Running head: LOBES IN ROBES 1

Lobes in Robes: The Use of Neuroscientific Evidence in the United States Legal System

Amanda M.P. Burgess

First Colonial High School

Legal Studies Academy

LOBES IN ROBES 2

Abstract

This paper uncovers the controversial legality of neuroscientific integration throughout

the United States justice system. The author begins by discussing the history of scientific

discoveries that have been adopted into the lives of the American people through both social and

legal means by the nature nature debate and DNA based exonerations, respectively. The

implications of scientific integration are broken down through the affected aspects of the justice

system: founding evidentiary standards, psychiatric assessments, and the philosophical basis of

perceived guilt. Finally, case law from all levels of the court system are used to provide a look

into the effect of providing neuroscientific evidence into trial.

Keywords:​ Neuroscience, Law, Evidence

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Lobes in Robes: The Use of Neuroscientific Evidence in the United States Legal System

The United States Legal System is one of the oldest institutions in the nation and decides

the ultimate fate of so many each day. As the culture and society of the country grow and adapt,

the courts seem to fall behind and make slow changes to the standards and proceedings of

everyday decisions. The invisible health of each individual is one of the driving forces of the

21st century in regards to the culture of the newest adults. With adulthood comes an increased

criminal responsibility as one can be tried as an adult but as the generation of progressive society

begins to infiltrate the working world, there will be a shift in expectations of the United States

Justice System to reflect the beliefs of the people, specifically in terms of mental health. The

integration of innovative neuroscientific evidence and psycho scientific assessments has the

potential to alter the perception of criminal activity within the courtroom in regards to increased

cognitive awareness; however, the lack of legal recognition of mental incapacities through the

scope of neurological and physiological activity inhibits the progression of the court system.

The History of Scientific Evidence

Nature vs Nurture

While the behaviors of humans are continually under scrutiny by society itself, the

decisive debate over the specific influences of such behavior is a newer concept which has

overcome the study of evolutionary psychology for the past century. Evolutionary psychology, as

discussed by the Stanford Encyclopedia of Philosophy, is the application of evolutionary

principles to understand behavior with the applied theory of focus on the adaptation of evolved

biological systems (2018). With increased studies on the effects of serotonin concentration in

neurotransmission, inverse correlations between serotonin levels and aggression have appeared
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through a number of experiments; however, correlation does not equate to causation in the field

of psychology.

DNA Exonerations

Beginning in the late 1970’s, DNA exonerations slowly started to change how people

viewed the justice system because this was the first time the United States had used the

ever-growing field of science to uncover the ills of the institutionalized system of punish

ingrained within the society. With an increase in exonerations over the past half century, the list

of causes for exonerations grows alongside the exoneration rate. DNA finds itself among five

other general causes that lead people to be wrongfully convicted, many of which are for violent

crimes causing these innocent citizens to spend an average of 14 years in prison before being

released (LaPorte, 2017). The first DNA exoneration happened only after the judge presiding

over the case refused to acknowledge the exculpatory scientific evidence presented in the appeal

leading to the defendant’s, Gary Dotson, return to prison. Hyperspecific discoveries have

become rampant in the world of science so much so that the Federal Bureau of Investigation is

having to enforce forensic DNA laboratories to take at least 20 specialized locations on genes

when running tests to identify matches in an attempt to reduce the probability of positive

matches on a machine but negative matches in the genes (Starr, 2016). Nevertheless, one of the

oldest institutions in the United States was able to adapt and accept the integration of this

revolutionary evidence into its most strict standards and has since worked to ensure that the lives

of the exonerees were not taken by the system that failed them to begin with.
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Implications of the Use of Neuroscientific Evidence

Standard of Evidence

The nature of legal evaluations is inherently subjective through the lens of the judge who

presides over the trial, whether there is an abundance of precedent or lack thereof. The empirical

conclusions that scientific data result in do not influence the admissibility of evidence; however,

the abundance of such data that decreases the percent error of the conclusions does, in fact,

increase the chance of a judge’s discretion to fall on the counsel introducing the evidence

(Harrington v. State of Iowa, 2003). The standard in civil trials must only satisfy the

preponderance of evidence which tips the weight of the scales to be a simple majority. In regards

to the overarching standards of evidence that span all categories of law, the prosecution, in

criminal proceedings, and the plaintiff, in civil trials, must be able to prove that the evidence

being presented to the court has a great probability of being accurate (Justia, 2010). ​The two

distinct classes of evidence include circumstantial and direct. Direct evidence is such that is

stated as a fact rather than a variable correlation causation statement, such as an eyewitness

testifying against the defendant, or even a recording of the defendant confessing to the crime.

