Neuroscience in the Courtroom: An Attempt for Clarity

*Editor’s note: You can catch a lengthier discussion of this topic at our Jan 29th session of Neuroscience and Neuroethics in the News.

When people think about functional magnetic resonance imaging (fMRI) and the courtroom, many often think of mind reading or colorful images of psychopathic brains. Portable fMRI machines capable of reading our personal thoughts pop into our heads and arouse a fear that one day a neuroscientist could reasonably discern our deepest secrets through a brain scan. Despite recent scholarship that suggests a world filled with covert fMRI lie detection devices is far away (if ever attainable), I think further attention should be paid to how people think about neuroscience and interpret scientific information that draws on brain-laden language, particularly in the courtroom (Farah, Hutchinson, Phelps, & Wagner, 2014). This topic is of special interest to me as it is the focus of my undergraduate research thesis. I also think it should be relevant to neuroscientists, ethicists, and journalists as well because the way in which people interpret and understand aspects of the brain and human behavior is perhaps a consequence of how such information is portrayed to the public.

Photo from Ali, Liftshitz, & Raz, 2014

“Believe the children”? Childhood memory, amnesia, and its implications for law

How reliable are childhood memories? Are small children capable of serving as reliable witnesses in the courtroom? Are memories that adults recall from preschool years accurate? These questions are not only important to basic brain science and to understanding our own autobiographies, but also have important implications for the legal system. At the final Neuroscience, Ethics and the News journal club of the 2014 Fall semester, Emory Psychologist Robyn Fivush led a discussion on memory development, childhood amnesia, and the implications of neuroscience and psychology research for how children form and recall memories.

This journal club discussion was inspired by a recent NPR story that explored the phenomenon of childhood amnesia. Why is it that most of us cannot form long-term memories as infants, at least in the same way that we can as adults? This fundamental question has fascinated many researchers and psychologists and neuroscientists today are tackling it in innovative ways. Even adult memory of the recent past is not nearly as reliable as most people (and jurors) believe¹ and while 2-year-old children can report long-term memories from several months prior², adults typically cannot recall memories from before age 3.5. The emergence of autobiographical memory may arise from the realization of the self (~2 years) and acquisition of language skills, but it seems to happen gradually. Childhood amnesia may actually be the result of a slow conversion to recalling self-experienced episodes rather than just events themselves.³

Via medimoon.com

However, the general public has been shown to have a rather poor understanding of memory,¹ perhaps due to “common sense” beliefs and cultural traditions. These common sense and cultural notions are deep-seated and may even have more influence in our society than the latest research, especially if those findings are not effectively communicated to the public. In fact, there is significant disagreement between the memory experts and judges, jurors, and law enforcement on the reliability of childhood memories recalled by adults.⁴ For example, nearly 70% of experts surveyed agreed that “Memories people recover from their own childhood are often false or distorted in some way”, but only about 30% of jurors thought that statement was true.³

Ethical Issues in Neurosurgery: A Special Issue of Virtual Mentor

This month the American Medical Association's journal Virtual Mentor published a series of articles about the ethical issues pertaining to neurosurgery. Some of the articles include discussions about deep brain stimulation in early-stage Parkinson Disease, simulation and neuro-surgery teaching tools, and integrating ethics into science education. The special issue also featured two members of the American Journal of Bioethics Neuroscience: editor-in-chief Dr. Paul Root Wolpe, and editor Dr. John Banja. The issue was guest edited by a neurosurgical resident at Emory University, Jordan Amadio. Click here to view the special issue.

Neuroscience and Human Rights

Last month, I had the privilege of attending the International Neuroethics Society Meeting in Washington, DC, made possible by a travel award from the Emory Neuroethics Program. This year's meeting featured panelists from diverse backgrounds: government, neuroscience, ethics, law, engineering, public health, and others. Each participant and attendee offered her unique perspectives on topical issues in neuroethics.

