Neurolaw: Brains in the Courtroom

This is a version of a post originally hosted at The Neuroethics Blog.

The field of neurolaw, which is exactly what it sounds like- neuroscience and law, has been growing rapidly over the past decade. Most of the discussions in neurolaw focus on how, and if, new discoveries in neuroscience will affect legal definitions of responsibility and culpability by changing the way we understand how the decision to commit a crime is made. However- in the past year there have been several studies looking at another side of brains the courtroom: that is, the neuroscience of judgment itself. These studies are exploring how people consider evidence and how they balance moral and ethical decisions against empathic and sympathetic reactions. This new work opens up new avenues for interventions from neurolaw and neuroethics around the construction and use of institutions like the judge and the jury.

Science says: Lock ’em up. (image courtesy of Special Collections, University of Houston Libraries)

Although I want to focus here on what I think is a new area of neurolaw, I’ll begin with a recent study that exemplifies the sort of work that is traditionally considered in the field. In August of 2012, Science published an article by Lisa G. Aspinwall, Teneille R. Brown and James Tabery of the University of Utah titled “The Double-Edged Sword: Does Biomechanism Increase or Decrease Judges’ Sentencing of Psychopaths?” This study focuses on the sentencing portion of a criminal trial, where judges decide how to punish a person who has already been convicted. They weigh aggravating factors (basically evidence that the person should get a longer sentence) against mitigating factors (basically, evidence that the person should get a shorter sentence.) In this study, researchers gave 181 trial judges a hypothetical case (based on a real case, Mobley v. State)[1] where the convicted person had been diagnosed with psychopathy. All judges received the same psychiatric testimony of diagnosis, but some were also given additional proof of psychopathy in the form of  “expert testimony from a neurobiologist who presented an explanation of the biomechanism contributing to the development of psychopathy (here, low MAOA activity, atypical amygdala function, and other neurodevelopmental factors).” (846) Judges who received the version with the additional biomedical information were more likely to list mental illness or psychopathy as a mitigating factor. One judge, quoted in the article, said that the biomedical evidence “makes possible an argument t that psychopaths are, in a sense, mo- rally ‘disabled’ just as other people are physically disabled.” (847) Judges who received the additional information gave sentences that were, on average, a little over a year shorter.

This study touches on a concept I talked about last month- namely that there is a distinction between innate and acquired mental disorders when it comes to sympathy and empathy. However, unlike what I talked about in that post, this study shows that perhaps it is not the origin of a behavior which is significant, but how tangible the evidence for that behavior is. It is telling that the anonymous judge quoted in the article described psychopathy as a moral disability rather than a moral disorder, seeing morality as a capacity that can be limited with a physical disruption to the limbAlthough the results don’t seem that significant- remember that this study wasn’t about deciding guilt – it is important to note, as the authors themselves do, that the crime they discuss was a particularly violent one and the assailant was presented, in all versions of the case, as entirely lacking in empathy or remorse. Taking that into consideration, the one-year difference in sentencing is a bit more significant, and it is possible that there would be even larger discrepancies in cases that are less violent or less reprehensible. I am interested to see if further work is done.
image courtesy of wikimedia commons
Where Aspinwall et al. focused on the impact of different types of evidence on judgment, the other two studies I want to highlight looked at the neuroscience of judging itself. In February of 2012, Social Cognitive and Affective Neuroscience published an article from a team at George Mason University about the role of oxytocin in the perception of crime. A group of male subjects were given oxytocin (or placebo) and then asked to read a series of descriptions of crimes.[2] They were then asked, as unaffiliated third-parties, to rate the crimes in terms of the degree of harm caused to the victim and then rate how much the offenders deserved to be punished.  The researchers that those administered oxytocin were more likely to see increased harm to the victims but that this did not significantly impact how much they thought the assailants should be punished.[3] The authors of the study emphasized that it was important that the subjects saw themselves as an uninvolved third-party – first, because this removed the confounding factor of personal relationship to either victim or perpetrator, and second, because it more closely mimicked the circumstances of a jury trial.
Leopold and Loeb? The Scopes Monkey Trial? The Massie affair?? (oh wait...)
Clarence Darrow, lawyer most likely to make all sorts of borderline prejudicial remarks. (image in the Public Domain)
In a similar study, published in the March 2012 of Nature Communications, a team of researchers in Japan used fMRI machines to measure neural activity in people while they were making decisions about punishing a convicted murderer. The study was designed to examine how arguments designed to elicit sympathy mapped onto brain regions and, in turn, how those were utilized in the decision making process. The researchers found that, in fact, brain activity was consistent with regions previously associated with sympathy and that the sympathetic response was correlated with
shorter sentences. This left the research team with the following question: Although judges often instruct jury members to disregard certain prejudicial remarks while making their decisions, such as pleas for sympathy or comm
ents not admitted to the record, is it reasonable to ask people to do such a thing?

These studies open a possibility within neurolaw for an examination of the institution of the jury trial, raising important ethical questions about how we, as citizens, make moral judgments, and the level of conscious control we can have over our sympathetic reactions. The jury trial is a sacred institution within United States law, and for good reason.  Yet so far, the nacent field of neurolaw has focused almost exclusively on the impact neuroscientific evidence will have on the courtroom in terms of how it reframes criminal actions. Neuroscience, and most importantly neuroethics, is giving us more information about morality in general. What will happen to the jury trial if it is found that people cannot lay aside urges for sympathy, no matter how they are instructed? Or what if it turns out we are able to judge situations in which we are an uninvolved third-party with more reason than we do situations where we have personal involvement, regardless of the level of empathy we may feel for the persons involved? How will this work change the rules of evidence and criminal procedure, if at all? And should they?


[1] In 1995, Stephen Anthony Mobley was found guilty of the murder of John C. Collins. The case was one of the first to introduce the concept of a dysfunctional MAO-A gene as a factor in the courtroom. Mobley was sentenced to death and executed in 2005. The hypothetical case used some of the same descriptive details, (e.g., the assailant attacked his victim during a restaurant robbery) but, importantly, was not a murder conviction, and thus, not a capital crime.

[2]They chose men because previous investigations have shown that men frequently score lower on standard tests of empathy than women.

[3] One final point about this study that was interesting to me- although it seems, on the surface, to be more relevant to a study of how potential jurors make decisions, one of the recommendations based on the findings is for potential treatment of psychopaths.

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