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Stanford Report, October 10, 2007

Neuroscience and law project could help courts determine truth

Hank Greely

William Newsome

BY MITZI BAKER

If lawyers and judges could peer into the brains of trial witnesses to see if they are lying or feeling as much pain as they say they are, their jobs might be a lot easier. In an effort to apply neuroscience's ability to glimpse the inner workings of brains to some of the slippery questions of legal decision-making, three Stanford faculty have signed on to the Law and Neuroscience Project.

Funded by a three-year, $10 million grant from the John D. and Catherine T. MacArthur Foundation, the project was launched Oct 9. Headquartered at UC-Santa Barbara, the Law and Neuroscience Project combines the expertise of neuroscience and psychology researchers with that of lawyers, judges and philosophers.

"Neuroscientists have been doing really fascinating and important research, but they haven't been guided by or particularly aware of what the law might find useful or interesting," said Hank Greely, JD, the Deane F. and Kate Edelman Johnson Professor of Law and co-director of one of the project's three working groups.

"What is unique about this project is that it is more focused on answering questions that the law will actually ask," Greely said. "Maybe it will turn out that the law has no interest in the answers, or maybe it will turn out that the answers will revolutionize the law."

The two other Stanford researchers already involved in the project are William Newsome, PhD, professor and chair of neurobiology, and Anthony Wagner, PhD, associate professor of psychology.

"The MacArthur Law and Neuroscience Project promises to propel increased appreciation of the implications of neuroscience data for both legal theory and practice," said Wagner.

The project will initially consist of three working groups. The three Stanford participants will be in the group looking at people with abnormal brain function (people with brain damage, who are mentally ill, juveniles or are incompetent in some way). The other two working groups will address decision-making in normal people and addiction.

Greely said he expects more Stanford researchers will join the various studies. The project already includes participants from more than 20 universities.

Each working group will be directed by a neuroscientist and a legal expert and include up to 15 neuroscientists, legal scholars, philosophers and practitioners involved in the legal system, including a judge. Greely will co-direct his working group with Michael Gazzaniga, PhD, professor of psychology at UCSB, where he heads the new SAGE Center for the Study of the Mind. Gazzaniga spearheaded the overall project.

This project will address topics limited only be the imaginations of the people involved. Greely outlined a few that members are pursuing:

  • Using functional MRI for lie detection. "We don't know whether it works at all, let alone in a real-world setting," said Greely. "It would be nice to have some studies that produce evidence that judges and lawyers would want to look at in deciding whether this kind of evidence could be admitted in court."
  • Psychopathy. Legal professionals are interested in whether the disorder can be detected by neuroimaging and other neuroscience techniques, what causes it and the implications for the criminal justice system.
  • Addiction. Some researchers are developing vaccines to combat addiction, and Greely pointed out that even if they work well, there's no agreement on how they should be used. "Should they be added to regular childhood vaccinations so you get vaccinated against polio, diphtheria, pertussis, tetanus and cocaine?" he asked.
  • Minimally conscious and vegetative states. Research exploring the level of consciousness in an unconscious person could have implications for end-of-life issues.
  • Pain. "There is some evidence that neuroimaging might be able to determine whether somebody is truly feeling pain or not," said Greely. "The degree of pain and suffering to be awarded as damages is a big issue in many court cases."
  • Memory. Specific issues include understanding how the brain regulates memory and how that changes when brain function is impaired; determining whether accurate and false memories can be distinguished using brain imaging, and determining if someone really is remembering when they say, "I can't recall."

    • "I think this is the century of the brain," said Greely. Scientists now understand infinitely more than they did even 20 years ago, and even that knowledge constitutes only a small fraction of determining how the brain works. Future developments in understanding brain function will have huge implications for society.

    "Human society is really the society of human brains," he said. "It is our brains—or the minds those brains generate—that are what we care about in people, so anything that changes how well we understand the brain is likely to have major effects on how society functions."