Unfair

by Adam Benforado

  Is a person trying to cover up: Hansen, “True Lies.”

  And could that psychopath: The Royal Society, Brain Waves Module 4, 25–26.

  We’ve known for a long time that: Greely and Illes, “Neuroscience-Based Lie Detection,” 404–05; Hansen, “True Lies.”

  You can render the data unusable: Greely and Illes, “Neuroscience-Based Lie Detection,” 404–05; Canli et al., “Neuroethics and National Security,” 6; Hansen, “True Lies.”

  Changing what you are thinking about: Canli et al., “Neuroethics and National Security,” 6; The Royal Society, Brain Waves Module 4, 8–9. With respect to memory-based approaches to detecting deceit, cognitive neuroscientists have documented that people can alter their neural responses when presented with familiar and unfamiliar faces by thinking about something familiar when looking at an unfamiliar face and focusing on a part of a known face that is novel. In the laboratory, when participants employed these countermeasures, researchers were unable to use the brain scans to determine whether each person was looking at a familiar or unfamiliar face. Cognitive Neuroscience Society, “Memory, the Adolescent Brain and Lying: The Limits of Neuroscientific Evidence in the Law,” ScienceDaily, April 16, 2013, http://www.sciencedaily.com/​releases/2013​/04/130416180039.htm.

  But if you make your brain busier: Greely and Illes, “Neuroscience-Based Lie Detection,” 404–05.

  Conversely, if you carefully memorize: Greely and Illes, “Neuroscience-Based Lie Detection,” 404–05. It is interesting to consider how the race to gain access to revealing brain activity is likely to encourage efforts to develop means to disguise or eliminate that brain activity. Based on initial experiments with animals, it seems probable that it will one day be possible to erase certain memories in humans with the aid of newly developed drugs or technology. Erica J. Young et al., “Selective, Retrieval-Independent Disruption of Methamphetamine-Associated Memory by Actin Depolymerization,” Biological Psychiatry Journal 75 (2014): 100–03; Scripps Research Institute, “Possibility of Selectively Erasing Unwanted Memories,” ScienceDaily, September 10, 2013, http://www.sciencedaily.com/releases​/2013/09/​130910140941.htm?utm_source=feedburner&utm_medium=email&utm_campaign=​Feed%3A+sciencedaily%2Fmind_brain%2Fpsychology+%​28ScienceDaily%3A+Mind+%26+​Brain+News+–+Psychology%29. In one study, researchers were able to eliminate memories associated with methamphetamine use, including objects seen or felt and odors detected, by inhibiting certain molecular activity in the brains of mice and rats that occurs during the maintenance phase of memory formation. Young et al., “Selective, Retrieval-Independent Disruption,” 100–03. Interestingly, the intervention did not appear to disrupt other memories. Young et al., “Selective, Retrieval-Independent Disruption,” 102.

  In the 1990s, attorneys: Wendy Brickell, “Is It the CSI Effect or Do We Just Distrust Juries?” Criminal Justice 23 (2008): 16. Looking at just expert psychological testimony, we have solid evidence that it sways jurors. Cutler and Kovera, “Expert Psychological Testimony,” 55. In one representative experiment, mock jurors presented with a case involving a woman who had killed her abusive husband were more supportive of self-defense claims and more lenient in their ultimate decisions when presented with expert testimony by a psychologist than when no expert opinion was offered. Regina A. Schuller and Patricia A. Hastings, “Trials of Battered Women Who Kill: The Impact of Alternative Forms of Expert Evidence,” Law and Human Behavior 20, no. 2 (1996): 167, 181–85. The influence of the expert was significant, regardless of whether she described matters in terms of “battered woman syndrome” or focused on the husband’s coercion and the wife’s agency. Schuller and Hastings, “Trials of Battered Women Who Kill,” 167, 181–85.