Circumstantial evidence, on the contrary, is that which is considered to be demonstrative to reach

a conclusion (Division for Public Education, 2013). This type of evidence may include brain

scans, finger prints, or any other science based evidence which requires one final step in the

attempt to prove to a jury that the defendant is either guilty or innocent: inferences that connect

correlation to direct causation. The ​Daubert​ test is the latest adoption of admissibility rules

directed by Supreme Court which emphasizes the factor of scientific validity in regards to the

specific testimony of a motioned expert witness. Federal Rule of Evidence 702, which replaced
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the vague yet incredibly strict ​Frye ​test in 1975, stated that expert witnesses had to meet four

qualifications. For an expert witness to testify before a jury under the former Rule 702, the court

must have established that the testimony would prove to be useful, is based on substantive

scientific principles that are accepted within the scientific community, and that the expert can

thoroughly connect the circumstantial evidence to the facts of the case. Federal Rules of

Evidence are ultimately the guidelines by which neuroscience diagnostic tests must pass and

adhere to in order for the evidence to transform into conclusion before the eyes of any jury

(Amirian, 2013). Neuroscientific evidence, if permitted to be presented in trial, would be

identified as circumstantial evidence. According to Amirian of Fordham University’s Urban Law

Journal, “fMRI images are likely to be introduced as circumstantial, demonstrative evidence

relevant to a person’s credibility that must be accompanied by expert testimony” (2013).

Neuropsychiatric assessments. ​Psychology and neuroscience, two of the world’s most

enigmatic fields of study, can be used to detect neurological disease as well as the causation of

behavior of psychiatric patients without a diagnosable disease. According to Dr. Sanders and Dr.

Keshavan, the authors of The Neurological Examination in Adult Psychiatry, “The neurologic

exam should be regarded as a collection of neurobiologic probes rather than a single irreducible

variable” (1998). The study of psychology is founded on the idea that correlation between two

variables in a study does not equate to the causation of one variable’s effect on the other which is

depicted in the conclusions of neurological examinations. Neurological diseases detectable

through the use of an examination even have two categories of positive results: hard signs and

soft signs. Hard signs include the considerably obvious neurological detriment of a patient that

can be identified by the doctor while soft signs vary greatly and may not be signs of a
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neurological disease but can assist in identifying alternative development problems. (Sanders and

Keshavan, 1998). Neurological specific testing can detect lesions, reptures, network

malfunctions, and an entire array of brain impairments that can range from being very serious to

barely noticeable. Imaging tests can spot difference variances of these debilitating dysfunctions

but their relationships with one another in regards to the effect on the individual depict the

integral part neuroimaging and psychology hold in behavioral characteristics.

Frontal lobe dysfunction and brain lesions. ​The structure of the brain is divided

into individual lobes that are distinct in their function and can be analyzed to determine

malfunctioning properties as an affect on the other portions of the body’s three pound regulator.

The frontal lobe is distinct in its focus on decision making and it's slow development is the

reason for many death penalty debates. Until the early 20s, the prefrontal cortex of the frontal

lobe of adolescents produces an overabundance of gray matter that is then continues to prune

when not used. Only after this process is white matter produced which provides protection for

brain circuits leading to higher level cognition (American Bar Association, 2004). Studies done

by California Institute of Technology depict the impairment in decision making and behavioral

control when damage, or lesions, is present in the frontal lobe. The study defines the key

differences between decision making and behavioral control as the action of choosing to do

something and the control of conscious responsibility centers that cause us to make decisions,

respectively. Lesion mapping allows scientists to identify areas of the brain that are required for

particular tasks such as decision making and behavioral control. The study concluded in

depicting specific regions of the frontal lobes that are necessary for each action; however, the

study was not able to identify which areas of those particular regions are most important for
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determining the impairments one would come in contact with. This identification that the study

was not able to complete is crucial because many times lesions impair the brain’s function in one

lobe but the rest of the brain will be able to makeup in function through neuroplasticity where the

brain is able to form new neural connections that compensate for a damaged cortex. In cases

where the brain does not adapt to this under functionality, specific human abilities may be

entirely impaired (California Institute of Technology, 2012).

