"Neuroscientists have been conducting pathbreaking research using neuroimaging technology,” Stanford Law School Professor Hank 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."

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 in October 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.

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.

Hank 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.

The project will address topics limited only be the imaginations of participants. Hank 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 Hank 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."

“With this exciting new technology,” Hank 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.”

SOURCE:Stanford Law School