  A decade later, the fears morphed: Deborah R. Baskin and Ira B. Sommers, “Crime-Show-Viewing Habits and Public Attitudes Toward Forensic Evidence: The ‘CSI Effect’ Revisited,” Justice System Journal 31, no. 1 (2010): 97; Brickell, “Is It the CSI Effect,” 11. The experimental evidence documenting “white coat syndrome” and the “CSI effect” has been decidedly mixed, and some critics have argued that these fears are more a reflection of distrust of the jury system and a need to explain unexpected verdicts than anything else. Brickell, “Is It the CSI Effect,” 13, 17; Schauer, “Can Bad Science Be Good,” 1210.

  More recently, researchers have begun looking: David P. McCabe and Alan D. Castel, “Seeing Is Believing: The Effect of Brain Images on Judgments of Scientific Reasoning,” Cognition 107 (2008): 343, 349–51; Deena Skolnick Weisberg et al., “The Seductive Allure of Neuroscience Explanations,” Journal of Cognitive Neuroscience 20, no. 3 (2008): 470, 475–77; John Monterosso, Edward B. Royzman, and Barry Schwartz, “Explaining Away Responsibility: Effects of Scientific Explanation on Perceived Culpability,” Ethics and Behavior 15, no. 2 (2005): 139, 150–54; Nadelhoffer and Sinnot-Armstrong, “Neurolaw and Neuroprediction,” 637–38; Schauer, “Can Bad Science Be Good,” 1210; Sara Reardon, “Courtroom Neuroscience Not Ready for Prime Time,” ScienceInsider (blog), American Association for the Advancement of Science, December 12, 2011, http://news.sciencemag.org/​scienceinsider/​2011/12/courtroom-neuroscience-not-ready​.html?rss=1. Research has shown, for example, that describing MRI images as indicating brain lesions increased the likelihood of finding a defendant not guilty by reason of insanity. Jessica R. Gurley and David K. Marcus, “The Effects of Neuroimaging and Brain Injury on Insanity Defenses,” Behavioral Sciences and the Law 26 (2008): 85, 93–95. That said, a complete picture of how and when neuroscientific evidence can be prejudicial is still emerging and a few of the early studies have drawn criticism for, among other things, design flaws that prevented a fair comparison of neuroscientific evidence with other equivalent evidence. Schauer, “Can Bad Science Be Good,” 1210, 1210 n. 103, 1211 n. 104, 1211 n. 108.

  Brain scans may have: David P. McCabe, Alan D. Castel, and Matthew G. Rhodes, “The Influence of fMRI Lie Detection Evidence on Juror Decision-Making,” Behavioral Sciences and the Law 29 (2011): 566, 572–76, doi: 10.1002/bsl.993.

  In one experiment, significantly more: McCabe, Castel, and Rhodes, “The Influence of fMRI,” 566, 570, 572. In a control condition, no evidence that the defendant was lying was presented. McCabe, Castel, and Rhodes, “The Influence of fMRI,” 570.

  Diagnostic imaging, we assume: At this point, however, it is unclear whether the brain images—the pictures—have an independent influence on people. Building on the general research on the undue influence of images (see, e.g., David A. Bright and Jane Goodman-Delahunty, “Gruesome Evidence and Emotion: Anger, Blame, and Jury Decision-Making,” Law and Human Behavior 30, no. 2 (2006): 183, 197-200; Aura Hanna and Roger Remington, “The Representation of Color and Form in Long-Term Memory,” Memory and Cognition 24, no. 3 (1996): 322, 328–29), researchers have provided some data that the presence of brain images can sway people toward a particular conclusion. McCabe and Castel, “Seeing Is Believing,” 343, 349–51. But more recent work has suggested that brain images may not have an additional effect beyond nonvisual neuroscience-based evidence. N. J. Schweitzer et al., “Neuroimages as Evidence in a Mens Rea Defense: No Impact,” Psychology, Public Policy, and Law 17, no. 3 (2011): 357, 387–90, doi: 10.1037/a0023581; Robert B. Michael et al., “On the (Non)Persuasive Power of a Brain Image,” Psychonomic Bulletin and Review 20 (2013): 720, 722–24.

