Crime & Federalism

If you thought genetics posed challenges to the development of law and legal dotrcine, you haven't seen anything yet. Developments in neuroscience are rapidly providing insight into the structure and function of the brain. Does that mean we will soon understand the contents of our minds? And, if so, what then of the law, where factfinders struggle with mental states, memory and truth?

I could not put down Neuroscience and the Law: Brain, Mind and the Scales of Justice. It kept me up all night -- in the middle of trial, I hasten to add. Edited by Brent Garland on behalf of the American Association for the Advancement of Sciences, the book is a collection of four papers and a discussion. The papers were presented at an invitation-only symposium of neuroscientists, legal scholrs, judges and lawyers to explore the sorts of issues likely to arise in years to come as neuroscience advances.

Are lie detectors unreliable? Fine. How about charting the P300 brain wave, which is activated when a person knowingly fails to be truthful, or lies? Farfetched? This business of Brain Fingerprinting, as it is know, was admitted into evidence in Iowa not long ago. Harrington v. Iowa, PCCV 073247 (Pottawattamie County D.C. Iowa, 2000).

Are pyschological tests unreliable in part because they rely on self-reporting? Then let's eliminate the danger of malingering by going right to the source of cognition, the neural circuitry than underlies and, perhaps, forms the mind.

And what of downloading the contents of a brain onto a computer? Or, perhaps, transplanting part, or, indeed, all, of a brain from one body -- I almost wrote person -- to another.

The law routinely accommodates changes in science. Computer-generated evidence is now common in the courts. The various iterations of the Daubert tests across the nation permit the results of new science to be admitted into evidence as it becomes available. But science teetering on the very verge of eliminating the disctinction between mind and body? That is, pun intended, mind-blowing.

Neuroscience already points to abnormalities in the brains of those exhibiting signs of consciencesless sociopathy. A specific gene has been located that is associated with aggression, and a variance from the norm may account for certain forms of criminality. How will the law respond to this information? Shall we quarantine those set to explode?

Of the four essays in this book, Laurence Tancredi's, clinical professor of psychiatry at New York University and an attorney, is the most challenging. I was unaware of how sophisticated the technologies used for brain imaging had become. His chapter inspired me to read further.

The brief chapter on free-will by Michael Gazzinga and Megan Steven is a huge disappointment. Gazzinga is at the Center for Cognitive Neuroscience at Dartmouth College, and Steven is at the University Laboratory of Physiology at Oxford. They dabble at philosophy and yield the trite conclusion that the person is a social contruct, and we are therefore free. This question-begging linguistic trick is unworthy of the AAS symposium. Why wasn't a credible philosopher invited to this event? The law is, after all, nine parts unstated and, for the most part, unexamined philosophic commitment.

The two final papers int the volume, by Henry Greely and Stephen Morse, are fantastic. They steer between trite conclusions of Gazzinga and Steven and the complexity constructed by Tancredi. Both papers are reliable issue-spotting devices.

Perhaps the best thing about the practice of law is the ever changing terrain. It may be that the human dramas unfolding in the courtroom are old and repetitive, but the manner in which facts can be explored grows ever more complex. Advances in neuroscience promise tremendous excitement and turbulence in the law in years to come.

The Dana Press, which published Neuroscience and the Law will send a free 30-page summary report of the conference on which the book is based. Contact Randy Talley at [email protected].