PER Vol. XVII, No.1, Winter 2004

By Brent Garland

Brent Garland is a senior program associate in the program on Scientific Freedom, Responsibility and Law at AAAS, an attorney, and an active member of the Virginia State Bar. His work is centered on the topics of biomedicine, bioethics, biotechnology, and issues arising from the intersection between science and law.

As neuroscience allows for an increasingly sophisticated understanding of the brain, the possible legal and social implications of these advances in knowledge are just beginning to be considered. Neuroscience could raise numerous issues with respect to some of the core constructs of the law, such as competency, free will, and the genesis of violent behavior. The question of how developments in neuroscience might interact with the law led AAAS and the Dana Foundation to convene a meeting on the relationship between neuroscience and law as a way to contribute to the larger public discourse by identifying some central issues and suggesting directions for future efforts.

With members drawn from both the legal and neuroscience communities, the 27 meeting participants discussed a broad range of topics.[i] Some of the key ideas and concerns that arose from the discussion will soon be made available in Neuroscience and the Law: Brain, Mind and the Scales of Justice.[ii] As the editor of that volume, I will introduce a few of the central questions and discuss one area—prediction of behavior—at greater length, in hopes of encouraging others to begin thinking about this still-developing nexus of scientific and legal interest.

The meeting was grounded in a realistic assessment of the advances in neuroscience and their potential for good or ill effects in law, as well as possible societal impacts. Concerns that developments in neuroscience could shatter legal paradigms (say, by undoing the concept of free will) were viewed as unlikely. Developments in neuroscience may well have substantial impact on how the law views people and behavior, but the legal system is generally robust and should be able to assimilate and use new scientific knowledge as it develops.

Among the questions raised at the meeting are:

How will advances in neuroscientific methods for predicting behavior impact the legal system, and how will our society utilize these advances?
What will neuroscience-based lie detection mean for witnesses testifying in court?
How might neuroscientific knowledge put people at risk for discrimination in schools, the workplace, and elsewhere?
What are the benefits and risks of enhancing or modifying one’s brain through pharmacological or other technologies? What roles will the legal system play in the debate about human enhancement?

Predicting Behavior

If a single topic captures the sense of promise and of risk from neuroscience, the ability to predict behavior is it. Courts currently use prediction in plea bargaining, sentencing, and decisions about levels of probation, among other proceedings. In each of these examples, the courts must weigh future risks, including the likelihood of recidivism, against other societal and pragmatic concerns (like prison over-crowding). Accordingly, to the extent that sound science can better inform those predictions, neuroscience really has something of benefit to offer the court system.

Courts, because they must make decisions in a timely fashion, are pressed to use any reasonable tool that might shed additional light on the matter at hand. A risk thus arises that predictive decisions will be based on poor or incomplete science. Additionally, neuroscience-based predictions may be given undue weight as “scientific predictions” when they may still suffer from the typical problems inherent in current risk prediction models: bias in the choosing of people for sample groups; reliability or validity issues in the prediction itself; and the inability of a predictive measure to tell you about the particular individual, but only to tell you, probabilistically, about the group to which the subject belongs.

The use of flawed or incomplete science, or the reliance on scientific predictions beyond what the science is prepared to support, are exactly the kinds of concerns that should be foremost in the public mind when contemplating the potential social impact of predictive technologies or techniques. It is not just in courtrooms that prediction would have an impact, but also in schools, employment, healthcare systems, government investigations, and in other ways that would dwarf usage by the court system. The potential to pigeonhole, to discriminate, and to judge on the basis of test results could result in substantially negative consequences, including the development of a “neuroscientific underclass” denied access to education and other societal benefits on the basis of their neuroscience test results. These concerns parallel the current dialogue around genetics, and some felt the public dialogue around genetics may illuminate some of the promises and pitfalls that could accompany a greater understanding of the brain.[iii]

Though a host of possible predictions might be desirable (e.g., tendency to be honest, willingness to follow authority, etc.), the potential for violence is of particular interest and significance. Prediction of violence has already been the subject of neuroscience research, and it will probably continue to interest science as well as the legal system. It is a predictive measure likely both to have tremendous utility and to carry great risk of misuse; and it is likely to cut both ways in criminal law – in mitigation and in marking someone as being predisposed to violence. While violent behavior will probably never be predicted with complete certainty, the likelihood that techniques will be developed to distinguish those more likely (or even very likely) to react with violence seems great enough that those techniques be considered for future research and public discussion.

An additional concern is pre-emptive uses of prediction of violent behavior (or proneness to violence). Generally, in the legal system, we punish people based on behavior, not on thoughts or “tendencies.” The idea of imposing treatment, or even making decisions regarding employment, based on some test results, and in the absence of prior violent behavior, is deeply disconcerting.

Of course, not all the possible ways in which predictions of “violence-proneness” could be used are negative. For example, in screening people whose jobs require them to confront violence,[iv] and in some circumstances, to respond with violence, such tests may be extremely useful. This might be thought of as identifying “violence-eligible” individuals.

Other areas of interest

As one can see from the example of predicting behavior, neuroscience and law can intersect in numerous ways, posing numerous questions of social import. Other areas discussed included:

the role of neuroscience in determining competencies and legal capacities—for example, the capacity to contract, or to manage one’s business affairs;
the legal and social impact of developing accurate neuroscientific lie detector technologies and techniques;
the use of neuroscience to detect bias, for matters such as jury selection or employment screening;
what neuroscience might tell us about brain death, and how it might change our concept of brain death;
the neuroscience-based enhancement and modification of human capabilities and capacities, including the question of compelling the use of enhancement technologies, the potential for creation of a “neurological underclass,” and the implications of neuroscience-based treatment for addiction;
the risk of discrimination based on neuroscientific test results or other neuroscience information;
the risks of pre-formal uses of neuroscience information by the courts—for example, as part of a pre-charging dialogue between defense counsel and prosecutors, seeking dismissal, reduction of charges, or some other outcome; and
some of the privacy and confidentiality issues surrounding neuroscience data, including the gathering of information collateral to the issue of interest.