  In one study, 181 state trial judges: Lisa G. Aspinwall, Teneille R. Brown, and James Tabery, “Supplementary Materials for ‘The Double-Edged Sword: Does Biomechanism Increase or Decrease Judges’ Sentencing of Psychopaths?’ ” Science, August 17, 2012, 6, http://www.sciencemag.org/​content/suppl​/2012/08/15/337.6096​.846.DC1/1219569.Aspinwall.SM.pdf; Lisa G. Aspinwall, Teneille R. Brown, and James Tabery, “The Double-Edged Sword: Does Biomechanism Increase or Decrease Judges’ Sentencing of Psychopaths?” Science 337 (2012): 846, doi: 10.1126/science.1219569.

  According to testimony from: Aspinwall, Brown, and Tabery, “The Double-Edged Sword,” 846.

  In ad
dition, half of the judges: Aspinwall, Brown, and Tabery, “Supplementary Materials,” 10–11; Aspinwall, Brown, and Tabery, “The Double-Edged Sword,” 846.

  The test revealed that Donahue carried: Aspinwall, Brown, and Tabery, “Supplementary Materials,” 11; Aspinwall, Brown, and Tabery, “The Double-Edged Sword,” 846.

  The other half of the judges: Aspinwall, Brown, and Tabery, “The Double-Edged Sword,” 846.

  Judges rated the evidence of psychopathy: Aspinwall, Brown, and Tabery, “The Double-Edged Sword,” 847–48; Benedict Carey, “Study of Judges Finds Evidence from Brain Scans Led to Lighter Sentences,” New York Times, August 16, 2012, http://www.nytimes.com/​2012/08/17/science​/brain-evidence-sways-sentencing-​in-study-of-judges.html?_r=1&pagewanted=all.

  With the source of Donahue’s behavior: Aspinwall, Brown, and Tabery, “The Double-Edged Sword,” 847; Carey, “Study of Judges.” Other researchers have used the term “naïve dualism” to describe the tendency to view criminal behavior as caused when it is linked to a brain characteristic, but intentional when it is linked to psychologically damaging childhood experiences. Monterosso, Royzman, and Schwartz, “Explaining Away Responsibility,” 139, 150–56; John Monterosso and Barry Schwartz, “Did Your Brain Make You Do It?” New York Times, July 27, 2012, http://www.nytimes.com/​2012/07/​29/opinion/sunday​/neuroscience-and-moral-​responsibility.html?_r=1&hp. These scientists found that even when a neural deficiency was described as weakly associated with violent behavior, participants exonerated the defendant more than when he suffered from a psychological problem strongly linked to violence. Monterosso, Royzman, and Schwartz, “Explaining Away Responsibility,” 139, 150–56; Monterosso and Schwartz, “Did Your Brain Make You.”

  The question, of course, is whether: Carey, “Study of Judges.”

  After all, the judges had already: Aspinwall, Brown, and Tabery, “The Double-Edged Sword,” 846–47; Carey, “Study of Judges.”

  It should not make any difference: Aspinwall, Brown, and Tabery, “The Double-Edged Sword,” 847; Carey, “Study of Judges.” More specifically, it seems problematic that the defendant who is described as having “an impaired emotional-processing system” is given a greater sentence than the defendant who is described as having “an impaired emotional-processing system” as a result of carrying a particular gene. Aspinwall, Brown, and Tabery, “Supplementary Materials,” 9–12; Aspinwall, Brown, and Tabery, “The Double-Edged Sword,” 846–47.

  During three days of pretrial testimony: Laris, “Debate on Brain Scans.”

  Now he had to decide: Laris, “Debate on Brain Scans.”

  It was never going to be: Laris, “Debate on Brain Scans.”

  All he asked was that: Laris, “Debate on Brain Scans.”

  No, said Judge Johnson: Laris, “Debate on Brain Scans.”