As I listened to many thought-provoking presentations and discussions, a question kept arising in my mind: to what extent should scientists engage with issues of social justice if their research findings support changes in public policy? As a "war on science" continues to be waged by members of the U.S. Senate and Congress (see Senator Coburn's 2014 "Wastebook," and the recent NPR Science Friday response by targeted scientists) and the American public lags in scientific literacy (A NSF report this year found that 1 in 4 Americans think the sun orbits the earth), this question carries a particular sense of urgency. Isn't science supposed to support human flourishing and maximize our well-being, as the American Association for the Advancement of Science puts it, "for the benefit of all people?" How accountable should scientists be in ensuring that this actually happens, beyond the scope of their laboratories?

My reflections on these questions were ignited by a fascinating example of how neuroscience can inform policy, provided by Katy de Kogel of the Dutch Ministry of Justice. Dr. de Kogel spoke of recent shifts in Dutch criminal law that reflect neuroscientific consensus: the neural substrates that support decision-making are not fully "online" in the developing, adolescent brain. In contrast to United States legal code, which specifies that individuals above the age of 18 be prosecuted as adults, thus barring them from legal protections offered to minors, Dutch courts have incorporated scientific understanding of neurodevelopment into their criminal code by advancing the age at which individuals are tried as minors: from 18 to 22 years of age. Criminal research findings support this change, as minors housed in adult detention centers tend to have higher rates of recidivism than those detained in juvenile centers. In my view, this is a refreshing and somewhat unexpected example of how society can benefit from advancements in neuroscience. We often think of science producing technological or medical innovations that improve our lives, rather than ancillary benefits like this that are impossible to foresee at the outset of a project.

Katy de Kogel of the Dutch Ministry of Justice (Courtesy of Dr. Gillian Hue)

The 2014 International Neuroethics Society Annual Meeting

By Mallory Bowers

On November 14, the International Neuroethics Society convened for its annual meeting at the AAAS building in Washington, D.C. I had the pleasure of attending and presenting at INS through the generous support of the Emory Neuroethics Program. The society is an interdisciplinary group of scholars - including lawyers, clinicians, researchers, and policy makers - and the 2014 agenda reflected this diversity in expertise.

The conference opened with a short talk by Chaka Fattah, the U.S. representative for Pennsylvania’s 2nd congressional district. As a Philadelphia native, I was excited to learn that Congressman Fattah was an architect of the Fattah Neuroscience Initiative, which was an impetus for developing the Brain Research through Advancing Innovative Neurotechnologies (BRAIN) Initiative.

Courtesy of Gillian Hue

Discussion of the BRAIN initiative continued through the following panels, “The BRAIN Initiative & the Human Brain Project: an Ethical Focus” and “The Future of Neuroscience Research & Ethical Implications”. Panelist Stephen Hauser spoke about the Presidential Commission for the Study of Bioethical Issues, while Henry Markram discussed the Human Brain Project – the European-based research collaboration to establish innovative neurotechnologies and develop a more thorough understanding of the human brain. Representatives of several scientific funding institutions (Dr. Tom Insel – Director of the National Institute of Mental Health, Dr. George Koob – Director of the National Institute on Alcohol Abuse and Alcoholism, and Dr. Geoff Ling – Defense Advanced Research Projects Agency) discussed the progress of neuroscience research, while emphasizing the need for continued advancement. Although the morning panels were interesting (as a behavioral neuroscientist, seeing Dr. Tom Insel was quite thrilling), I was left with the impression that the scientific “establishment” was only beginning to scratch the surface of the neuroethical implications of the research being conducted by scientists like myself. I wondered if any of the morning panelists attended the later sessions, which discussed more neuroethically hard-hitting issues, such as “Neuroscience in the Courts” and “Neuroscience and Human Rights”.

Media and social stigma can influence the patient adaptation to neurotechnologies and DBS

By Daniela Ovadia

Daniela Ovadia is the co-director of the Neuroscience and Society Lab in the Brain and Behavioral Sciences Department of the University of Pavia and is the scientific director of Agenzia Zoe. 