Conclusion

A few ideas for future efforts were proposed, along with a few topic areas for further attention. The participants generally supported increased interaction among the legal and neuroscientific disciplines. One useful form would be scientific educational efforts aimed at lawyers and judges. Similarly, neuroscientists could benefit from education in the legal system’s use of science, and the types of uses lawyers foresee for neuroscience. Also, the establishment of a formal body, an ongoing conference, or some other mechanism to allow lawyers and neuroscientists to inform each other’s work could be quite valuable.

In a related vein, the two communities might cooperate in establishing which neuroscience methods are legally useful and scientifically sound. While the law will likely incorporate new neuroscientific knowledge successfully, less clear is how that might best occur. While no detailed plan was developed, several participants proposed considering an accrediting process (for labs and technologies), or some legislatively-driven creation of an approval process.

Even without a specific strategy for determining which neuroscience methods are legally and scientifically sound, several areas of neuroscientific inquiry are likely to yield useful knowledge for legal proceedings, as well as having a societal impact. These are: addiction, enhancement, risk of discrimination, lie detection, and prediction of behavior.

Finally, one lawyer made the case for expanded clinical testing of the neuroscience technologies likely to be used in legal settings:

“[Y]ou should be able to do pretty good controlled clinical trial kinds of experiments to see whether these things work, whether they work for everybody, whether they work for only certain people, whether you can beat it…

You want to put a new drug out, the FDA requires you to go through years and years of detailed clinical trials. There's no such requirement for non-medical technologies. Does anybody have the interest, the funds, and the will to fund serious rigorous clinical testing of these technologies? If the answer is no, I'd suggest the answer should be changed to yes.”

While these sentiments specifically refer to “lie detection” technologies, opinions like it echoed throughout the meeting regarding many of the technologies discussed. The legal community recognized that many of the relevant neuroscience developments are in their earliest stages of exploration, but felt that the scientific community should consider explicit clinical testing of neuroscience tests and technologies for courtroom and other legal uses.[v]

In conclusion, one concern strongly expressed was that both lawyers and neuroscientists be cautious about how the science is used and presented. For the well-being of both fields, the science must be presented, used and discussed in a realistic and accurate fashion – one that reflects both the limitations and the potentials of the science. As one participant put it, it is time for neuroscientists to start identifying and delineating the boundaries of what is known and likely to be knowable – the limits of neuroscience knowledge. In turn, this will enable the legal community to better appreciate what neuroscience can and cannot tell us, and to what uses neuroscience can be put in the service of the law, and of society. Simply because the future is not fully knowable is not reason to delay the dialogue. As one neuroscientist noted, “[We] really do have an obligation to think about things, even if they don’t seem likely right now, because they will come faster than we can possibly believe.”

[i] Four papers were commissioned to serve as the shared intellectual framework upon which to anchor the dialogue. Those papers, as well as the longer version of this report are published together by the Dana Press in Neuroscience and the Law: Brain, Mind, and the Scales of Justice, Brent Garland, ed. (2004). Readers looking to learn more about the conference and the ideas that drove it are encouraged to read the larger volume. The authors of the commissioned papers are: Michael Gazzaniga, a psychologist and the director of the Cognitive Neuroscience Program at Dartmouth College, where he is also the Dean of the faculty; Megan S. Steven, a doctoral candidate in medical sciences at the University of Oxford in England; Laurence Tancredi, a psychiatrist, lawyer and clinical professor of psychiatry at New York University School of Medicine; Henry Greely, a lawyer, the C. Wendell and Edith M. Carlsmith Professor of Law at Stanford School of Law, and co-director of the Program in Genomics, Ethics, and Society at Stanford University; and Stephen Morse, a psychologist, lawyer, and Ferdinand Waleman Hubbell Professor of Law at University of Pennsylvania School of Law.

[ii] The volume will be published by the Dana Press in Fall 2004.

[iii] For readers interested in the parallels with the genetics debate, Henry Greely’s paper in the larger volume is particularly recommended.

[iv] For example, members of the armed forces and law enforcement officers.

[v] In general, early scientific research is often considered more “pure” than “applied” research, in part because the initial exploratory work is often (by necessity) primarily descriptive and explanatory, rather than an attempt to manipulate or alter the phenomenon or mechanism of interest. In the case of neuroscience, many of the applied uses are only beginning to be developed. In the situation at hand, the lawyers were essentially arguing that since we expected the scientific knowledge and the technologies to be used in legal settings, perhaps researchers should conduct some experimentation directly addressing the potential legal uses.

[1] President’s Council on Bioethics, Monitoring Stem Cell Research: A Report of the President’s Council on Bioethics, Washington, D.C. (2004); http://www.bioethics.gov/reports/stemcell/index.html.

[2] ____, Human Cloning and Human Dignity: An Ethical Inquiry, Washington, D.C. (2002); http://www.bioethics.gov/reports/cloningreport/index.html.

[2] “Peterson Poll Rattles Faculty” Modesto Bee 29 Jan 04

[3] “Survey by prof ordered verified” Modesto Bee 31 Jan 04