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Tuesday, October 13, 2009

Neurolaw: Mind readers bustle into the court room

I am sure glad someone is writing about this, though glad it isn't my own job.
The problem is that judges and jurors will mistakenly assume that technologies that are demonstrably valid medical diagnostic tools yield equally valid conclusions when they are used to map the neural correlates of deception and other forms of cognition.
I think what this person is trying to say is this (though he can't just come right out and say it): Neuroscience can tell you if an elderly person's brain problems are the likely cause of serious cognitive deficits. That's very useful; one can make better decisions for that person's care, decisions that respect his dignity too.

If neuroscience claims to tell us whether Jimmy "the jimslamm" is lying, well, yes of course he is.

If his lips are moving and intelligible sounds are coming out of his mouth, he is lying. I've dealt with lots of people like him so I can tell you for free and save you trouble.

But what is he lying about this time? I don't like this new neurolaw craze for a number of reasons. I think Jimmy should just take his chances with a skilled Crown*. A fair fight.

*In Canada, counsel for the prosecution

The Future of Neuroimaged Lie Detection and the Law

Joelle Anne Moreno
Florida International University College of Law

Akron Law Review, Vol. 42, pp. 717-734, 2009
Florida International University Legal Studies Research Paper No. 09-06

Abstract:
Neuroscience will certainly change law. In fact, neuroscience research has the potential to influence a vast range of legal decisions. To the extent that neuroscientists increasingly make claims that neuroimaging reveals cognition, even the most unimaginative prognosticator might predict: (1) the preliminary investigative use of neuroimages to enhance witness interviews and police interrogations (including but not limited to lie-detection), (2) jury selection based on neuroimages that appear to reveal jurors' unconscious stereotypes or biases, and (3) arguments about intent or sentencing based on neuroimage-enhanced explanations of behavior and predictions of dangerousness. In anticipation of a brave new world of neuroscience 'enhanced' law, this Article suggests that if we want to predict or control future social and legal responses to cognitive neuroscience research, we must carefully and explicitly consider two basic preexisting realities: (1) our shared assumptions about the validity of the medical field of neuroscience and the accuracy of diagnostic neuroimaging technologies; and (2) our increasingly frequent exposure (even within the mainstream media) to uncritical reports of cognitive neuroscience research that purports to correlate brain activity with cognition, deception,or social behavior. The risk, is that if we ignore these realities, judges, jurors, and the general public will likely view all or most neuroscience-based evidence as legitimate 'hard' science because researchers rely on technologically sophisticated neuroimaging tools of demonstrated accuracy. The problem is that judges and jurors will mistakenly assume that technologies that are demonstrably valid medical diagnostic tools yield equally valid conclusions when they are used to map the neural correlates of deception and other forms of cognition.
Accepted Paper Series

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