Through a scanner darkly: the use of fMRI as evidence of mens rea.

• Position: Functional magnetic resonance imaging - Discussion

MR. DE BANATE:

Good evening. Welcome and thank you for coming to the Journal of Law & Health's last speaker series event this year. My name is Fil de Banate [and] with Adam Saurwein, we serve as the editors-in-chief of the Journal. Last week we hosted an event focused on health care policy. Tonight we are pleased to host an event exploring fMRI and its legal significance.

Although [neuroimaging] is still an emerging technology, it has proven to be very consequential in at least one situation. In September 2008, the New York Times reported that a court in India allowed the use of brain scan images in a criminal case, which ultimately led to the conviction of an Indian woman accused of poisoning her fiance. To this day, the Indian woman maintains her innocence. (1) Hank Greely, a bioethicist at Stanford Law School and a colleague of our speakers, commented on the verdict, [characterizing it as] "both interesting and disturbing." (2) He also wrote in the American Journal of Law and Medicine the following:

If brain scans are widely adopted, the legal issues alone are enormous, implicating at least the 1st, 4th, 5th, 6th, 7th and 14th Amendments to the U.S. Constitution. At the same time, the potential benefits to society of such a technology, if used well, could be at least equally large. (3) Tonight, our speakers who are, as I said, Mr. Greely's colleagues, will present on this topic, but it will be more focused [on] evidentiary issues.... Adam will now present our speakers.

MR. SAURWEIN:

The Journal of Law and Health pulled some strings this week to welcome our guests with a little lake-effect snow.

Prior to joining Stanford, Teneille Brown practiced law for two years at Latham & Watkins in Washington, D.C., where she represented early-stage pharmaceutical device companies. Brown received her undergraduate degree in history and sociology of science at the University of Pennsylvania with a concentration in bioethics. While at Penn, she wrote an honors thesis on the ethics of elective cosmetic surgery and conducted HIV clinical research. She also conducted research at Penn Bioethics Center and drafted a bill on genetic testing informed consent. Brown graduated from the University of Michigan Law School focusing on bioethics in medicine and the law. She assisted in the creation of the Pediatric Advocacy Initiative, a legal clinic that offers free services to patients. Teneille Brown is a postdoctoral fellow at the Stanford Center for Biomedical Ethics, a fellow at the Center for Law & Biosciences and a research fellow at the MacArthur Foundation Law and Neurosciences Project. Her academic work focuses on the intersection of behavior, biology in the law with particular interest in evidentiary regulatory issues surrounding genetics and neuroscience.

Dr. Emily Murphy is a fellow at the Stanford Law School Center for Law & Biosciences and a research fellow on the MacArthur Foundation Law and Neuroscience Project based at the University of California, Santa Barbara. Murphy's current research focuses on issues surrounding the application of neuroimaging--of neuroscience and neuroimaging technology in criminal law and civil law, the effect of neuroimaging evidence on individual concepts of the agency and designing hypothesis-driven neuroimaging work that can directly inform legal or policy-based challenges. Murphy graduated from Harvard University and completed her doctoral work in the Department of Experimental Psychology at the University of Cambridge while on a Gates Cambridge scholarship. Her doctoral research examines neural and neurochemical bases of impulsivity and behavioral flexibility.

Join me in welcoming our guests.

MS. MURPHY:

Thank you so much for having us here today. It is interesting to see snow, as we're from California now. You'll forgive us if we're slightly casual in our presentation style. If there's anything that's incredibly unclear technically speaking, please let us know. But if we can, we'll hold some of the bigger questions for the end. We have tried to leave time for that.

Today we're representing our paper which was, as we found out last night--we found out this paper, which is titled "Through a Scanner Darkly: fMRI as Evidence of Mens Rea," is going to be published in the Stanford Law Review, Volume 62. So, we're pleased to have the opportunity to present to you guys and to get feedback that we can incorporate into the final draft of our paper.