Deep Brain Stimulation (DBS) is one of the oldest neuromodulation techniques; it was approved by the FDA in 1997 for the treatment of essential tremor, and a few years later, in 2002, the indication was extended to the treatment of Parkinson’s disease and dystonia (in 2003). In 2009 a new era for DBS started when the FDA also approved it as a therapy for obsessive-compulsive disorder. Some patients experienced a very good outcome, while others were less lucky and experienced side effects such as cognitive, behavioral or psychosocial impairments. DBS is now a common procedure for the treatment of many motor and behavioral impairments. As certain patients associations and civil liberties groups claimed that psychosurgery was back, and with it the social control on the patient’s mind, the media became interested in the topic. With the aim to protect the use of a promising technology, scientists and researchers also became involved in the field.

In this recently published article, authors Mecacci and Haselager focus their attention on the conceptual framework influencing the lack of compliance (or maladaptation, as they define it) to DBS implants. They identify two key elements determining patients expectations toward the effects of this neurodevice: mind-brain dualism (or, at the opposite, a braincentric point of view on human nature and behavior) and a hype in presenting potential benefits of new neurotechnologies. Both can modulate the patient’s expectations and influence the clinical and adverse effects of the device. But even if the authors cite the role of the media in shaping the public perception of new brain technologies and in building common knowledge about them, Mecacci and Haselager don’t delve deeply into the topic.

An overview of Neurointerventions and the Law: Regulating Human Capacity (Lawyers, Neuroscientists, Philosophers, and Psychologists in Conversation)

During the weekend of September 12^th, Georgia State University was home to fascinating conversations between prominent lawyers, neuroscientists, philosophers, and psychologists. The challenging, thought-provoking, and interdisciplinary nature of this forum was condensed within its title: Neurointerventions and the Law: Regulating Human Mental Capacity.

Image from AJOB Neuroscience

Organized by the Atlanta Neuroethics Consortium (ANEC), the conference sought debate on the legal implications of using modern neuro-interventions. Some of the questions that were raised included, but were not limited to:

• What mental capacities does one need in order to be eligible for trial? For punishment? For release? For cognitive enhancement?
• What policies should be in place to control such neuro-interventions?
• What are the current neuro-interventions used in the courts, and how are they regulated?
• How should we view the relationship between mental capacity and both moral and legal responsibility? 

Image from Knowing Neurons

The conference gathered many prominent members of the MacArthur Foundation Research Network on Law and Neuroscience. Some of the participants were Senior Judge Andre Davis (U.S. Court of Appeals for the Fourth Circuit), Nita Farahany (Duke University), Walter Glannon (University of Calgary, Stephen Morse (University of Pennsylvania Law School), Justice David Nahmias (Supreme Court of Georgia), and Paul Root Wolpe (Emory Center for Ethics).

Agency Revisited: Dr. Heidi Ravven on Moral Psychology, Ethics and the Myth of Free Will

By Stephanie Hare

Stephanie Hare is a second-year PhD student studying neuroscience at Georgia State University. She is the recipient of the first 2CI Neuroethics Doctoral Fellowship and has research interests in psychiatry, law and the normative impact of neuroimaging research. You can connect with Steph via email at share1@student.gsu.edu or use her Twitter handle, @NeuroSteph.

On September 20, Emory University hosted a book talk and signing with Dr. Heidi Ravven, author of The Self Beyond Itself: An Alternative History of Ethics, the New Brain Sciences and the Myth of Free Will. Dr. Ravven received an unsolicited $500,000 grant from the Ford Foundation to write a book rethinking traditional ethical frameworks and theories of moral agency. As a leading scholar on the work of Baruch Spinoza and Jewish philosophy, Ravven is perfectly situated to recognize socio-cultural assumptions regarding our beliefs about free will and agency, allowing for the consideration of alternative perspectives. For nine years, she performed research on new findings from psychology and neuroscience to gain deeper insight into the fundamental facts about human nature and flourishing, and in turn, what we can and should reasonably expect of each other as moral agents.

