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MacArthur Foundation Project Will Explore Legal and Ethical Implications of Neuroscientific Advances
STANFORD, Calif., October 31, 2007—Stanford Law School Professor Hank Greely is part of a nationwide consortium of legal scholars, jurists, and scientists who were awarded a three-year, $10 million grant from the MacArthur Foundation October 9 to help guide the way in which breakthroughs in neuroscience will affect the U.S. legal system. The research project, called “Integrating Law & Neuroscience,” is the first systematic effort to bridge law and neuroscience and will help address difficult legal and ethical questions that are arising as advances in neuroscience deepen our understanding of human behavior.
"Neuroscientists have been conducting pathbreaking research using neuroimaging technology,” Greely said, “but there are a lot of open questions about how the findings will be applied in the context of existing law and no guide posts for judges and juries who will have to weigh this complicated neuroscientific evidence when making decisions about guilt, innocence, or liability."
Sophisticated brain-scanning technology such as Functional Magnetic Resonance Imaging or fMRI allows scientists to correlate brain activity with specific behavior, and this emerging science is enabling courts to peer inside the human mind. Neuroscientists have used fMRI and other neuroimaging techniques to detect changes in brain activity that are triggered when (for example) a volunteer test-subject tells a lie or recognizes a face when shown a photograph. fMRI works by looking for subtle changes in blood flow to different parts of the brain, which in turn are thought to indicate what regions of the brain are “working” during a particular task. The method uses regular MRI equipment, but this application is relatively new. It is an exciting way to look inside a healthy brain to try to explain the physical mechanisms of thought and behavior, but its power and its limits are still being tested.
Greely, whose scholarship focuses on the intersection of advances in bioscience with ethics and law, and who has helped pioneer “neurolaw,” believes that two of the most vexing ethical dilemmas may arise from advances in our ability to predict criminal behavior and to detect lies.
Allowing neuroscientific evidence to be considered at trial has enormous implications—especially on the criminal justice system. Just as the inclusion of DNA evidence in trial proceedings has affected verdicts—causing some suspects to be exonerated and others to be convicted—breakthroughs in our ability to detect and predict human patterns of behavior such as lying or exhibiting a propensity toward violence could help condemn or free those being tried in criminal courts. Neuroscience could change investigations, pleas, verdicts, and sentences, especially when it comes to trying minors, the criminally insane, and others whose neurobiology may factor in their crime. If scientists—and ultimately courts and juries—can see inside the human mind, then we may change the ways we conceive of culpability and administer punishment. And if we get good enough at predicting criminal behavior we may shift our focus to prevention.
“With this exciting new technology,” Greely argues, “we have to be alert to two different kinds of issues. We have to worry about the effects of the technology if it works, but we also have to worry about the too-early application of technologies that do not yet work, and may never work.”
Greely, who directs the Stanford Center for Law and the Biosciences, and is the Deane F. and Kate Edelman Johnson Professor of Law and professor of genetics (by courtesy), is one of three Stanford scholars who have signed on to the networks of scholars funded by the grant. The others are William Newsome, professor and chair of neurobiology, and Anthony Wagner, associate professor of psychology.
The MacArthur project is centered at the University of California, Santa Barbara (UCSB) and involves scientists and legal scholars from more than a dozen universities nationwide. The project will initially be organized around three networks which will coordinate research efforts on abnormal brain function; decision-making in normal people; and addiction. Each working group will be co-directed by one neuroscientist and one legal expert and include up to 15 neuroscientists, legal scholars, philosophers and practitioners involved in the legal system, including a judge. Each group will review current research, identify gaps in knowledge and understanding, and develop specific research proposals that would contribute to improved law, policy, and legal proceedings.
All three Stanford participants are part of the group studying the legal implications of abnormal brains in people with brain damage, people who are mentally ill or incompetent in some way, and juveniles. Greely will co-direct his working group with Michael Gazzaniga, professor of psychology at UCSB, who spearheaded the overall project. Former Supreme Court Justice and Stanford Law School alumna Sandra Day O’Connor serves as honorary chair.
The project will address topics limited only be the imaginations of participants. Greely said he expects more Stanford researchers will join the various studies, and he outlined a few under way:
- Using Functional MRI for lie detection. "We don't know whether it works at all, let alone in a real-world setting," said Greely. "It would be nice to have some studies that produce evidence that judges and lawyers would want to look at in deciding whether this kind of evidence could be admitted in court."
- Psychopathy. Legal professionals are interested in whether the disorder can be detected by neuroimaging and other neuroscience techniques, what causes it and the implications for the criminal justice system.
- Addiction. Some researchers are developing vaccines to combat addiction, and Greely pointed out that even if they work well, there's no agreement on how they should be used: "Should they be added to regular childhood vaccinations so, before kindergarten, you get vaccinated against polio, diphtheria, pertussis, tetanus and cocaine?"
- Minimally conscious and vegetative states. Research exploring the level of consciousness in an unconscious person could have implications for end-of-life issues.
- Pain. "There is some evidence that neuroimaging might be able to determine whether somebody is truly feeling pain or not," said Greely. "Whether damages should be awarded for pain and suffering is a big issue in many court cases, as is the existence of pain in disability determinations."
- Memory. Specific issues include understanding how the brain regulates memory and how that changes when brain function is impaired; determining whether accurate and false memories can be distinguished using brain imaging, and determining if someone really is remembering when they say, "I can't recall."
About Hank Greely
Henry T. "Hank" Greely is the Deane F. and Kate Edelman Johnson Professor of Law. He is a leading expert and author on the legal, ethical, and social issues surrounding health law and the biosciences especially those related to genetics, neuroscience, and stem cells. He frequently serves as an advisor on California, national and international policy issues, and chairs the California Advisory Committee on Human Embryonic Stem Cell Research. Active in university leadership, Professor Greely chairs the steering committee for the Stanford Center for Biomedical Ethics, directs both the law school’s Center for Law and the Biosciences and the Stanford Center for Biomedical Ethics’ Program in Neuroethics, and serves on the leadership council for the university’s interdisciplinary Bio-X Program. Before joining the Stanford Law School faculty in 1985, Professor Greely was a partner at Tuttle & Taylor and served as the staff assistant to the secretary of the U.S. Department of Energy. He was a clerk to Justice Potter Stewart of the U.S. Supreme Court and Judge John Minor Wisdom of the U.S. Court of Appeals for the Fifth Circuit. Professor Greely has an appointment (by courtesy) with the Stanford University Department of Genetics.
About Stanford Law School
Stanford Law School is one of the nation’s leading institutions for legal scholarship and education. Its alumni are among the most influential decision makers in law, politics, business, and high technology. Faculty members argue before the Supreme Court, testify before Congress, and write books and articles for academic audiences, as well as the popular press. Along with offering traditional law school classes, the school has embraced new subjects and new ways of teaching. The school’s home page is located at www.law.stanford.edu.
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