Neuroscientific evidence in the courtroom: a review.

Aono, D., Yaffe, G. & Kober, H.
Cogn. Research 4, 40 (2019)
doi:10.1186/s41235-019-0179-y

Abstract

The use of neuroscience in the courtroom can be traced back to the early twentieth century. However, the use of neuroscientific evidence in criminal proceedings has increased significantly over the last two decades. This rapid increase has raised questions, among the media as well as the legal and scientific communities, regarding the effects that such evidence could have on legal decision makers. In this article, we first outline the history of neuroscientific evidence in courtrooms and then we provide a review of recent research investigating the effects of neuroscientific evidence on decision-making broadly, and on legal decisions specifically. In the latter case, we review studies that measure the effect of neuroscientific evidence (both imaging and nonimaging) on verdicts, sentencing recommendations, and beliefs of mock jurors and judges presented with a criminal case. Overall, the reviewed studies suggest mitigating effects of neuroscientific evidence on some legal decisions (e.g., the death penalty). Furthermore, factors such as mental disorder diagnoses and perceived dangerousness might moderate the mitigating effect of such evidence. Importantly, neuroscientific evidence that includes images of the brain does not appear to have an especially persuasive effect (compared with other neuroscientific evidence that does not include an image). Future directions for research are discussed, with a specific call for studies that vary defendant characteristics, the nature of the crime, and a juror’s perception of the defendant, in order to better understand the roles of moderating factors and cognitive mediators of persuasion.

Significance

The increased use of neuroscientific evidence in criminal proceedings has led some to wonder what effects such evidence has on legal decision makers (e.g., jurors and judges) who may be unfamiliar with neuroscience. There is some concern that legal decision makers may be unduly influenced by testimony and images related to the defendant’s brain. This paper briefly reviews the history of neuroscientific evidence in the courtroom to provide context for its current use. It then reviews the current research examining the influence of neuroscientific evidence on legal decision makers and potential moderators of such effects. Our synthesis of the findings suggests that neuroscientific evidence has some mitigating effects on legal decisions, although neuroimaging-based evidence does not hold any special persuasive power. With this in mind, we provide recommendations for future research in this area. Our review and conclusions have implications for scientists, legal scholars, judges, and jurors, who could all benefit from understanding the influence of neuroscientific evidence on judgments in criminal cases.

Bad science puts innocent people in jail — and keeps them there

Radley Balko and Tucker Carrington
The Washington Post
Originally posted March 21, 2018

Here is an excerpt:

At the trial level, juries hear far too much dubious science, whether it’s an unproven field like bite mark matching or blood splatter analysis, exaggerated claims in a field like hair fiber analysis, or analysts testifying outside their area of expertise.  It’s difficult to say how many convictions have involved faulty or suspect forensics, but the FBI estimated in 2015 that its hair fiber analysts had testified in about 3,000 cases — and that’s merely one subspecialty of forensics, and only at the federal level.    Extrapolating from the database of DNA exonerations, the Innocence Project estimates that bad forensics contributes to about 45 percent of wrongful convictions.

But flawed evidence presented at trial is only part of the problem.  Even once a field of forensics or a particular expert has been discredited, the courts have made it extremely difficult for those convicted by bad science to get a new trial.

The Supreme Court makes judges responsible for determining what is good science.  They already decide what evidence is allowed at trial, so asking them to do the same for expert testimony may seem intuitive.  But judges are trained to do legal analyses, not scientific ones.  They generally deal with challenges to expert testimony by looking at what other judges have said.  If a previous court has allowed a field of forensic evidence, subsequent courts will, too.

The article is here.

Note: These issues also apply to psychologists in the courtroom.

Advocacy group raises concerns about psychological evaluations on hundreds of defendants

Keith L. Alexander
The Washington Post
Originally published December 14, 2017

A District employee who has conducted mental evaluations on hundreds of criminal defendants as a forensic psychologist has been removed from that role after concerns surfaced about her educational qualifications, according to city officials.

Officials with the District’s Department of Health said Reston N. Bell was not qualified to conduct the assessments without the help or review of a supervisor. The city said it had mistakenly granted Bell, who was hired in 2016, a license to practice psychology, but this month the license was downgraded to “psychology associate.”

Although Bell has a master’s degree in psychology and a doctorate in education, she does not have a PhD in psychology, which led to the downgrade.

The article is here.

Medical Evidence Debated

Ralph Bartholdt
Coeur d’Alene Press 
Originally posted October 27, 2017

Here is an excerpt:

“The point of this is not that he had a choice,” he said. “But what’s been loaded into his system, what’s he’s making the choices with.”

