Neurolaw: Brains in the Courtroom

Regular readers of this blog know we often touch on issues
about law and neuroscience: whether 
it’s about crime, the lie detection seminar Emory hosted last spring, or
work on ethics and free will. (Also, spoiler alert, neurolaw is to be the focus
of our next journal club meeting- please come!) 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 limb. Although 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.

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.

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 comments 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?

Want to cite this post?


Cipolla , C. (2012). Neurolaw: Brains in the Courtroom. The Neuroethics Blog. Retrieved on
, from http://www.theneuroethicsblog.com/2012/10/neurolaw-brains-in-courtroom.html

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[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.