Neulaw Conference Summary

http://neuro.bcm.edu/eagleman/neurolaw/Home.html

" Baylor College of Medicine’s Initiative on Neuroscience and Law addresses how new discoveries in neuroscience should navigate the way we make laws, punish criminals, and develop rehabilitation. The project brings together a unique collaboration of neurobiologists, legal scholars, ethicists, medical humanists, and policy makers, with the goal of running experiments that will result in modern, evidence-based policy."

Dr. Eagleman in his introduction of Neuroscience and law gave a broad overview of the many ways that neuroscience can explain criminal and other legally interesting behavior. Dr. Eagleman focused mostly on results from science as he explained how Charles Whitman and Phineas Gage were not consciously able to influence their behavior. He gave the example of a man who became interested in sex with children as a result of a tumor and was treated twice and with each surgery was able to regain normal sexuality.

After this, Dr. Hays explained key rulings and issues related to the admissibility of expert testimony (FRE 702. He showed that expert testimony related to neuroscience could be admitted in court if it met a four part test outlined in Daubert v. Merrell Dow 509 U.S.579 if the technique / theory was tested, peer review and published, had a known error rate, and had widespread acceptance within the relevant scientific community. He indicated that actually polygraph tests did very well in determining whether subject were being dishonest and that traditional juries are not well characterized in terms of their ability to assess truthfulness.

Dr. McGuire is very interested in the implications of neuroscience on ethics and law as in the case of participation in imaging research study leading to unexpected discovery of a large tumor by scientists who are not clinicians. She highlighted the many ways in which neuroscience is giving beneficial insights but that results can have uncomfortable implications for patients and research subjects. For example, some of the questions we would really like answers to cannot really be funded for ethical reasons. During the panel discussion she elaborated on this point by explaining that if we studied predictive factors for future criminal behavior based on fMRI imaging of school children, one would be worried about the stigma for children with these predictive factors for criminal behavior and this would outweigh the benefits of perhaps early intervention.

As a neurologist, Dr. Kass was able to go into more detail about how neuroscience can be used to assess individuals. He spoke about how differences in human frontal lobes lead to differences in emotional regulation such as the processing of risk, reward, and ambiguity as well as individual information thresholds for decision making. He spoke about variability in human self-regulatory styles; for example, some people are driven by gain and this leads to eagerness. Others are driven by loss prevention, and this leads to vigilance.

Mr. Dan Goldberg provided an important legal perspective by warning about how application of neuroimaging and related science can be used to mislead juries. In addition to Daubert 509, lawyers can sometimes apply Federal Evidence Rule 403 to neuroimaging because the value of such evidence may not be sufficient compared to the potential undue prejudice that can be caused. For example, in studies, juries that were given a fallacious narrative backed up with a brain imaging study overlooked the errors in the story whereas juries that did not have imaging studies as part of the presentation saw the problems.

Dr. Amir Halevy gave an engaging presentation of the factors in determining brain death and explained that dying is not an event, but rather a process in which a body becomes a corpse. He walked the audience through the history of how death is determined and explained how the coincidental development of technology such as ventilators and organ transplant capabilities led to ethical worries that organ donation might precede death, if not in actual fact, then possibly in a legal sense. He carefully outlined important considerations such as whether the body was at normal body temperature when a determination of death was made as one example to ensure that every appropriate attempt had been made to resuscitate the patient.

Finally Dr. Winslade wrapped up the formal presentation portion of the conference with a careful analysis of voluntary surgical castration for three sex offenders under Texas Law, as for certain non-violent pedophiles . It is important to recognize that this castration procedure is part of a comprehensive therapy that includes intensive counseling and education. Dr. Winslade discussed three cases that showed that it is possible to treat pedophiles so that they can have better control over their impulsivity and other behavior problems even if there is no proven cure for pedophilia.