Thursday’s expert witness, psychologist Richard Adler, further developed the argument that Renfro suffered from a brain disorder evidenced by a series of photograph-like images of Renfro’s brain that showed points of trauma. He pointed out degeneration of white matter responsible for transmitting information from the front to the back of the brain, and shrunken portions on one side of the brain that were not symmetrical with their mirror images on the other side.

Physical evidence coinciding with the findings include Renfro’s choppy speech patterns and mannerisms as well inabilities to make cognitive connections, and his lack of social skills, Adler said.

Defense attorney Jay Logsdon asked if the images were obtained through a discredited method, one that has “been attacked as junk science?”

The method, called QEEG, for quantitative electroencephalogram, which uses electrical patterns that show electrical activity inside the brain’s cortex to determine impairment, was attacked in an article in 1997. The article’s criticism still stands today, Adler said.

Throughout the morning and into the afternoon, Adler reiterated findings, linking them to the defendant’s actions, and dovetailing them into other test results, psychological and cognitive, that have been conducted while Renfro has been incarcerated in the Kootenai County Jail.

The article is here.

Crossing the Line: Daubert, Dual Roles, and the Admissibility of Forensic Mental Health Testimony

Sara Gordon
Cardozo Law Review, Vol. 37, No. 4, 2016

Abstract:    

Psychiatrists and other mental health professionals often testify as forensic experts in civil commitment and criminal competency proceedings. When an individual clinician assumes both a treatment and a forensic role in the context of a single case, however, that clinician forms a dual relationship with the patient — a practice that creates a conflict of interest and violates professional ethical guidelines. The court, the parties, and the patient are all affected by this conflict and the biased testimony that may result from dual relationships. When providing forensic testimony, the mental health professional’s primary duty is to the court, not to the patient, and she has an obligation to give objective and truthful testimony. But this testimony can result in the patient’s detention or punishment, a legal outcome that implicates the mental health professional’s corresponding obligation to “do no harm” to the patient. Moreover, the conflict of interest created by a dual relationship can affect the objectivity and reliability of forensic testimony.

A dual clinical and forensic relationship with a single patient is contrary to quality patient care, and existing clinical and forensic ethical guidelines strongly discourage the practice. Notwithstanding the mental health community’s general consensus about the impropriety of the practice, many courts do not question the mental health professional’s ability to provide forensic testimony for a patient with whom she has a simultaneous clinical relationship. Moreover, some state statutes require or encourage clinicians at state-run facilities to engage in these multiple roles. This Article argues that the inherent conflict created by these dual roles does not provide a reliable basis for forensic mental health testimony under Federal Rule of Evidence 702 and should not be admitted as reliable expert testimony by courts. Because dual relationships are often initiated due to provider shortages and the unavailability of neutral forensic examiners, this Article will also discuss the use of telemedicine as a way to provide forensic evaluations in under served areas, especially those where provider shortages have prompted mental health professionals to engage in dual clinical and forensic roles. Finally, this Article argues that courts should exercise their powers more broadly under Federal Rule of Evidence 706 to appoint neutral and independent mental health experts to conduct forensic evaluations in civil commitment and criminal competency proceedings.

The article is here.

Reversing the legacy of junk science in the courtroom

By Kelly Servick
Science Magazine
Originally published March 7, 2016

Here is an excerpt:

Testing examiner accuracy using known samples can give the judge or jury a sense of general error rates in a field, but it can’t describe the level of uncertainty around a specific piece of evidence. Right now, only DNA identification includes that measure of uncertainty. (DNA analyses are based on 13 genetic variants, or alleles, that are statistically independent, and known to vary widely among individuals.) Mixtures of genetic material from multiple people can complicate the analysis, but DNA profiling is “a relatively easy statistical problem to solve,” says Nicholas Petraco, an applied mathematician at City University of New York’s John Jay College of Criminal Justice in New York City. Pattern evidence doesn’t operate under the same rules, he says. “What’s an allele on a tool mark?”; “What’s an allele on a hair or fiber?”

The article is here.

Note: This article addresses evidence such as fingerprints, that can have error. What does this say about neurological or psychological "evidence" in terms of accuracy, validity, and reliability?