We're going to talk briefly about neuroscience and law in general. You've probably been hearing more and more about that in the media and in other law reviews and in other law contexts. We think this paper fills a necessary gap in discussing what is admissible, what is not admissible, what purposes different brain imaging technologies can be used for. And so, we hope that this will become a real touchstone of this field as it starts to grow.

I should comment that the India case, (4) we were pleased to learn that as of December, the woman who was convicted and her husband, who was convicted as well, although he did not undergo the brain scanning technology, were released on bail because there were many other evidentiary flaws in the case. (5) So, we don't know how that's proceeding other than that, but things seem to be looking up, and are going to.

We're here today because this technology is quite literally on our doorstep. This is the cover of last year's California Bar Review which strongly suggests that if there are such things as truth and lies and violence that need to be sorted out, surely we can find the answer somewhere in our brains. And as a neuroscientist, I have to say: Everything is in our brain. Obviously every action, every thought, every social interaction, everything we've ever learned is all represented somewhere in our brain. It does not mean--and this is going to be the take-away of the point--that the technology, these technologies to extract such information from our brains, are perfect or that they will ever be perfect to the degree that people are hoping for. And we think this matters because it's already being used in courts.

California v. Savinon was a case brought to our attention a couple weeks ago. The defendant was accused of attempted murder. He, after losing his job, becoming incredibly despondent and breaking up with the victim, went to her house stalked her for several hours, attacked her, duct-taped her into the car seat and tried to suffocate them both with carbon monoxide. He entered pleas of not guilty and not guilty by reason of insanity on the basis that because of his major depression and his recent carbon monoxide exposure, he could not have formed the requisite intent to kill her, setting aside the fact that he then drove her home and bandaged her wounds and gave her the phone to call 911. The claims were going to be supported--and this is why we were contacted--by the testimony of William Klindt, who runs a brain scanning clinic in San Jose and who planned to rely on functional brain images of the defendant taken six months after the fact to support the claims of major depression and carbon monoxide poisoning, neither of which are medically approved uses for this particular brain scan. The prosecutor was, in our opinion, rightly concerned because she worried if she gets these brain scans in front of the jury, that's going to be incredibly convincing. And this was a hypothetical case that landed in our laps after we had written this paper, but this is exactly what we're concerned about, and we'll explain why.

The other reason it matters is because it's available all over the place. There is no FDA regulation of this, of brain scanning industries, and there are many. This is just a sampling of the third party companies, where you can go and get your own brain scanned. Two of the targets for greatest criticism have been this company, No Lie MRI, (6) which was also involved in a recent case in the last two weeks in San Diego--Teneille will talk more about that. The company offers such services to people as risk reduction in dating and issues concerning the underlying topics of sex, power and money. You can see that there are suggested customers: lawyers, law firms, government, corporate customers, individual customers, anybody who values the truth. Another egregious offender in our perspective is the Amen Clinics (7) in Newport Beach which offers SPECT scans, which are radiological scans looking at blood flow to different parts of the brain for many purposes, including, you'll notice, legal issues. On this website are many reported case studies of said legal issues, particularly those explaining the brain's basis of the violent behavior of several people facing criminal charges. Again, you think this is not a good use and Amen's testimony has indeed been challenged in court, and rightly so.

There are many different types of brain scanning technologies that have come into the courtroom and that we expect to see in the future. Today we're focusing specifically on fMRI, which stands for "functional magnetic resonance imaging." Other methods or tests that I mentioned use radioactive tracers; fMRI does not. It is a basic MRI machine that is effectively tuned to pick up the difference between oxygenated and deoxygenated blood.

This is how it basically works: a cognition or behavior of interest is mapped onto your functional brain anatomy based on this kind of principal--a subject, you or anyone who performs a task. In this case, the picture represents a symbol of a finger-tapping task, which is going to activate to the multiprime and the motor cortex in the opposite sides that, of course, runs to that finger. The increased neuronal activity is strongly correlated with an increase in oxygenated blood flow, although there is a timeline. One of the theoretical reasons behind this is that neurons themselves do not store energy; they don't store oxygen or glucose. So, once the neuron has depleted its...