Daubert and Frye: Neuroscience in the Courtroom?

I recently found myself thinking about how we would allow evidence dealing with neuroscience into the courtroom. The question interested me because I wanted to know how our judicial system would differentiate between real and useful evidence versus what may seem no better than allowing a Shaman enter to argue a point based on "evidentiary mysticism".  What I found was that there are two different legal rules for allowing use of neuroscience evidence. The first is the Frye rule and the second is the Daubert rule. Daubert applies in Federal Courts and in States that have adopted it, while the Frye rule applies in all other courts.

The difference between the texts of the standards can seem nuanced but presents two different outcomes judicially. Joseph T. Walsh has a great primer on the two rules if you would like to explore them more, but the issue that I would like to deal with here is simple and does not require a complete knowledge of both rules. Basically you just have to understand the common interpretation of both rules.



For our purposes Frye states that: “Where novel scientific evidence is at issue, the Frye inquiry allows the judiciary to defer to scientific expertise precisely as to whether or not it has gained “general acceptance” in the relevant field. The trial court’s gatekeeper role in this respect is conservative, thus helping to keep “pseudoscience” out of the court”.



On the other hand Daubert states that: “General acceptance is an austere standard absent from and incompatible with the Rules of Evidence. “Scientific knowledge” must be derived from scientific method supported by “good grounds” in validating the expert’s testimony, establishing a standard of “evidentiary reliability”.



What we are concerned with is that under the latter rule the trial judge acts more as a gatekeeper. In this role s/he acts to keep evidence out of the courtroom, regardless of whether society has deemed it generally acceptable, because lay jurors should not consider neuroscience evidence unless it is deemed relevant and reliable by the judge. At first glance the change in rules stands against the beliefs that I hold. This is because, like most people, I believe that every American citizen is supposed to be guaranteed a right to a jury trial, but with our newer rule a judge can simply toss evidence out based on his subjective valuation of the evidence presented before him. This in effect denies someone a trial on that evidence.

Political beliefs aside we should still evaluate the rules objectively and neuroscience is but one method of looking at them. So what does neuroscience tell us about the two rules? Is a judge better suited to deal with judging neuroscientific evidence than a jury? To me the answer is a clear “yes”. The evidence I have found points to a jury being susceptible to being fooled by such evidence. For example, Weisberg et al. found that non-experts who are given the task to choose between two explanations for a problem view explanations with irrelevant neuroscience information as more satisfying than explanations without (1). McCabe and Castel published similar findings when looking at the effect that actual brain images had on our reasoning. They found that, when presenting articles summarizing cognitive neuroscience, articles featuring brain images received higher ratings with regards to scientific reasoning "as compared to articles accompanied by bar graphs, a topographical map of brain activation, or no image." (2)



This effect is explained by Jonathan Marks who issued a warning against what J.D. Trout has termed "explanatory neurophilia." (3) In coining this term Trout warns us that when faced with evidence, of any kind, "the promise of cognitive tractability enhances fluency, but not necessarily accuracy."(4) Marks uses Troudt's view to criticize the use of neuroscience in the national security apparatus and issues a warning against the fact that brain images are partly open to interpretation by experts and are ripe for misuse by government officials as a tool of interrogation (5).



Although I find Mark’s and Troudt’s arguments interesting I do not believe that we should be completely dissuade from using neuroscientific evidence in a court of law. This is because as Weisberg et al. found there is a limit to the impact that superfluous neuroscientific information can have on our judgments, and there is also a noticeable benefit to be gained from extended and specific training on the judgment of such explanations (6).  It is clear that neuroscience provides us with a clear-cut case in which the Frye rule as a standard is not as efficient as that of Daubert. This is because Daubert allows the judge to play a greater gate-keeping roll when allowing evidence into the courtroom. The judge, who we hope is an expert in dealing with such evidence, is less likely to face the same explanatory neurophilia which jurors and laymen are victim to. The Supreme Court agreed with this assessment in Allison v. McGhan Med. Corp., 184 F.3d 1300 (1999) when it stated that:

"While meticulous Daubert inquiries may bring judges under criticism for donning white coats and making determinations that are outside their field of expertise, the Supreme Court has obviously deemed this less objectionable than dumping a barrage of questionable scientific evidence on a jury, who would likely be even less equipped than the judge to make reliability and relevance determinations and more likely than the judge to be awestruck by the expert's mystique."

Even though giving the judge ultimate deciding authority supports the centralization of decision making in our court system, I wholeheartedly agree with the decision made in the Allison vs. McGhan Med. Corp. case. While as an individual, I typically advocate for a more democratic court system I believe this is a clear-cut situation in which my philosophical beliefs stand against reality.



With that said, however, I am curious. Faced with my arguments above, what do you, the reader, make of it all? Was moving away from Frye a good idea based on what we know of how our brains work? Can you suggest a more efficient way of evaluating scientific evidence?



--Jamie Witter (Guest Writer)

Law Student, Georgia State University






Want to cite this post?


Witter, J. (2012). Daubert and Frye: Neuroscience in the Courtroom? The Neuroethics Blog. Retrieved on
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http://www.theneuroethicsblog.com/2012/03/daubert-and-frye-neuroscience-in.htm





1. Weisberg, D. S., Keil, F. C., Goodstein, J., Rawson, E., & Gray, J. R. (2008). The seductive allure of neuroscience explanations. Journal of cognitive neuroscience, 20(3), 470-7. doi:10.1162/jocn.2008.20040

2. McCabe, D. P., & Castel, A. D. (2008). Seeing is believing: the effect of brain images on judgments of scientific reasoning. Cognition, 107(1), 343-52. doi:10.1016/j.cognition.2007.07.017

3. Marks, J. H. (2010). A Neuroskeptic ’ s Guide to Neuroethics and National Security. Defense, 1(2), 4-12.

4. Trout, J. D. (2008). Seduction without cause: uncovering explanatory neurophilia. Trends in cognitive sciences, 12(8), 281-2. doi:10.1016/j.tics.2008.05.004

5. Marks, J. H. (2010). A Neuroskeptic’s Guide to Neuroethics and National Security. Defense, 1(2), 4-12.

6. Weisberg, D. S., Keil, F. C., Goodstein, J., Rawson, E., & Gray, J. R. (2008). The seductive allure of neuroscience explanations. Journal of cognitive neuroscience, 20(3), 470-7. doi:10.1162/jocn.2008.20040

Editor's note: For more information on the McCabe & Castel article, please see our post here.  

Also, the Emory Neuroscience Graduate Students in partnership with Emory's Neuroethics Program will be hosting a symposium on this topic on May 25th: The Truth About Lies: the Neuroscience, Law, and Ethics of Lie Detection Technologies featuring  Drs. Hank Greely, director of the Center for Law and Biosciences at Stanford Law School, Daniel Langleben, a professor of Psychiatry at University of Pennsylvania and pioneer of using fMRI to detect lies, and Steven Laken, founder, president, and CEO of Cephos; a company that markets the use of fMRI for courtroom lie detection. Stay tuned for more information.