The Brain Gets Its Day in Court

By Greg Miller
The Atlantic
Originally published February 29, 2016

Here is an excerpt:

A handful of cases have made headlines in recent years, as lawyers representing convicted murderers have introduced brain scans and other tests of brain function to try to spare their client the death penalty. It didn’t always work, but Farahany’s analysis suggests that neuroscientific evidence—which she broadly defines as anything from brain scans to neuropsychological exams to bald assertions about the condition of a person’s brain—is being used in a wider variety of cases, and in the service of more diverse legal strategies, than the headlines would suggest. In fact, 60 percent of the cases in her sample involved non-capital offenses, including robbery, fraud, and drug trafficking.

Cases like Detrich’s are one example. Arguing for ineffective assistance of counsel is pretty much a legal Hail Mary. It requires proving two things: that the defense counsel failed to do their job adequately, and (raising the bar even higher) that this failure caused the trial to be unfairly skewed against the defendant. Courts have ruled previously that a defense attorney who slept through substantial parts of a trial still provided effective counsel. Not so, at least in some cases, for attorneys who failed to introduce neuroscience evidence in their client’s defense.

The article is here.

Federal judge says neuroscience is not ready for the courtroom--yet

By Kevin Davis
ABA Journal
Originally published October 20, 2015

Here is an excerpt:

Rakoff, who long has had an interest in neuroscience and is a founding member of the MacArthur Foundation Research Network on Law and Neuroscience, says that judges are still cautious about allowing neuroscientific evidence in court. Criminal lawyers, for example, have introduced brain scans to show a defendant’s brain dysfunction, most often as mitigation in death penalty hearings. Lawyers also have tried to introduce brain scans to prove the existence of pain and as evidence for lie detection.

“The attitude of judges toward neuroscience is one of ambivalence and skepticism,” Rakoff said. “You ask them about the hippocampus, they say it’s something at the zoo.”

The entire article is here.

Deconstructing the seductive allure of neuroscience explanations

Weisberg DS, Keil FC, Goodstein J, Rawson E, Gray JR.
Judgment and Decision Making, Vol. 10, No. 5, 
September 2015, pp. 429–441

Abstract

Explanations of psychological phenomena seem to generate more public interest when they contain neuroscientific information. Even irrelevant neuroscience information in an explanation of a psychological phenomenon may interfere with people's abilities to critically consider the underlying logic of this explanation. We tested this hypothesis by giving naïve adults, students in a neuroscience course, and neuroscience experts brief descriptions of psychological phenomena followed by one of four types of explanation, according to a 2 (good explanation vs. bad explanation) x 2 (without neuroscience vs. with neuroscience) design. Crucially, the neuroscience information was irrelevant to the logic of the explanation, as confirmed by the expert subjects. Subjects in all three groups judged good explanations as more satisfying than bad ones. But subjects in the two nonexpert groups additionally judged that explanations with logically irrelevant neuroscience information were more satisfying than explanations without. The neuroscience information had a particularly striking effect on nonexperts' judgments of bad explanations, masking otherwise salient problems in these explanations.

The entire article is here.

“Soft” vs. “Hard” Psychological Science in the Courtroom

By Geoffrey D. Munro and Cynthia A. Munro
The Jury Expert
Originally published May 31, 2015

Background

The terms "soft science" and "hard science"are commonly applied to different scientific disciplines, and scientists have investigated and theorized about features that apply when placing scientific disciplines on a soft-hard continuum (e.g., Simonton, 2004, 2006, 2009). In the minds of laypeople, however, the difference may lie in the more simple perceptions of different scientific disciplines. The very words themselves, “soft” and “hard”, may hint at different reputations. Soft sciences are fuzzy and less rigid, suggesting lower reliability, validity, and rigor than hard sciences possess.

Psychological science includes research that is usually considered to be on the softer side of the continuum (e.g., behavioral science) as well as research that is usually considered to be on the harder side (e.g., neuroscience). However, the name “psychology” appears to elicit less respect from the general public than many other sciences. Survey data show that psychology was judged to be less important than disciplines like biology, chemistry, economics, medicine, and physics by both a random sample of adults as well as by full-time university faculty (Janda, England, Lovejoy, & Drury, 1998).

The entire article is here.

Alzheimer's research fraud case set for trial

By Toni Clarke
Reuters Health News
Last updated May 11, 2012

Two Harvard teaching hospitals and a prominent Alzheimer's disease researcher accused of using falsified data to obtain a government research grant are set to stand trial after a federal appeals court said this week that a lower court erred when it dismissed the case.

The lawsuit accuses Marilyn Albert, a former professor of psychiatry at Harvard Medical School, and Massachusetts General Hospital (MGH), where she was conducting research, of submitting a grant application based on manipulated data.

