Morris Hoffman, a trial judge in Colorado's 2nd Judicial Court District in Denver, has just finished giving instructions to a jury in a murder trial. “Most jurors go into a murder trial, and any criminal trial, for that matter, thinking that it will be a whodunit — that they will have to figure out who really committed the crime,” he said. “But they're often shocked to find out that what they will usually be determining is the difference between first-degree murder, second-degree murder, and manslaughter. And that typically has nothing to do with what happened but everything to do with what was inside the defendant's head when it happened.”
With that in mind, Judge Hoffman, an expert in law and biology and a member of the John D. and Catherine T. MacArthur Foundation's Research Network on Law and Neuroscience, was particularly keen to talk to Neurology Today about the ways in which brain science could lend new insights into criminal justice — a topic that PBS recently took on with its two-part series “Brains on Trial with Alan Alda.” [Actor Alda has hosted several other science programs and is helping to develop programs that enable scientists to communicate more effectively with the public as a visiting professor and founding board member of Stony Brook University's Alan Alda Center for Communicating Science.]
“Brains on Trial” centers around a fictional crime: a convenience store robbery in which the clerk's wife is shot and left in a coma. During the course of the “trial” — in which real practicing attorneys and a real federal judge played their appropriate roles — Alda talks with leading neuroscientists, neuropsychologists, and other researchers about the ways in which functional MRI, PET scans, and related imaging tools could potentially illuminate questions of what a defendant intended when he pulled a trigger, or whether or not racial bias played a role in evaluating a witness's credibility. (More insights into “Brains on Trial,” including video excerpts as well as the full episodes, are available online at http://brainsontrial.com.)
HOW WELL DID YOU THINK THE PROGRAM ADDRESSED THE CURRENT STATE OF “NEUROLAW” AND WHAT BRAIN IMAGING TECHNIQUES CAN AND CAN'T DO IN THE COURTROOM?
I had low expectations. I thought it was going to be sort of dumbed down — the neuroscience certainly, and the law probably — but once I saw the program, I didn't think that either discipline was dumbed down. They really did a terrific job. This is such a fast-moving area, and several new experiments that we're doing about intention were left out, but then again, some new experiments that I wasn't aware of were also included, such as Elizabeth Phelps' work on the amygdala's involvement on implicit racial bias. [For more on Dr. Phelps' work, see “LINK UP FOR MORE INFORMATION.”]
A LOT OF “BRAINS ON TRIAL” CENTERS ON THE QUESTION OF INTENT: WHETHER OR NOT THE “DEFENDANT” INTENDED TO SHOOT THE SHOPKEEPER'S WIFE, OR WHETHER IT WAS UNINTENTIONAL. WHY IS THAT SO IMPORTANT, AND WHAT CAN BRAIN SCIENCE TELL US?
The program necessarily had to abbreviate some things, and while it talked about the difference between purposeful and accidental acts, there are states of mind that the law recognizes in between accidental and purposeful. One is reckless and the other is knowing. Reckless is accidental, but grossly accidental — a conscious disregard of unacceptable risk. Knowing is hard to describe, but one example in the model penal code is someone who's trying to spring a comrade out of prison and does it by blowing up a prison wall where he knows there's a guard walking across it almost all of the time. His purpose is not to kill the guard; he'd be just as happy to blow up the wall without the guard dying.
WHY ARE ALL THESE DISTINCTIONS IMPORTANT?
They can make a vast difference in sentencing. For first-degree murder, a purposeful crime, the punishment for a non-juvenile in my state is mandatory life without parole. In the “Brains on Trial” case, if the jury found that the defendant was reckless when he turned around with his finger on the trigger, but did not purposefully kill the storeowner's wife, that would be manslaughter in most jurisdictions, and I could even give probation.
WHAT ARE SOME OF THE EXPERIMENTS YOU'RE DOING THAT INVOLVE THE BRAIN AND INTENT?
One of them involves sample jurors. The first part of the experiment is just behavioral: we wanted to know whether ordinary people, if given crime scenarios where we signaled to them what the defendant's mental state was — without giving legal words — could really distinguish these four states. I was sure that our subjects would have problems with purposeful versus knowing. But they had no problem with that, or with distinguishing recklessness (causing harm by consciously disregarding a substantial risk) from negligence (causing harm by taking a substantial risk the defendant was unaware of). But they were terrible at distinguishing knowing from reckless, which as a sitting trial judge is concerning to me, because it's the difference between 2nd-degree murder and manslaughter, or the possibility of 48 years in the pen versus probation. [These findings appear in the article, “Sorting Guilty Minds,” in the November 2011 issue of New York University Law Review.]
The second phase of the study involves neuroimaging. We did the same experiment, read them the same hypotheticals, and then used functional MRI to see if different “blame circuits” are working as they consider a reckless crime versus a knowing crime. If the subjects' response to reckless versus knowing looks different on fMRI, but they're still punishing them the same, that suggests that the problem may be with the design of our study, or with the technical way the law defines these states of mind. But if people's brains when judging reckless and knowing look exactly the same, it might actually suggest a deeper problem with the law and maybe even that we should abolish this distinction, at least in homicide cases.
[Judge Hoffman expects the results of that phase of the study to be published soon.]
“BRAINS ON TRIAL“ ALSO LOOKS AT DIFFERENT WAYS THAT IMAGING COULD BE USED TO ILLUMINATE A SUSPECT'S MENTAL STATE, SUCH AS DETECTING AUTOBIOGRAPHICAL MEMORIES USING NEURAL PATTERN RECOGNITION. ARE YOU DOING SOMETHING SIMILAR?
