Transcript: the Brain Sciences in the Courtroom -

• Citation: Vol. 62 No. 3
• Publication year: 2011

The Brain Sciences in the Courtroom

A Symposium of the Mercer Law Review October 22, 2010

BOWEN REICHERT: Good morning, everyone. It is my distinct pleasure to welcome all of you to our 2010 Symposium: "The Brain Sciences in the Courtroom." I am Bowen Reichert, the Editor in Chief of the Mercer Law Review.

We are delighted to welcome an incredible group of speakers to Mercer and to Macon, Georgia, and we are truly honored that each of you are here. I would like to thank the Editorial Board and the members of the Law Review who have all worked incredibly hard to make sure that this event happened. I would especially like to thank Courtney Ferrell, our Lead Articles Editor, who is in charge of the Symposium this year. With that, I will ask Courtney to come up and say a few words. Again, thank you for being here.

COURTNEY FERRELL: Good morning and thank you all for attending this very special event during which we will examine the intersections ofneuroscience and the law. My name is Courtney Ferrell, and I am the Lead Articles Editor of the Mercer Law Review. This Symposium would not have been possible without the dedication and enthusiasm of Professor Ted Blumoff. Professor Blumoff is responsible for bringing this all-star team ofscientists, professors, and practitioners together today. I would like to thank Professor Blumoff, the presenters here today, and the members of Mercer's Law Review for the work they have all put into making this Symposium what we hope will be a resounding success.

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TED BLUMOFF: Welcome to all of you, and thank you for coming. We will start this morning's session with an overview from Professor Oliver Goodenough. I am going to turn this over to Judge Morris Hoffman to get us started.

MORRIS HOFFMAN: Thank you, Ted. It really is a testament to Ted that all of us are here. It is even more of a testament that all of us not only came, but we agreed to limit our talks to twenty minutes. It is my pleasure to introduce our first two speakers, one a good friend of mine and one, I hope, a new friend.

Our first speaker, Oliver Goodenough, is a law professor at Vermont Law School where he teaches corporations, intellectual property, entertainment law, and property. Oliver is also a Fellow at Harvard's Berkman Center for Internet and Society, and he is one of the driving forces for the Gruter Institute where most of us met. It is always an honor to go anywhere with Oliver, and it is a pleasure to have him here.

Our second speaker this morning is Dr. Richard Elliott. Richard is a professor of psychiatry at Mercer University's Medical School, and also an adjunct professor at the Law School. He completed his M.D. in 1978 and has a Ph.D. in Biophysics. He did his residency in psychiatry, is a practicing psychiatrist, and is a testifying forensic psychiatrist. Richard is certified by the American Board of Psychiatry and Neurology and the American Board of Forensic Psychology. He served as the Medical Director ofGeorgia's Mental Health System and is currently the Director of Medical Ethics. Richard has authored more than fifty peer-reviewed publications.

Oliver is going to give an overview of where we are after twelve years of thinking about the intersection of neuroscience and law, and then Richard is going to give an overview of neuroscience, focusing on the complexity of the brain and a little history of neuroscience. Oliver.

OLIVER GOODENOUGH: Thank you very much. First of all, thanks and a quibble. Many thanks to Mercer Law School, the Mercer Law Review, and the Institute of Continuing Legal Education for Georgia for its sponsorship. Ted, a great event.

The quibble is the Symposium title: "The Brain Sciences in the Courtroom." Now, as important as neurolaw may eventually be in the courtroom, it will also be at least as important in the legislative chamber, in the board room, in the prison, and in many, many places. Indeed, viewing the law as prosecution and litigation is, I think, actually a problem for this field because, as we see with scientists, they frequently have a kind of Perry Mason view of what we are as lawyers. And, so, my quibble is that maybe we can expand the scope of the title.

2011] BRAIN SCIENCES SYMPOSIUM 771

As Morris said, I am going to give you a bit of an overview. We're going to move at some speed, and we are going to point to a fair amount of information in passing. The nice thing is that you are going to have a full day on neurolaw, and lots ofpeople are going to present, so you're going to have a chance to assimilate different bits and pieces in more detail and not just rely on the brief summary you are about to get.