  Gary Smith was ultimately convicted: Michael Laris, “Ex-Army Ranger Gary Smith Sentenced to 28 Years in Prison in Retrial,” Washington Post, October 15, 2012, http://www.washingtonpost.com/​local/crime/ex-army-​ranger-gary-smith-sentenced-to-28-years-in-prison-in-retrial​/2012/10/15/3e9c2a3e-1712-11e2​-a55c-39408fbe6a4b_story.html; Dan Morse, “The Long Life of a MoCo Homicide Case: Two Trials, Two Appeals, Third Trial on the Horizon,” Washington Post, August 31, 2014, http://www.washingtonpost.com/​local/crime/the-long-life-of-a-moco-​homicide-case-two-trials-two-appeals-third-trial-on-the-horizon​/2014/08/31/fc2c9980-2fc0​-11e4-bb9b-997ae96fad33_story.html.

  On June 12, 2008, in Mumbai: Maharashtra v. Sharma, Sessions Case No. 508/07, June 12, 2008, 55–61, 67 (India), http://court.mah.nic.in/​courtweb/orders/pundcis/​orders/201501005082007​_1.pdf; Erin B. Pulice, “The Right to Silence at Risk: Neuroscience-Based Lie Detection in the United Kingdom, India, and the United States,” George Washington International Law Review 42 (2010): 866.

  Aditi Sharma and Udit Bharati met: Pulice, “Right to Silence at Risk,” 865.

  They dated as students: Pulice, “Right to Silence at Risk,” 865.

  But Aditi soon broke off: Pulice, “Right to Silence at Risk,” 865.

  Aditi and Pravin dropped out of school: Pulice, “Right to Silence at Risk,” 865.

  Six months later, though: Angela Saini, “The Brain Police: Judging Murder with an MRI,” Wired UK, May 27, 2009, http://www.wired.co.uk/​magazine/archive​/2009/06/​features/guilty?page=all; Pulice, “Right to Silence at Risk,” 865.

  Udit would not survive: Saini, “The Brain Police”; Pulice, “Right to Silence at Risk,” 866.

  According to prosecutors, Aditi poisoned: Saini, “The Brain Police”; Pulice, “Right to Silence at Risk,” 866.

  The turning point in the case: Anand Giridharadas, “India’s Use of Brain Scans in Courts Dismays Critics,” New York Times, September 15, 2008, 2, http://www.nytimes.com/​2008/09/15​/world/asia/​15iht-15brainscan.16148673.html?_r=1&pagewanted=2; Maharashtra, Sessions Case No. 508/07, 8.

  As she sat with thirty-two electrodes: Giridharadas, “India’s Use of Brain Scans,” 2.

  “I met Udit at McDonald’s”: Giridharadas, “India’s Use of Brain Scans,” 2.

  According to investigators administering: Giridharadas, “India’s Use of Brain Scans,” 2; Saini, “The Brain Police.” BEOS was developed by Champadi Raman Mukundan, the former head of the clinical psychology department at the National Institute of Mental Health and Neuro Sciences in Bangalore. Giridharadas, “India’s Use of Brain Scans,” 1.

  When she heard the details: Giridharadas, “India’s Use of Brain Scans,” 1–2; Saini, “The Brain Police.”

  Aditi had not just heard: Giridharadas, “India’s Use of Brain Scans,” 2.

  And what is particularly astonishing: Saini, “The Brain Police.”

  The BEOS results provided key evidence: Giridharadas, “India’s Use of Brain Scans,” 2; Pulice, “Right to Silence at Risk,” 866; Maharashtra, Sessions Case No. 508/07, 58–67.

  Because Aditi was later released: Emily Murphy, “Update on Indian BEOS Case: Accused Released on Bail,” Law and Biosciences Blog, Stanford Law School, April 2, 2009, http://blogs.​law.stanford.edu/​lawandbiosciences/​2009/04/02/update-on-indian-beos-case-accused-released-on-bail/; Michael Cook, “Liar, Liar, Brain on Fire!” Mercatornet, June 17, 2010, http://www.mercatornet.com/​articles/view/​liar_liar_brain_on_fire.

  In the United States, courts have resisted: Carey, “Decoding the Brain’s Cacophony,” 4.