Relationship between the prefrontal cortex and amygdala. ​Emotional

cognition and decision making are controlled through the vital relationship between the

prefrontal cortex in the frontal lobe and the amygdala in the limbic system. The prefrontal cortex

is specifically responsible for general cognition while the amygdala remains in control of

emotions. While the foundation of emotions may be concretely defined by dependance on

neurotransmission, the behavioral reaction to the biological process is much more complex due

to the individual bodily reaction and threshold for emotion that varies from person to person;

however, the systems of cognitive expression of emotion and physical expression of emotion are

interdependent on one another to synthesize the central nervous system (Salzman and Fusi,

2011). Dr. Kent Kiehl, the executive science officer and director of The Mind Research Network,

conducted experiments on inmates in a New Mexico prison to evaluate the connectivity of

neurons in inmates with psychopathic traits. He specifically focused on imaging of the amygdala

and of the prefrontal cortex when the inmates were shown controversial images while in an MRI.

The neuroimaging results depicted a correlation between psychopathic traits and areas of the

brain corresponding to morality and behavior.

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Abnormal inhibitory networks.​ Inhibitory networks in the brain share control of

neural transmissions alongside excitatory networks to communicate the necessary firing of

neurotransmitters which control emotions, actions, and movements. Connectivity between lobes

require proper functioning of these control networks and lack thereof causes a loss in behavioral

control found in ranges depending on the severity of the abnormality (Mayer, Hanlon, Dodd,

Yeo, Haaland, Ling, & Ryman, 2016).

Legal responsibility and positive law. ​Legal responsibility in the United States justice

system holds unwavering until the defendant can prove their actions were in response to extreme

duress or insanity. Legal order was founded on the idea that citizens who violate laws

representative of the population’s general values should be punished for their actions. Lipinsky

and Ivanova (2017) discuss the relationship between social and legal responsibility as one is the

general foundation of understanding of the other to create the idea of positive legal

responsibility. The authors define legal responsibility as “the basis of common characteristics of

social responsibility” while identifying the difference between statutory responsibility and the

societal idea of legal responsibility. The conceptions of acceptable conduct are reflected in legal

responsibility that is expressed through court decisions; however, legal responsibility is not the

single basis for understanding the concrete institutionalization of behavioral normalities.

Criminal responsibility. ​The assessment of criminal responsibility lies in the

mental capacity of the defendant and their comprehension of the actions they took to be charged

with a crime. The insanity defense is a rare case to make but one that may fit the defendant’s

needs but the defendant cannot truly be charged with the crime if excluded from responsibility. If
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violence is biologically ingrained in an individual being charged with a crime, the courts must

decide what risks might it impose if the defendant is not charged with a violation of morality.

Decision making and free will. ​Grant Shield’s article in ​The Review of

Philosophy and Psychology, “​ Neuroscience and Causation: Has Neuroscience Shown that We

Cannot Control Our Own Actions?” (2014), reviews the contemporary neuroscientific agreement

that the universal concept of free will is false as no one can knowingly control their actions while

being completely liable. The purpose of the article is to explore parallel realms of research that

can alternatively interpret the data which scientists and philosophers created the consensus that

free will is null and void. The presentation of the position refrains from altering or arguing

against the accepted concept of free will and the philosophical debates that such an idea is the

center of. While the review attempts to create a singular thesis against the agreement of

biological causation, it restricts itself from creating a discussion regarding a more broad concept

of free will and focuses on the scope of current neuroscientific knowledge of free will. Shield’s

analysis of the research that shaped the idea that individuals lack free will includes the

researchers’ interpretation of results to directly explain paradigms of conscious decision making

alongside thoughts and actions. The focus of the position indicates that consequential free will

compared to determinism free will is not a methodological explanation for the lack of free will in

individuals. He points to statistical techniques for the predisposition of actions as an attempt to

