April 11, 2018: Neuroscience Technologies and the Law
Summary:
In 2010, the USA saw the first hearing on fMRI lie-detection evidence, the first admission of EEG data used for sentences reduction, and a Supreme Court ruling citing brain development research.
Neuroimaging data has been used in disability, constitutional, contract, and criminal cases.
The use of fMRI data relies on interpretation which may or may not be accurate, especially when that interpretation is ignorant of the limitations of the experimental design.
Discussion:
Dead fish study: we can get results in an fMRI that aren’t necessarily meaningful. A lot of fMRI studies come from aggregate data, which is not useful on an individual level.
Is it responsible for neuroscientists to “dumb down” fMRI and other technologies so that legal practitioners can understand use data in the courtroom?
Legal practitioners need to be educated on neuroscience, either through higher education or continuing education (CE) credits.
Expert witnesses should be present to validate the use of the evidence.
Knowing that scientific imagery, especially brain images, have the ability to persuade readers, regardless of the integrity of the data, is it responsible to use them in court case?
The data isn’t 100% reliable. We know that there is error in fMRI interpretation, and we have evidence that it’s not the accurate diagnostic tool, especially regarding consciousness.
What are smart limitations to put on when brain images should or should not be used? Should they be treated similar to other scientific evidence, or should we treat them as something new and different?
Is this even admissible evidence? Not sure that the case can be made that this is good evidence.
How would the juror be seeing this data? Regardless of its explanation, jurors will still be considering it, which is an issue with a lot of scientific evidence in the courtroom.
Debate will shift to whether or not the data is correct, and, if it is correct, if it’s meaningful in context. Regressive for cases in terms of allowing it for evidence in that it can detract from actual argumentation.
Limitations on admissibility need to be standardized. Is it viable to use the same standards as used in polygraphs?
Not a black and white issue: there are instances where having brain data (eg. disability) can be helpful, but elsewhere lots of risk of misinterpretation or a violation of privacy.
Some jurisdictions give physicians the right to withdraw artificial life support form patients with unresponsive wakefulness syndrome, but not minimally conscious patients. Given what we know about diagnostic reliability of neuroscience technology, should policy change?
Proxy decision-making for minimally conscious people.
If medical professionals cannot get people to respond, is it right to “pull the plug?”
Lots of other factors: family, religion.
Medical anomalies shouldn’t influence the standard.
Jones, O.D. & Shen, F.X. (2012) Law and Neuroscience in the United States. In Spranger, T.M. (2012) International Neurolaw: A Comparative Analysis, p. 349. Springer-Verlag.
Stender, J. (2014) Diagnostic precision of PET imaging and functional MRI in disorders of consciousness: a clinical validation study. The Lancet, 384(9942), 9-15.