  Over the last decade: The Royal Society, Brain Waves Module 4, 13; Jones et al., “Neuroscientists in Court,” 730.

  So, for example, when Grady Nelson: Jones et al., “Neuroscientists in Court,” 730; Greg Miller, “Brain Exam May Have Swayed Jury in Sentencing Convicted Murderer,” ScienceInsider, December 14, 2010, http://news.sciencemag.org/​technology/2010/​12/brain-exam-may-have-swayed​-jury-sentencing-convicted-murderer.

  Two jurors who came out: Jones et al., “Neuroscientists in Court,” 734; Miller, “Brain Exam May Have Swayed Jury.”

  “It turned my decision”: Jones et al., “Neuroscientists in Court,” 734; Miller, “Brain Exam May Have Swayed Jury.”

  “The technology really swayed me”: Jones et al., “Neuroscientists in Court,” 734; Miller, “Brain Exam May Have Swayed Jury.”

  If either of those jurors: Jones et al., “Neuroscientists in Court,” 734; Miller, “Brain Exam May Have Swayed Jury.”

  Although the polygraph has: Grubin and Madsen, “Lie Detection,” 366.

  Polygraphs are regularly used: Grubin and Madsen, “Lie Detection,” 366.

  As we saw in Juan Rivera’s wrongful conviction: Rob Warden, “Juan Rivera Freed After More Than 19 Years Behind Bars for a Crime It Had Long Been Obvious He Could Not Have Committed,” Bluhm Legal Clinic, Northwestern Law, accessed May 17, 2014, http://www.law.​northwestern.edu/​legalclinic/​wrongfulconvictions/​exonerations/il/juan-rivera.html; Duaa Eldeib, “3 Disputed Polygraph Exams in Wrongful Conviction Cases,” Chicago Tribune, March 10, 2013, http://articles.chicagotribune.com/​2013
-03-10​/news/ct-met-polygraph​-fox-rivera-gauger-20130310_1_​polygraph-wrongful-conviction-cases-false-confession-cases.

  Kevin Fox, for instance: Eldeib, “3 Disputed Polygraph Exams”; Fourth Amended Complaint at 12–13, Fox v. Tomczak, No. 04 C 7309, 2006 WL 1157466 (N.D. Ill. Apr. 26, 2006).

  The test administrator, however: Eldeib, “3 Disputed Polygraph Exams”; Fourth Amended Complaint at 12–13, Fox, 2006 WL 1157466.

  With that seemingly devastating strike: Eldeib, “3 Disputed Polygraph Exams”; Fourth Amended Complaint at 15–16, Fox, 2006 WL 1157466. An investigation by the Chicago Tribune in 2013 revealed six apparent wrongful conviction cases implicating the use of the polygraph by police in the Chicago area alone. Duaa Eldeib, “Polygraphs and False Confessions in Chicago,” Chicago Tribune, March 10, 2013, http://articles.chicagotribune.com/​2013-03-10/news/​ct-met-polygraph-confessions-20130310_1_polygraph-unit-chicago-police-police-polygraphists. The report noted the failure of the Chicago police polygraph examiners to follow procedures—like recording all tests and having results reviewed by a second person. Eldeib, “Polygraphs and False Confessions.”

  Polygraphs are a routine part: Grubin and Madsen, “Lie Detection,” 364–65.

  In New Jersey, for example: Chris Megerian, “N.J. Parole Board Says Polygraph Tests Effective in Detecting, Preventing Violations by Sex Offenders,” NJ.com, November 18, 2009, http://www.nj.com/​news/index.ssf​/2009/11/nj_parole_board_study_says_pol.html; Heather Tubman-Carbone, “An Exploratory Study of New Jersey’s Sex Offender Polygraph Policy: Report to the New Jersey State Parole Board,” November 13, 2009, 2, http://media.nj.com/​ledgerupdates_impact/other​/11.18.09%20polygraph%20report.pdf.

  Hooked up to the machine: Megerian, “Parole Board Says Polygraph Tests Effective”; Tubman-Carbone, “An Exploratory Study,” 9.