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Brains In The Dock

Publication Date: 
April 12, 2008
The National Law Journal
Neil Munro

Professor Henry T. "Hank" Greely is quoted in The National Law Journal commenting on new brain-scanning technology:

So far, the new science is being cited in a tiny fraction of legal proceedings, mostly death-penalty cases and civil lawsuits, said Hank Greely, a Stanford law professor who is involved in the MacArthur project. But over the next 10 or 20 years, the use of the technology will broaden, he said. Brain-scanning equipment might be used to detect the early signs of Alzheimer's disease, Greely said, and the resulting information could impact the health insurance industry, spur states to cancel older peoples' driver's licenses, and guide investment by the nursing home industry. "The legal implications of this will be much broader than the courtroom," he said.

One likely early use for the technology in the legal system, according to Greely, could be to tailor treatments for drug-addicted criminals or to measure pain in people claiming injury or disability. Some evidence indicates that today's technology can detect brain patterns consistent with pain, and could help judges and juries to identify the "nontrivial chunk of those people [who] are exaggerating or flat-out lying," he said. Lawyers could someday also employ the technology in civil disputes to argue that their clients were unable to understand a complex contract or were not competent to sign a will.


Some experts in the MacArthur project -- including Sapolsky, who serves on the governing board -- hold that view, according to Gazzaniga. Greely says, "A lot of philosophers and neuroscientists say this [claim] will be revolutionary." He added, "I'm skeptical because I don't think the neuroscientists have convinced us there is no free will."


And even if science eventually proves the determinists correct, the people and the politicians have the right and ability to reject scientists' prescriptions, Greely said. "My doctor, every time I see him, tells me to lose weight, but I'd rather have the cheeseburger than the apple."