Regarding Psychopathy Does Not Affect Mock Jury Sentencing

Research on the biological factors influencing criminal behavior is increasingly being introduced into court, necessitating research on how such evidence is perceived and influences decision makers. Research on how this evidence influences sentencing recommendations is inconclusive. In this study, we focus on biological evidence related to psychopathy, a construct commonly associated with criminal behavior. Approximately 800 community members were presented with a case vignette detailing an individual who is described as having a high level of psychopathic traits. Participants received either psychological information about psychopathy (i.e., no biological evidence), evidence the defendant had genetic risk factors for psychopathy, or written neuroimaging evidence the defendant had brain deficits associated with psychopathy. Participants then recommended a sentence. Overall, recommended sentence lengths did not differ between evidence conditions. These findings add to a growing body of research suggesting that biological evidence may not have as much of an influence on jurors as previously thought.

How Do Legal Experts Cope With Medical Reports and Forensic Evidence? The Experiences, Perceptions, and Narratives of Swiss Judges and Other Legal Experts

Expert scientific knowledge, including medical knowledge, is relevant for the legal profession and can strongly influence rulings and sentencing in criminal law, civil law, and insurance law. The way in which this medical evidence is understood and evaluated thus has an impact both on individuals and on society as a whole. It enters legal procedures in various forms, for example, as expert witness statements and/or as a legal expert's own acquired medical knowledge. On the other hand, a legal expert may be confronted with expert medical opinions that differ in quality or content and thus have to decide which ones to follow. The aim of this qualitative study was to investigate legal experts' perceptions, experiences, and narratives regarding medical knowledge, particularly the skills and general knowledge used in their branch of the legal profession. A total of 51 semi-structured interviews with judges and prosecutors from different courts of law and from the public prosecutor's office in six different German-speaking (Zurich, Luzern, Aagrau, Obwalden, Nidwalden, Zug) and German/French-speaking (Bern) cantons of Switzerland were conducted, coded, and analyzed using Nvivo. We used a comparison thematic approach identifying common and new themes related to the research aims. Our findings suggest that Swiss judges and prosecutors believe that possessing and developing the skills and terminology required for processing medical information is important but complex, and time-consuming for their work. Additionally, several legal experts reported that their understanding of medical evidence was limited or even non-existent. Moreover, the acquisition of skills related to the assessment of medical reports and forensic evidence appeared to be unstructured. Participants reported having no formal instruction in how to evaluate or deal with medical knowledge. The sources they used to answer questions arising appeared to be in part problematic and non-standardized (internet, newspapers, etc.). Medical literature from peer-reviewed journals was used only rarely. The findings from this study suggest that law departments might wish to evaluate whether their graduates are sufficiently equipped with scientific literacy skills and appropriate skills to evaluate medical information for their later careers. At the same time, medical knowledge pertinent to forensics published in local legal journals may be more effective in reaching the legal expert audience than in medical journals.

The charm of structural neuroimaging in insanity evaluations: guidelines to avoid misinterpretation of the findings

Despite the popularity of structural neuroimaging techniques in twenty-first-century research, its results have had limited translational impact in real-world settings, where inferences need to be made at the individual level. Structural neuroimaging methods are now introduced frequently to aid in assessing defendants for insanity in criminal forensic evaluations, with the aim of providing "convergence" of evidence on the mens rea of the defendant. This approach may provide pivotal support for judges' decisions. Although neuroimaging aims to reduce uncertainty and controversies in legal settings and to increase the objectivity of criminal rulings, the application of structural neuroimaging in forensic settings is hampered by cognitive biases in the evaluation of evidence that lead to misinterpretation of the imaging results. It is thus increasingly important to have clear guidelines on the correct ways to apply and interpret neuroimaging evidence. In the current paper, we review the literature concerning structural neuroimaging in court settings with the aim of identifying rules for its correct application and interpretation. These rules, which aim to decrease the risk of biases, focus on the importance of (i) descriptive diagnoses, (ii) anatomo-clinical correlation, (iii) brain plasticity and (iv) avoiding logical fallacies, such as reverse inference. In addition, through the analysis of real forensic cases, we describe errors frequently observed due to incorrect interpretations of imaging. Clear guidelines for both the correct circumstances for introducing neuroimaging and its eventual interpretation are defined.