Via hamilton.edu

Drug and Alcohol Abuse Among Physicians: How Concerned Should We Be?

By John Banja 

John Banja, PhD is a medical ethicist at Emory University’s Center for Ethics, a professor in the Department of Rehabilitation Medicine, and the editor of AJOB Neuroscience.

In next month’s (December, 2014) issue of the American Journal of Bioethics, I’ll have an article appear on drug and alcohol use among health professionals. My paper is a counter-argument to one that appeared in JAMA in 2013,¹ which recommended that physicians who are involved in serious, harm-causing medical errors should be drug and alcohol tested on the spot. Now, I’ve studied the occurrence of medical errors for over a decade, and the more I thought about that proposal, the more I thought it was a bad idea. So I wrote the article, sent it to AJOB, and eventually it was accepted.²

The point of this blog post is to discuss something that stems from what I learned from the literature on drug and alcohol abusing physicians: most of them can go years, even decades, without the drug or alcohol abuse seriously affecting their work life or technical skills. Physicians who abuse alcohol—which is the most commonly abused substance—can go decades without anyone noticing performance deterioration.³ And when I asked an anesthesiologist recently about the second most popularly abused drugs, oxy- or hydrocodone based narcotics, and how long she thought a physician can be on them without anyone noticing, she pursed her lips and quietly said, “years” (although this doesn’t include intravenous injection of narcotics, where the impact on performance will probably become noticeable in months.)^3-5

Can Neuroscience Validate the Excuse “Not Tonight, Dear, I have a Headache?"

Men and women experience fluctuations in sexual motivation over a lifetime. Whether sexual desire is enhanced or diminished at any particular time can depend on a number of factors and circumstances, but researchers from McGill University recently set out to determine specifically how pain impacts sexual behavior.¹ Results from this study, published in The Journal of Neuroscience earlier this year, were the topic of the most recent “Neuroethics and Neuroscience in the News” discussion facilitated by Emory Women’s Gender and Sexuality graduate student Natalie Turrin and Neuroscience graduate student Mallory Bowers.

To study how pain impacts sexual motivation, researchers used a partitioned Plexiglas chamber where the partition contained small, semi-circular openings only large enough for the female mice to pass through (this study required that male mice be greater than 45 g and female mice smaller than 25 g). In this set-up, the females were free to either cross the partition and engage in sexual activity with the male mice or “escape” to the side where the males were unable to follow. Sexual motivation in this study was measured by how many total mounts occurred, and since mounting involves male participation, time spent on the male side of the chamber was also a measure of female sexual motivation. When researchers injected female mice with inflammatory agents in the vulva, hind paw, tail, or cheek to induce pain, female mice consistently participated in less mounting behavior and spent less time on the male side of the cage compared to no injections. Males, on the other hand, when injected with the same inflammatory agents in either the penis, hind paw, tail, or cheek, experienced unimpeded sexual activity (total number of mounts did not decrease compared to controls) in an open field paradigm where the males had unrestricted access to the females. Although it has been observed that female mice can have a higher sensitivity to pain than male mice,² researchers observed that male and female mice exhibited the same level of sensitivity towards inflammation to the hind leg according to the mouse grimace scale (MGS), a visual observation of a mouse’s facial features to determine pain levels.

The final experiments to study sexual activity involved rescuing the lack of sexual motivation from female mice using either an antinflammatory agent or two different prosexual drugs. The analgesic pregabalin reversed the reduction of total mounts that resulted from inducing pain in females, and according to the MGS, also reduced the level of pain. “Prosexual” drugs, apomorphine (APO) and melanotan-II (MT-II), had the same rescuing effect, but based on the MGS, did not have the ability to relieve pain from the inflammatory injections. It should be noted though that APO increases locomotion³ in mice, which may partially account for the females moving towards the male side of the cage more often.