support neuroscientific conclusions; if statistics of a research experiment are not interpreted

directly alongside factual evidence, their results will be null and void rather than the perception

of free will. The review concludes with the evolution of consciousness and the inability of

contemporary neuroscientific research to accurately create the concept of a lack of free will.
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Potential misuse. ​Many DNA exoneration cases can be found alongside the name of a

government contracted laboratory where scientific evidence is processed on a daily basis,

knowingly being paid by the prosecution. Underlying biases such as these undetectable

laboratories can cause rifts in the proper application of scientific evidence being admitted into

the courtroom. Witness testimonies on behalf of scientific research can create unnerving

conclusions with data which in turn, become precedent. The increase in evidence flexibility

poses a myriad of hurdles but ones that have been addressed by those doing research and finding

the cause of wrongful convictions that have occurred by the thousands since the 1980’s.

Case Law

Frye v. the United States ​The first case of the implementation of evidentiary standards is

found in 1923 with an appeals court’s refusal to admit scientific evidence into trial. The

deception test took the individual’s blood pressure while being asked a series of questions thus

creating a correlation as to whether or not the person was being deceptive when answering. The

court decided not to admit the test into trial due to its lack of scientific backing throughout the

community at that point in time. This case solidified the necessity of scientific evidence to have

an overwhelming backing within its community of research and discussion (Hanna and Mazza,

2006).

​ he landmark court case of ​Daubert v.

Daubert v. Merrell Dow Pharmaceuticals Inc. T

Merrell Dow Pharmaceuticals Inc ​(1993) altered the standard of expert witnesses testifying to

link the presentation of circumstantial, scientific evidence to the conclusion trying to be reached

by the counsel. Before this case stood before the Supreme Court, the trial court judge held the

Frye ​test to the testimony of the expert witness.

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Harrington v. State of Iowa ​ ​The 2003 case of ​Harrington v. State of Iowa​ was an appeal

of the original 1977 first degree murder conviction of Terry Harrington who killed a security

guard in Iowa. The case was appealed on the basis of new brain fingerprinting evidence, the

prosecution’s main witness, and a newfound suspect which the police department failed to

report. Due to Iowa’s three year statute of limitations, the Supreme Court of Iowa was

technically not able to grant him a new trial; however, the court agreed to hear the appeal in

terms of the due process violation that occurred with the lack of police report presentation and

granted Harrington a new trial. The new trial was granted also on the grounds of newly

discovered evidence which could not have been presented to the state of Iowa within the time

restraints of the statute of limitations. This newly discovered evidence was the brain

fingerprinting; however, the Supreme Court of Iowa refused to review the neuro evidence as it

was not necessary to reach the conclusion of the appeal. This evidence highlighted the validity of

Harrington’s alibi through the patterns of brain activity tested as well as the lack of information

about the actual murder, decreasing his possible involvement or guilt. Because of the abundant

due process claims brought by Harrington against the prosecution, the brain fingerprinting

evidence was considered less valuable to determining the weight of the two issues at hand:

whether or not the trial court violated his rights by not granting the appellant a new trial on the

basis of new evidence or whether or not the prosecution violated the appellant's due process by

not presenting the entire police report, therefore withholding significant information from the

defense. The court eventually remanded and reversed the original first degree murder case back

to trial court (Harrington v. State of Iowa, 2003).

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Discussion

The integration of science has a long history of controversy and misinterpretation but

without the understanding of internal systems, behavioral control becomes an oppressive system

to those that can’t follow the social regards of their peers. With our institution of punishment

rather than rehabilitation, the country finds itself in a position of neglect for those who need the

most attention. The invisible health of each individual is one of the driving forces of the 21st

century in regards to the culture of the newest adults. With adulthood comes an increased

criminal responsibility as one can be tried as an adult but as the generation of progressive society

begins to infiltrate the working world, there will be a shift in expectations of the United States

Justice System to reflect the beliefs of the people, specifically in terms of mental health. The

integration of innovative neuroscientific evidence and psycho scientific assessments has the

potential to alter the perception of criminal activity within the courtroom in regards to increased

cognitive awareness; however, the lack of legal recognition of mental incapacities through the

scope of neurological and physiological activity inhibits the progression of the court system.
LOBES IN ROBES 14

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