Three Research Strategies of Neuroscience and the Future of Legal Imaging Evidence

Neuroscientific imaging evidence (NIE) has become an integral part of the criminal justice system in the United States. However, in most legal cases, NIE is submitted and used only to mitigate penalties because the court does not recognize it as substantial evidence, considering its lack of reliability. Nevertheless, we here discuss how neuroscience is expected to improve the use of NIE in the legal system. For this purpose, we classified the efforts of neuroscientists into three research strategies: cognitive subtraction, the data-driven approach, and the brain-manipulation approach. Cognitive subtraction is outdated and problematic; consequently, the court deemed it to be an inadequate approach in terms of legal evidence in 2012. In contrast, the data-driven and brain manipulation approaches, which are state-of-the-art approaches, have overcome the limitations of cognitive subtraction. The data-driven approach brings data science into the field and is benefiting immensely from the development of research platforms that allow automatized collection, analysis, and sharing of data. This broadens the scale of imaging evidence. The brain-manipulation approach uses high-functioning tools that facilitate non-invasive and precise human brain manipulation. These two approaches are expected to have synergistic effects. Neuroscience has strived to improve the evidential reliability of NIE, with considerable success. With the support of cutting-edge technologies, and the progress of these approaches, the evidential status of NIE will be improved and NIE will become an increasingly important part of legal practice.

Integrating Brain Science and Law: Neuroscientific Evidence and Legal Perspectives on Protecting Individual Liberties

Advances in neuroscientific techniques have found increasingly broader applications, including in legal neuroscience (or “neurolaw”), where experts in the brain sciences are called to testify in the courtroom. But does the incursion of neuroscience into the legal sphere constitute a threat to individual liberties? And what legal protections are there against such threats? In this paper, we outline individual rights as they interact with neuroscientific methods. We then proceed to examine the current uses of neuroscientific evidence, and ultimately determine whether the rights of the individual are endangered by such approaches. Based on our analysis, we conclude that while federal evidence rules constitute a substantial hurdle for the use of neuroscientific evidence, more ethical safeguards are needed to protect against future violations of fundamental rights. Finally, we assert that it will be increasingly imperative for the legal and neuroscientific communities to work together to better define the limits, capabilities, and intended direction of neuroscientific methods applicable for use in law.

Don't Ask a Neuroscientist about Phases of the Moon

Ongoing developments in neuroscientific techniques and technologies-such as neuroimaging-offer potential for greater insight into human behavior and have fostered temptation to use these approaches in legal contexts. Neuroscientists are increasingly called on to provide expert testimony, interpret brain images, and thereby inform judges and juries who are tasked with determining the guilt or innocence of an individual. In this essay, we draw attention to the actual capabilities and limitations of currently available assessment neurotechnologies and examine whether neuroscientific evidence presents unique challenges to existing frameworks of evidence law. In particular, we focus on (1) fundamental questions of relevance and admissibility that can and should be posed before the tests afforded in Daubert v. Merrill Dow Pharmaceuticals or Frye v. U.S. are applied and (2) how these considerations fit into the broader contexts of criminal law. We contend that neuroscientific evidence must first be scrutinized more heavily for its relevance, within Daubert and Federal Rule of Evidence 702, to ensure that the right questions are asked of neuroscientists, so as to enable expert interpretation of neuroscientific evidence within the limits of their knowledge and discipline that allows the judge or jury to determine the facts at issue in the case. We use the analogy provided by the Daubert court of an expert on the phases of the moon testifying to an individual's behavior on a particular night to ensure that we are, in fact, asking the neuroscientific expert the appropriate question.

At risk of being risky: The relationship between "brain age" under emotional states and risk preference

Developmental differences regarding decision making are often reported in the absence of emotional stimuli and without context, failing to explain why some individuals are more likely to have a greater inclination toward risk. The current study (N=212; 10-25y) examined the influence of emotional context on underlying functional brain connectivity over development and its impact on risk preference. Using functional imaging data in a neutral brain-state we first identify the "brain age" of a given individual then validate it with an independent measure of cortical thickness. We then show, on average, that "brain age" across the group during the teen years has the propensity to look younger in emotional contexts. Further, we show this phenotype (i.e. a younger brain age in emotional contexts) relates to a group mean difference in risk perception - a pattern exemplified greatest in young-adults (ages 18-21). The results are suggestive of a specified functional brain phenotype that relates to being at "risk to be risky."