So, a decade of neurolaw. Where has it brought us?

My talk will follow this simple outline: first, where did neurolaw come from; second, some history; third, substantive topics and cautions (this part is a bit of a laundry list and a brief personal advertisement here, Goodenough and Tucker, Law and Cognitive Neuroscience¹has a lot of what this is taken from in more detail); and finally, suggestions on going forward. This last section can be summarized as suggestions for a bit less defense and a broader and better offense.

So, where did neurolaw come from, and what is its history? Many of the people in this room have been part of the story. My first exposure, and this corresponds with Morris's notion of twelve years, was at a Gruter Institute conference in 1998. As the idea took hold, there were many parallel investigations in the early 2000s. The Society for Evolutionary Analysis in Law, or SEAL, took this subject on in the mid-2000s. Throughout the past decade, more work has been done, and the field, while still young, is now pretty well established.

In reviewing neuroscience history, we should put a bookmark down for Margaret Gruter who passed away earlier in the decade. She was a pioneer in law and neuroscience studies, and her Institute² was a place were much of the work originated. She was prescient about many of these matters, and we should remember her in this context.

Now third, what are the topics that have been particularly treated on in this neurolaw combination? There are three useful divisions for the field. Hank Greely first suggested them to me. The first is the law of neuroscience. In other words, what does law do to regulate neuroscience itself? The second is the study of the cognition and behavior that are relevant to law and policy. This is where the greatest amount of work is going on. Third and finally, there is the study of the cognition and behavior of law itself. In this category we turn the neuroscience lens on what we do as lawyers and judges.

1. Oliver R. Goodenough & Micaela Tucker, Law and Cognitive Neuroscience, 6 Ann. Rev. L. & Soc. Sci. 61 (2010).

2. "The Gruter Institute for Law and Behavioral Research brings together a multidisciplinary network of distinguished scholars... to pursue interdisciplinary research and teaching in law and the biologically informed behavioral sciences." Welcome to the Gruter Institute, Gruter Institute, http://www.gruterinstitute.org.

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In the law of neuroscience, we deal with issues like regulating scientific research, informed consent, and neural privacy. Topics here also include consciousness, brain death, vegetative states, and enhancements. Neural enhancements will challenge the legal system in the near future. Can we give students enhancements before they take exams or standardized tests? Do we allow students to take Ritalin before they do the LSAT and improve their scores by twenty or thirty points? What about testifying and memory in the courtroom? Can we use pharmacology to enhance them? Intellectual property also plays a part. Can we patent neurolaw discoveries when we invent them? Can we patent neural processes themselves? There are plenty of interesting questions around the law of neuroscience.

Now to the second of the categories: thought and behavior of interest to law. Are there neuroscience discoveries that will help me as a lawyer? I think this is what most of you in the room are here for. One widely discussed topic is the possibility neuroscience has for revealing subjective mental states. Can we use scientific techniques to get behind the opacity of the skull and start to say what is going on in our subjective thinking? One of the applications of this principle that has gotten the most press is the assessment of deception and truth telling. Can a neural lie detector help us know when someone is telling a lie? I think most of us in the field feel that the jury is still out on that one. There is some interesting science, but it is not yet ready for prime time or the courtroom. There are some smart folks on the other side who will argue that with me, but so far, that is my conclusion.

Pain is also interesting. There is a whole set of legal concerns around pain. There is pain and suffering. There is pain as punishment. Pain is one of the subjective states that we can perhaps get windows into through these techniques. Memory-the cognitive science of memory is at an interesting place. Bias-can we understand the cognition of bias? So, revealing subjective states is one category where a lot of work has gone on.

Evidence is an important topic. Can we get neuroscientific evidence into court once we have it? The classic three prongs of reliability, relevance, and possible prejudice are all implicated. In terms of reliability, we are at the stage when the underlying science, such as fMRI scanning, is well developed and reliable. What is not so reliable is the move to the relevance step. What legally relevant matters are we proving when we see all these pretty pictures? That is the more difficult question to answer. And then there is prejudice. There has been argument on how prejudicial neuro-evidence will be. There may be something to the "Christmas tree effect," in which all the pretty lights go on in the brain, leading to delight...