This is very interesting stuff. On the TV show, they included [cognitive neuroscientist] Anthony Wagner, PhD, from Stanford. With his pattern recognizer program, he can tell through brain imaging if people really do recognize a face or a place, even if they say they can't or think they can't. This could eventually have real significance in trials — as the program mentions, eyewitness testimony is the bread and butter of the criminal justice system, and witnesses sometimes get it wrong (in both directions).
But trying to peer into the minds of defendants about past intentions seems much harder than peering into the minds of witnesses about past autobiographical memories. The challenge in the experiments on states of mind is trying to induce specific mental states in subjects. In one of our experiments, we've designed an economic game. Subjects are told that they're taking a suitcase across a border, and given differing information about the chances that their suitcase has contraband. We're trying to induce the mental states of purposeful vs. knowing vs. reckless, and illuminate that using fMRI to potentially identify neural signatures of a wrongdoer's mental state. These are just the very first baby steps in what might become or might never be a science of intention.
Lie detection — whether of a witness or a defendant — is another thing entirely. We may get there.
THAT'S HARD TO BE CERTAIN OF, ISN'T IT? IN “BRAINS ON TRIAL,” ALDA IS ASKED TO TAKE EITHER A RING OR A WATCH FROM A LOCKER AND HIDE IT IN A DRAWER. THE fMRI AS A LIE DETECTOR CORRECTLY IDENTIFIES THE RING AS THE ITEM ALDA TOOK. BUT STANFORD'S DR. WAGNER POINTED OUT THAT PUBLISHED STUDIES SUGGEST THAT LEVEL OF ATTENTION AND RICHNESS OF MEMORY, RATHER THAN FALSEHOOD VERSUS HONESTY, MAY BE WHAT SPARKS THE fMRI RESPONSE.
That's correct. There are a lot of reasons why the lie detection technology, in my view, is not there yet, including the problem of the richness of the real world versus the simple watch-versus-ring choice presented in the program. In addition, as one of the commentators pointed out, induced lies — lies with permission — are much less morally salient than when you're really lying and having a stake in it. We all know that that just feels different. You're not violating any moral norms when an experimenter gives you permission to lie. So it's very hard to determine what we're seeing with these scans.
WHERE IS IMAGING TECHNOLOGY LIKE THIS MOST LIKELY TO BE USED IN THE COURTROOM?
I think the most likely area is where we've already begun to see it: the sentencing phase, where the strict rules of evidence don't apply. Beyond that, the scientific reliability just isn't there. But in the sentencing phase, neuroimaging and neuroscientific evidence is already coming in, especially in death penalty cases, where there is so much at stake.
DO YOU THINK EVIDENCE BASED ON BRAIN IMAGING WILL EVER BE ABLE TO SURMOUNT THE RELIABILITY AND ACCURACY BARRIERS TO BE INCLUDED IN THE GUILT PHASE OF TRIALS?
The law isn't a monolithic thing run by a couple of people. It's a bottom up thing. Already, individual judges across the country have admitted neuroscientific evidence in the guilt phase of trials. It just hasn't been very often or in very high profile cases. Other judges have kept it out, as in the cases mentioned in the program. But my own view is that, given the current state of the science, I doubt there's a functional neural image that's properly admissible for any important purpose in the guilt phase, where the rules of evidence require reliability not required in the penalty phase.
But we also have to remember that functional neuroimaging is really new. I'd be shocked if, in a decade, there aren't some psychiatric diagnoses that don't have at least some component of an imaging diagnosis. And again, in the guilt phase, if for example the defendant has raised insanity as a defense — such as a diagnosis of schizoaffective disorder — it will help us as judges to have some neural evidence of that. Now, some of my MacArthur colleagues disagree and say imaging wouldn't add anything to the clinical picture in such cases.
IS THERE THE DANGER, EVEN WITH IMPROVED SCIENTIFIC RELIABILITY, THAT NEUROIMAGING COULD BE GIVEN UNDUE WEIGHT BY JURORS?
There's actually a lot of literature on this problem of whether the image itself is distorting. The studies are really mixed. A couple of studies show that the image just changes everything, and people think there's a lot more there than there really is. More recent studies have shown that neural images don't distort people's view of a condition behind the image. Often, you get the impression that a picture's worth 1,000 words and 900 of them are wrong, but that really isn't the current state of the science. Still, figuring out what's inside someone's head is an enormously hard problem that we've struggled with pretty much since our emergence as a species.
PLEASE TELL US MORE ABOUT THE MACARTHUR LAW AND NEUROSCIENCE PROJECT.
In 2006, the John D. and Catherine T. MacArthur Foundation awarded a five-year, $10 million grant for the study of law and neuroscience. The first group involved included about 40 people — roughly 15 neuroscientists, 15 law professors, five philosophers, and five judges, including, in an honorary capacity, former Justice Sandra Day O'Connor. The director of that project was Michael Gazzaniga, PhD, a renowned cognitive neuroscientist from the University of California, Santa Barbara (often called the father of cognitive neuroscience). Almost all of the experts that appeared in “Brains on Trial” were part of that first effort.
The Foundation awarded a new, smaller grant in 2010, for three years and about $5 million. There are fewer members. By my count, there are about 17 of us, with the same even split between law and neuroscience, and with just two judge-members. The director of this second effort is Owen Jones, a prominent law and biology scholar from Vanderbilt.
My own take on all of this is that the first effort was really more about discipline-building than getting experiments done. We were trying to build this inter-discipline, making connections across this law/science boundary, and even just learning each other's language. The second effort has been much more productive in terms of experimental output.
Judge Hoffman's book, The Punisher's Brain: The Evolution of Judge and Jury, is due out May 2014 from Cambridge University Press. “It's a kind of grand tour of the evolutionary history of blame, punishment, and forgiveness, sprinkled with applications from my 22 years as a trial judge, and ending with a call for some legal reforms,” he explained.
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