Neuroimaging techniques, like fMRI, present constitutional dilemmas for criminal law and criminal procedure, according to University of Maryland‘s Amanda Pustilnik.

These technologies raise questions about “cognitive privacy” in relation to “compelled, self-incriminating speech” under the United States Constitution’s Fifth Amendment and “unreasonable search and seizure” under the Fourth Amendment.

Neuroimagery technologies can measure brain blood flow to determine whether the person is making false statements, and can evaluate whether waveform brain activity indicates a person is familiar with an object like a face or weapon.

In addition, these measurement devices can alter brain processes, such as exposing the brain to powerful magnets, resulting in greater or lesser likelihood of offering truthful statements.

Recent Eighth Amendment challenges to execution by lethal injection and legislative restrictions on abortion based on putative fetal pain are additional examples of legal questions informed by neuroimaging technology.

In these cases, neuroimagery measurements can provide evidence of presence and degree of physical pain.
Previously, this subjective state has not been directly observable until pain neuroimaging procedures were developed and admitted as legal evidence.

Pustilnik proposed “embodied morality” to explain how moral concepts of legal rights and duties are informed by human physicality and constrained by observers’ limitations in empathic identification with the pain sufferer’s experience.

U.S. law applies unrealistic criteria to determining defendants’ mental states for criminal trials in light of neuroscientific evidence, she argued, noting that the law maintains “a false trichotomy” among cognition, emotion, and volition to determine whether a defendant was “capable of moral agency” in committing an illegal act.

This decision is based upon whether the admissible evidence demonstrates that the defendant acted with “purpose,” suggested by planning the act in advance and “knowledge” of the act, typically determined by the defendant’s statements.

Pustilnik cited examples of disorders in which emotional impairments and volitional impairments can modify cognition, including temporal lobe injury, drug addiction, and obsessive-compulsive disorder.

In these situations, the defendant may provide an intelligible “explanation” of the act, yet may not be able to control the behavior, as in obsessive-compulsive disorder or drug addiction.
If the criteria of “intent” and “knowledge” are not fulfilled, a defendant may claim to have acted under “diminished capacity.”

To remedy this disconnect, Pustilnik recommends investigating whether the defendant  “understands the wrongfulness of the act.”

Widener University’s Jean Macchiaroli Eggen and Eric Laury of Minor and Brown echo Pustilnik’s observations and propose applying neuroimaging evidence to elements of tort law including knowledge, intent, negligence, and recklessness.

Critics of the admissibility of neuroimaging evidence like Bernard Baertschi of University of Geneva raise concerns that neuroimagery evidence injecting a systemic bias that influences jurors’ evaluations of defendants.

To test this claim, Nick Schweitzer and Michael Saks
 of Arizona State University investigated decisions by nearly 1200 volunteers in a mock trial involving psychological, neuropsychological, neuroscientific, and neuroimage expert evidence.
Participants evaluated the defendant’s claim of Not Guilty by Reason of Insanity (NGRI).

Volunteers said neuroscience evidence was more persuasive than psychological and anecdotal family history evidence, but there was no significant effect for neuroimaging evidence.

The researchers also asked participants to apply different insanity standards, and neuroscience evidence remained most influential across all standards.

Mock jurors who were not provided with a neuroimage said they believed neuroimagery would have been the most helpful evidence in evaluating the defendant, although those who actually received neuroimagery data did not judge this evidence as most valuable.
This is another example of forecasted judgments not correlating with actual judgments.

Neuroimaging skeptic Bernard Baertschi evaluated whether Functional Magnetic Resonance Imaging (fMRI) is more reliable than the polygraph to determine whether a person is providing truthful statements.

He outlined technical, methodological, conceptual and legal issues that obscure the conclusion, including technical definitions of lying and legal concerns about potentially biasing effects of brain imaging evidence on lawsuits.
He concluded, “Mind-reading using fMRI is not ready for use in the courts.”

-*How much weight do you give neuroimaging data in evaluating a person’s behavior, credibility, and motivations?

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