Tuesday, January 27, 2015

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
The seductive allure of neuroscience information has captivated many researchers as brain imaging and neural explanations begin to seep into the legal realm and fascinate the media (Jones, Wagner, Faigman, & Raichle, 2013). This idea—the seductive allure hypothesis—refers to the notion that people find neurological justifications of behavior to be a marker of a sound explanation for an action or tendency, regardless of the quality of the information (Weisberg, Keil, Goodstein, Rawson, & Gray, 2008; McCabe & Castel, 2008). Understanding whether people are captivated by neural information has largely shifted into a debate about the persuasive and informative value of brain images (Farah & Hook, 2013).  Some of this research has involved measuring the impact of brain images on sentencing verdicts and punishment determinations in legal cases (Schweitzer, Saks, Murphy, Roskies, Sinnott-Armstrong, & Gaudet, 2011). The results of these studies are largely mixed, with many more research findings not corroborating the seductive allure hypothesis (Roskies, Schweitzer, & Saks, 2013), suggesting that neurological explanations are particularly compelling. Should this lead us to believe that the debate surrounding the persuasiveness of brain images is over?

I think not. In an effort to infuse some clarity in the neuro-seduction debate, I will discuss two overarching questions that I find particularly relevant to this ongoing discussion: first, what precisely does it mean to be neuroscientific? And, second, assuming that neuroscience has some potential to unduly sway people, is it also reasonable to assume neuroscience has equal pull amongst people with differing beliefs about the mind, the brain, neuroscience, and psychology generally? I will attempt to address both of these issues below.
Prefrontal cortex, impulse control, brain images—oh my!
 Lots of explanations, pictures, graphs, journal articles, and books could constitute neuroscience. Take, for instance, an fMRI brain image of a person with psychopathy: to a general audience, such a picture could convey lots of different types of information, ideas, or concepts about the mind and the brain. To some, an fMRI image may suggest that a particular pathology is “real” or that someone’s deviant or anti-social behavior is “hardwired” in the brain. Now, take a lawyer merely describing adolescents as particularly impulsive bunch because of their delayed development of the pre-frontal cortex. This latter form of argumentation may also convey very similar ideas to certain people, as is the case in the former example, even though it does not rely on an image per se.
In studies examining the persuasive power of brain images, we need to be careful not to conflate the power of an explanation and the power of an image. In other words, if we are going to argue that neuroscience is unduly persuasive, we need a better conceptualization of what it means to be neuroscientific, and I think neuroscience is much more than just fMRI images. The distinction between explanation and image is of particular relevance; one less discussed yet consistent finding is that neurological information (which I will later refer to as neuro-information) tends to affect people’s judgments, such as a defendant’s guilt, an article’s scientific credibility, or a supposed criminal’s deserved punishment (Weisberg, et al., 2008; Schweitzer, Saks, Murphy, Roskies, Sinnott-Armstrong, & Gaudet, 2011; Michael, Newman, Cumming, & Garry, 2013; Roskies, et al., 2013). Given this finding, it is still not clear what part of the explanation (e.g., the neuro-language, the image, or both) sways people to think that neuroscience tells us something above and beyond the neuroscience explanation itself.
This lack of clarity is particularly problematic insofar as a lengthy debate surrounding just the admission of brain images as evidence has also unfolded in recent years (Morse, 2014). In my opinion, the role of just plain ol’ brain-sounding language has been overshadowed by the debate about the glitziness of brain images. I am not attempting to provide a solution to this definitional and conceptual conundrum; however, I do think that it would be erroneous to conclude either that brain images are entirely not biasing or that all neuroscience possesses unparalleled persuasive power given the disparate and sometimes confusing findings within this area of research.

Image from BosLaw

Shouldn’t individual differences matter? 
It is also important to consider whether all people are truly likely to be swayed by neural language. Researchers have yet to fully explore if there are specific people who are particularly compelled by neural language. One study has examined education level differences, but there are potential other factors that may influence one’s likelihood to fall prey to inaccurately interpreting neural information, such as previous beliefs about neuroscience and motivation to confirm such beliefs (Weisberg, et al., 2008; Scurich & Shniderman, 2014). For instance, people often differ in how they conceptualize psychology. I could see how people who tend to think psychology lacks scientific rigor may tend to believe that neuroscience offers a greater opportunity to understand behavior. Similarly, for some people, the motivation to confirm or disconfirm an issue that a neuroscientific explanation seeks to uphold may matter. For instance, in an interesting variation on these neuro-seduction studies, a group of researchers had people rate the validity of an article that described how neuroscience could or could not support the notion that the death penalty deters people from committing crimes (Scurich & Shniderman, 2014). The authors found that people tended to give more favorable ratings to a particular neuroscientific article when it supported their initial beliefs about the death penalty. Overall, it seems unlikely that neuroscience or neuro-images have the power to overwhelmingly persuade everyone in all circumstances or overturn existing beliefs.

What should we do?
The verdict is not out on the influence of brain imaging in the courtroom. This area of research continues to grow and change as people devise nuanced ways to test why brain images may change behavioral outcomes and who is most likely to succumb to the seductive power of brain information or brain images. Nonetheless, this research has potential to impact our legal system. Ultimately, aside from addressing my two aforementioned questions, I do think that it is important for scientists of all disciplines to continue attempting to explain findings regarding the brain and behavior in the clearest terms possible. As more people learn about what brain imaging and brain information can tell us about behavior, we as researchers must be ever aware of the potential for our findings to be misconstrued in the public or in the courtroom.


Farah, M. J., & Hook, C. J. (2013). The seductive allure of “seductive allure”. Perspectives on Psychological Science, 8(1), 88-90.

Farah, M. J., Hutchinson, J. B., Phelps, E. A., & Wagner, A. D. (2014). Functional MRI-based lie detection: scientific and societal challenges. Nature Reviews Neuroscience, 15(2), 123-131.

Jones, O. D., Wagner, A. D., Faigman, D. L., & Raichle, M. E. (2013). Neuroscientists in court. Nature Reviews Neuroscience, 14(10), 730-736.

Morse, S. J. (2014). Brain imaging in the courtroom: the quest for legal relevance. AJOB Neuroscience, 5(2), 24-27.

Roskies, A. L., Schweitzer, N. J., & Saks, M. J. (2013). Neuroimages in court: less biasing than feared. Trends in cognitive sciences, 17(3), 99-101.

Saks, M. J., Schweitzer, N. J., Aharoni, E., & Kiehl, K. A. (2014). The impact of neuroimages in the sentencing phase of capital trials. Journal of Empirical Legal Studies, 11(1), 105-131.

Schweitzer, N. J., Saks, M. J., Murphy, E. R., Roskies, A. L., Sinnott-Armstrong, W., & Gaudet, L. M. (2011). Neuroimages as evidence in a< em> mens rea</em> defense: No impact. Psychology, Public Policy, and Law, 17(3), 357.

Scurich, N., & Shniderman, A. (2014). The Selective Allure of Neuroscientific Explanations. PloS one, 9(9), e107529.

Weisberg, D. S., Keil, F. C., Goodstein, J., Rawson, E., & Gray, J. R. (2008). The seductive allure of neuroscience explanations. Journal of Cognitive Neuroscience, 20(3), 470-477.

Want to cite this post?

Marshall, J. (2015). Neuroscience in the Courtroom: An Attempt for Clarity. The Neuroethics Blog. Retrieved on , from http://www.theneuroethicsblog.com/2015/01/neuroscience-in-courtroom-attempt-for.html

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