For several years now, since reading the fascinating case out of India, wherein a woman was convicted of murder via fMRI (functional MRI) evidence, we have remained riveted on this relatively new neuro-imaging tool as it relates to courtroom application.
Below we bring you up to date on the use of fMRIs in US courtrooms and the arguments for its use in a legal venue.
fMRI Use in the courtroom:
Neuroimaging evidence is a complex topic, and an important one to understand, considering how it could potentially alter the way cases involving the NGRI plea are tried. As demonstrated by the cases of Dugan and Hinckley, the legal system must now decide how to evaluate the potential neuroimaging offers. Full article (starts on page 20)
In support of fMRIs in the courtroom:
One of the best arguments for continued research into the application of fMRIs (functional MRIs) in the courtroom comes from Sunaina Rajani, in the Kennedy School Review, (a Harvard Kennedy School student publication), October 2016:
Objective Criteria of Criminal Responsibility
Robert Proctor, clinical instructor at the Harvard Law School’s Criminal Justice Institute, says that “expert opinion is often presented under a veneer of objectivity.” Norms, implicit biases, and lack of neuroscientific knowledge affect determination of criminal culpability, thereby increasing the chance of human error. Not only does this bias shape judges’ evidentiary calls but also their statutory interpretations. Often an expert’s evaluation entails a review of the defendant’s medical records, an interview of the defendant, and, if the defendant is lucky, essential interviews with witnesses and family members. This evaluation, too, is ultimately subjective but could be enhanced by neuroscience.
In jury trials, determination of insanity remains a subjective conclusion that a jury may or may not accept. The question, then, is whether neuroscientific advances will be useful in the courtroom. Proctor adds, that we can help improve criminal responsibility analysis by “applying universally accepted scientific sources and methods of analyzing and interpreting the science of mental disease and defect” to ultimately will ensure fair access to justice in our criminal justice system.
In the neuroscientific sphere, fMRI studies have developed a robust composite of average brain activity that can be compared to a defendant’s state of mind. In doing so, courts might be able to assess capacity, impulsivity, and fear management through a more objective lens. For example, when one experiences fear, scientists can assess to what degree can one generally ‘distinguish right from wrong’ by comparing brain activity. Moreover, recent brain imaging techniques can assess impaired EF and other cognitive abilities, thereby improving a jury’s overall evaluation of the defendant’s ability to distinguish right from wrong.
It is important these neurotechnologies are applied not only in individual courts, but uniformly throughout the justice system. Depending on the justice system’s level of neuroscientific awareness and the court’s standards, judicial interpretations vary. Unfairly, similarly-situated defendants may receive different outcomes, especially in terms of sentencing. Setting standards using awareness of neuroscientific advances could ultimately help reduce these disparities and better tailor sentencing outcomes to minimize recidivism.
Also in favor of fMRIs in the courtroom but from the perspective of mentally ill defendants is this well thought out piece from the Center For Law and Science
Published: June 5, 2015
One of the many obstacles facing juries throughout the history of the legal system has been the question of expert testimony. It has long been the practice of both prosecution and defense to hire professionals from any field to testify in hopes of tilting the case in favor of their client. However, deciding whether evidence presented by these individuals is actually “expert” frequently proves challenging. In the case of determining whether a defendant has a mental illness, juries have historically had to rely on the often-vague characterizations found in the DSM-IV and “expert” psychiatrists to interpret them.
Fortunately, breakthroughs in fMRI scanning may turn the tables on this highly subjective system and give juries something much more concrete to use. Over the past decade, many mental illnesses have been reliably localized by consistently abnormal hemodynamic response in various brain areas. This has not only allowed observers the ability to see general categories of mental disorder, but even to distinguish between various degrees and small variations within an individual disease’s spectrum. The most recent breakthrough happened this past September for Postpartum Depression, while researchers have been progressively better at localizing Bipolar Disorder and Schizophrenia.
It is my hope that an increased use of such fMRI evidence in the courtroom will lend jurors a much clearer view of mental illness, without the need of subjective interpretations from expert testimony. While these middlemen may understand the nature of mental illness, many lay people do not recognize that a mental disorder indicates structural abnormalities in the brain, not simple weakness in character. While our imaging technology may not be advanced enough to locate mental abnormalities in the same way that an X-ray would locate a fractured hip, I think that fMRIs will be continue to increase in accuracy and relevance to major courtroom issues.
However one stands on the ethics or scientific application involved in fMRI use in the courtroom, we cannot deny its inevitability.
BNI Operatives: Situationally aware.
As always, stay safe.