Tag Archives: Pain

Your Brain in Court: Cognitive Privacy, US Constitution and Neuroimaging

Amanda Pustilnik

Amanda Pustilnik

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.

Jean Macchiaroli Eggen

Jean Macchiaroli Eggen

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.”

Eric Laury

Eric Laury

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.

Bernard Baertschi

Bernard Baertschi

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).

Nick Schweitzer

Nick Schweitzer

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.

Michael Saks

Michael Saks

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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Interpersonal Envy in Competitive Organizations and the “Search Inside Yourself” (SIY) Antidote

Workplace envy is rarely discussed, although it is a logical outcome of competition for scarce resources:  Recognition, advancement, power, reputation, compensation in explicit or implicit organizational “tournaments.”

Jayanth Narayanan

Jayanth Narayanan

National University of Singapore’s Jayanth Narayanan, Kenneth Tai, and Daniel McAllister broached the near-taboo of workplace envy as an inevitable outgrowth of social comparison and related “cognitive dissonance” in attempting to self-regulate or return to emotional and equity “homeostasis.”

Daniel McAllister

Daniel McAllister

They differentiated malicious envy from benign envy and argue that the latter can drive performance through emulating admired outcomes.

This process, called firgun in Hebrew, is characterized by happiness, envy, and support of others, and is positively related to organizational success.
Mudita in Buddhist texts, refers to similar feelings of vicarious joy at another’s success and good fortune.

Hidehiko Takahashi

Hidehiko Takahashi

Narayan and team posit that envy is pain at another’s good fortune, and Hidehiko Takahashi’s team at Japan’s National Institute of Radiological Sciences demonstrated that the social-emotional pain of envy is a variation of the physical pain experience.

Their fMRI study found that the emotional pain of workplace envy is physically manifested in activation of the brain’s anterior cingulate cortex.

Nathan DeWall

Nathan DeWall

As such, Nathan DeWall of University of Kentucky and colleagues reported that Tylenol™ reduces behavioral and neural responses associated with social pain in two fMRI studies.

Narayanan argues that envy exerts its differential effect on workplace behavior through each individual’s specific:

  • Core self-evaluations (self-esteem, self-efficacy, locus of control, and neuroticism),
  • Referent cognitions” regarding warmth, likeability, and competence of the envied  person
  • Perceived organizational support

Workplace envy, they argue, can affect:

  • Social undermining
  • Prosocial behavior
  • Job performance

Narayanan and team proposed that those with higher self-esteem are less prone to negative workplace behaviors when experiencing on-the-job envy.

They propose that people are less likely to socially undermine the envied individual when the envied person is viewed as both warm-likeable and competent.

Similarly, they suggest that people who think their organization values them and their work, and supports their work and career development efforts are less likely to decrease job performance when envious at work.

Chade-Meng Tan

Chade-Meng Tan

Search Inside YourselfGoogle’s Jolly Good Fellow ChadeMeng Tan proposes the mindfulness-based program “Search Inside Yourself” (SIY) as a way to self-manage workplace envy and other painful social experiences, by developing skills in:

  • Trained attention
  • Self-knowledge and self-mastery
  • Creating useful mental habits.

-*How do you manage workplace envy when you notice it in yourself or others?

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