Neuroimages in court: not as bad as we thought
So what I usually get from the lawyers I
corner speak with about using brain scans as evidence, it’s mostly hell to the no, because A) we’d need an expert B) experts are expensive C) client is broke. Another response is jurors won’t get it and it will just complicate things. The consensus is jurors can’t handle a brief fMRI lecture to understand it’s meaning and limitations so they’ll just figure it’s all hard science, self evident to the argument being made and treat it like photographic proof. dun dun.
Until recently, a couple of really big studies supported this notion and everyone at the cool table got on board. Brain porn in the court became a thing and whispering sexy hard-sciencey neurobabble in your ear is what it did seducing you with its pretty colored blobs. Then it kinda fell into a place like tween technology can, where we can’t trust it running the streets alone without a decent explanation, some background and a curfew. But new research contradicts this concept “prompting a rethinking of the ‘threat’ of neuroscience in the courtroom”. dun dun. (ok I’ll stop.)
The deal is the initial studies didn’t look at the effect of using the images with mock jurors in. a. full. mock. trial. Srsly, methodologies? Anyway, this article (+1 for the multidisciplinary collabo) gives a detailed overview of 3 new studies that are show findings contradictory to the neurolaw safety dance that’s so trendy. No reason for that link except, it’s the only chance it will ever have. …k, moving on.
I’m all for being cautious, but we are tip toeing, slow poking and dumbing down when what we need is just a little explanation, insight and mostly more experiments designed to replicate a real world trial experience. Showing images and peppering it with a scientific summary is like convicting by confession alone without seeing the interrogation. It turns out:
…in experiments with crimes ranging from homicide to unintentional assault, the authors found no evidence that neuroimages influenced jurors’ decisions about criminal liability or sentences. Convictions and punishments were, however, related to the level of perceived control by the defendant, and this was affected by the presence and kind of expert testimony – but not by neuroimages. -Gurley and Marcus
The next study danced a similar jig when looking at the use of neuroimages in an insanity defense, “Gurley and Marcus did not dissociate the effects of the neuroimage from those of the neurological expert testimony. Schweitzer and Saks did, and found no impact of neuroimages over and above the effects of verbal neuroscience testimony.” Further work can go beyond culpability and look at sentencing as well.
Three recent studies (the 3rd unpublished) have all suggested testimony weighed heavier in juror decision making (exculpatory fashions) than brain scans … and may have me thinking I’ll reopen my expert witness biz. Giddyup.