The data showed results from a trial were scientifically significant when in fact they were not, according to the lawsuit.

Brigham and Women's Hospital, which collaborated on the research, is also a defendant in the case. The lawsuit was brought in 2006 under the False Claims Act, a 150-year-old federal law designed to recover government funds appropriated through fraud.

This is the first time a lawsuit dealing with alleged scientific fraud has been allowed to progress to trial under the False Claims Act, according to Michael Kohn, a lawyer with Kohn, Kohn & Colapinto in Washington, D.C.

The entire story is here.

Providers to Test Power of Apology in Malpractice Claims

By Robert Lowes

Medscape Medical News

Originally published April 27, 2012

The Massachusetts Medical Society (MMS) wants to prove that clinicians and hospitals can keep medical malpractice out of the courtroom by owning up to their mistakes with apologies — and sometimes cash as well.

The result, says the MMS, will be not only fewer lawsuits but also improved patient safety, less defensive medicine, and lower costs.

Earlier this month, the MMS and 5 other state healthcare organizations announced the start of a pilot program to promote a process called Disclosure, Apology, and Offer, or DA&O. It's a kinder and gentler approach to medical liability reform compared with measures such as caps on noneconomic (pain and suffering) and punitive damages, which are viewed in some quarters as abridging the legal rights of patients.

Like most of organized medicine, MMS supports these traditional liability reforms, but it also sees merit in avoiding the courts.

"The current liability system impedes open communication," says Alan Woodward, MD, a past MMS president and chair of its professional liability committee. "It creates a culture of blame, finger-pointing, and secrecy. We're trying to turn that around into an advocacy system that supports both patients and providers."

The entire article is here.

Thanks to Gary Schoener for this lead.

California patients can sue if personal data are released during billing disputes

The California Supreme Court determines that physicians and others are liable if the information is given to credit agencies

By Alicia Gallegos

amednews.com

The Supreme Court of California has ruled that patients can sue doctors, debt collectors and others who disclose their medical information to credit agencies during billing disputes.

The ruling exposes California physicians to more lawsuits and hinders their ability to collect outstanding bills, said an attorney involved in the case.

In the past, the Fair Reporting Credit Act protected doctors from lawsuits over such disclosures. The law says if doctors or others receive notice that a debt is in dispute, they are required to furnish accurate and complete information about the debt to the requesting credit agency.

But in its June 16 opinion, the state's high court said a more stringent California law on patient privacy trumps the FRCA, preventing doctors from releasing any confidential information to creditors without patient consent.

"It really inhibits the ability of health care providers to document the basis for [debt] claims," said Charles Messer, an attorney who represented the bill collector, Stewart Mortenson. "It makes collecting medical debts much more difficult."

The decision stems from a billing dispute between Robert Brown and his dentist, Rolf Reinholds. In 2000, Brown was billed for a treatment he said he never received. The bill was referred to a debt collector, who contacted Reinholds for more information after Brown denied the debt, according to court records.

Reinholds sent Mortenson a copy of Brown's medical history. The record included medical histories of Brown's children, which were in the same file. As the billing dispute continued, Mortenson disclosed the medical information to three national consumer reporting agencies.

Brown sued Reinholds and Mortenson, alleging that he never consented to the record disclosure. Among other details, the information included Brown's Social Security number, address, date of birth and telephone number, court records show. Reinholds was dismissed from the suit after settling out of court, according to attorneys in the case.

Lower courts cited federal law

The trial and appellate courts ruled in favor of Mortenson. The lower courts said the confidential information provided was protected by the FRCA.

But the Supreme Court said the law is preempted by the stricter state measure, and that Brown's original claim could move forward. The court said the state privacy law also trumps the Health Insurance Portability and Accountability Act, which allows for certain administrative disclosures.

Brown, an attorney who represented himself, said the high court analyzed the facts carefully and came to the correct conclusion.

"It means people working with health care records in California have to be very careful they are not violating patients' confidentiality," he said. "Without patients' consent, medical information, including a patient's identifying [details], cannot be turned over to credit agencies."

The decision restricts the free flow of information needed for fair and accurate credit reporting, Messer said. Doctors are now subject to legal claims for complying with federal law and providing debt information, he added.

"It becomes a Catch-22 and exposes health care providers to liability," he said.

Messer is considering asking the U.S. Supreme Court to review the case.

Additional Information

Robert A. Brown v. Stewart Mortenson, Supreme Court of California, June 16 (www.courtinfo.ca.gov/opinions/documents/S180862.PDF)