Law, Cyborgs, and Technologically Enhanced Brains

As we become more and more enhanced with cyborg technology, significant issues of law and policy are raised. For example, as cyborg devices implanted within the body create a class of people with enhanced motor and computational abilities, how should the law and policy respond when the abilities of such people surpass those of the general population? And what basic human and legal rights should be afforded to people equipped with cyborg technology as they become more machine and less biology? As other issues of importance, if a neuroprosthetic device is accessed by a third party and done to edit one’s memory or to plant a new memory in one’s mind, or even to place an ad for a commercial product in one’s consciousness, should there be a law of cognitive liberty or of “neuro-advertising” that applies? This paper discusses laws and statutes enacted across several jurisdictions which apply to cyborg technologies with a particular emphasis on legal doctrine which relates to neuroprosthetic devices.

The forensic use of behavioral genetics in criminal proceedings: Case of the MAOA-L genotype

The role of behavioral genetic evidence in excusing and mitigating criminal behavior is unclear. Research has suggested that a low activity genotype of the enzyme monoamine oxidase (MAOA-L) may increase the risk for aggressive and antisocial behavior. By examining criminal proceedings in which MAOA-L genotype evidence was introduced, we explored the forensic uses of behavioral genetic science. Westlaw and LexisNexis legal databases were electronically searched for cases from 1995 to 2016 to identify court documents from cases involving the MAOA-L genotype. Evidence of the MAOA-L genotype was included in records from 11 criminal cases (9 U.S. and 2 Italian). In the guilt phase, genotype evidence was ruled admissible in one of two cases, and may have contributed to a conviction on a lesser charge. In the sentencing phase, genotype evidence was admissible in four of five cases, one of which ended with a lesser sentence. Five cases used genotype evidence for post-conviction appeals, two of which resulted in sentence reductions. Even when charges or sentences are reduced it is difficult to gauge the effect of evidence of the MAOA-L genotype. Genotype evidence may lack persuasive effect because the impact of the allele on a particular accused is difficult to establish.

Sciences of the brain: The long road to scientific maturity and to present-day reductionism

When examined in a long-term perspective, brain sciences demonstrate certain conceptual consistencies as well as theoretical oppositions that have lasted for centuries, ever since Ancient Greece. The neurosciences have progressed more on the basis of technological than conceptual advances, and the constant recuperation of new techniques from other sciences have led to a continually reductionist view of the brain and its functions. In a different perspective, if not opposite to the reductionism, are the psychological constructs and those that constitute the functional unity of individuals, which are still mysterious. In fact, the gap between these two approaches has never been larger than it is now. This chapter discusses the enduring nature of some of these problems and their recent consequences.

"Bad genes" & criminal responsibility

The genetics of the accused is trying to break into the courts. To date several candidate genes have been put forward and their links to antisocial behavior have been examined and documented with some consistency. In this paper, we focus on the so called "warrior gene", or the low-activity allele of the MAOA gene, which has been most consistently related to human behavior and specifically to violence and antisocial behavior. In preparing this paper we had two objectives. First, to summarize and analyze the current scientific evidence, in order to gain an in depth understanding of the state of the issue and determine whether a dominant line of generally accepted scientific knowledge in this field can be asserted. Second, to derive conclusions and put forward recommendations related to the use of genetic information, specifically the presence of the low-activity genotype of the MAOA gene, in modulation of criminal responsibility in European and US courts.

Professionalism in court: The neurologist as expert witness

Serving as an expert witness can be a rewarding experience. It affords the neurologist the opportunity to contribute expertise to the legal system's pursuit of justice and benefits the public interest. However, serving as an expert witness without understanding and incorporating relevant professional and specialty guidelines concerning expert witness testimony can place the neurologist at risk. The American Academy of Neurology has established standards governing expert witness testimony and a disciplinary process to respond to complaints of violation of its standards. Increased understanding of and adherence to these qualifications and guidelines, coupled with an awareness of how the legal system differs from clinical practice, will better equip neurologists serving as expert witnesses and minimize their professional risk when doing so.

Functional MRI-based lie detection: scientific and societal challenges

Functional MRI (fMRI)-based lie detection has been marketed as a tool for enhancing personnel selection, strengthening national security and protecting personal reputations, and at least three US courts have been asked to admit the results of lie detection scans as evidence during trials. How well does fMRI-based lie detection perform, and how should the courts, and society more generally, respond? Here, we address various questions — some of which are based on a meta-analysis of published studies — concerning the scientific state of the art in fMRI-based lie detection and its legal status, and discuss broader ethical and societal implications. We close with three general policy recommendations.

The new science of mind and the future of knowledge

Understanding mental processes in biological terms makes available insights from the new science of the mind to explore connections between philosophy, psychology, the social sciences, the humanities, and studies of disorders of mind. In this Perspective we examine how these linkages might be forged and how the new science of the mind might serve as an inspiration for further exploration.