Volume 1, Issue 1

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• BioBlurb

•Claiming Pitfalls in Bioinformatics Patent Applications

• E-Tech Update

• Judicial Neuroscience Seminar

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Why Virtual Worlds Matter for Lawyers
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August 7-12, 2008

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 If you are one of the many who have read about and heard about virtual worlds but do not really understand what a virtual world is, or even how to use appropriate terminology when discussing them, then this is the book for you. Learn more.

The SciTech Lawyer

 The Section’s quarterly magazine features practical and timely articles on a diverse range of science and technology law issues. This issue focuses on the impact of bioinformatics.

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The SciTech e-Merging News is published quarterly as a Section member benefit. Click here to join the Section. The material published reflects the views of the authors and has not been approved by the Section of Science & Technology Law, the House of Delegates or the Board of Governors of the ABA. © 2008 American Bar Association. All rights reserved.



Judges increasingly are confronted with cases – criminal and civil – that present issues at the frontiers of science and technology.  Because most judges lack a scientific background, they are eager to participate in educational programs that bring them up to date on cutting-edge research relevant to their caseloads.

One such issue is neuroscience, a field in which knowledge has been growing exponentially in the past 10-15 years.  As society becomes more aware of the complexities of the human brain and its relation to both everyday and pathological behaviors, lawyers in the criminal and civil bars are introducing evidence or raising arguments that rely on findings from the neuroscience laboratory.

To help fill the gaps in judges’ understanding of neuroscience, the American Association for the Advancement of Science (AAAS) ( http://www.aaas.org/) through the National Conference of Lawyers and Scientists (NCLS), has convened a series of seminars on Emerging Issues in Neuroscience ( http://www.aaas.org/spp/sfrl/projects/neuroscience/). NCLS is a joint standing committee of the AAAS and the Section of Science & Technology Law that has among its goals the enhancement of communications between the scientific and legal communities ( http://www.aaas.org/spp/sfrl/committees/ncls).

On May 6-7, 2008, AAAS held the fourth in the seminar series, co-sponsored by the Section, at ABA headquarters in Chicago.  (Other co-sponsors were the Federal Judicial Center ( http://www.fjc.gov)and the National Center for State Courts ( http://www.ncsconline.org/), with funding from the Dana Foundation ( http://www.dana.org).) 

Ruth Hill Bro, incoming Section Chair, kicked off the conference by reporting on some brain research of her own.  Bro turned to Amazon, where she found 377,990 books on the brain, the most interesting of which was Welcome to Your Brain: Why You Lose Your Car Keys but Never Forget How to Drive and Other Puzzles of Everyday Life

To answer the question posed above, speaker Craig Stark, an associate professor in the department of neurobiology and behavior at the University of California, Irvine, outlined how we remember or, more specifically, what happens inside our brains that we call memory.  He described several memory systems, which can conveniently be thought of as getting it in, keeping it in,and using it; or, more scientifically, encoding, storing, and retrieval; or, put differently, working memory and long-term memory.  That explains how we remember, but why do we forget?  There are several possibilities:

  • Encoding failure: Information was never encoded and never made it from working memory into long-term memory,
  • Decay: Memories weaken with time.
  • Interference: Memories can interfere with each other to cause forgetting of existing information or to hamper acquisition of new information.

The judges were especially interested in knowing how reliable memories are.  Can memories be distorted or false, even though a witness thinks he is telling the “truth”?   The answer is yes, memories can be false.  People can have “memory illusions.”  These illusions result from normal memory processes, because when our brains compress information, some information is lost.  Further, suggestibility (memories that are implanted as a result of leading questions or comments) and bias (retrospective distortions and unconscious influences based on current knowledge and beliefs) can distort memories.  To illustrate these phenomena, Stark used the example of an “unforgettable” event – the announcement of the O.J. Simpson verdict.  Studies showed that people’s recollections of how they learned of the verdict 15 or 32 months after the event often differed significantly from their reports right after the verdict was announced.

Stark’s talk was easy to follow because the seminar’s first speaker, David Heeger, professor of psychology and neural science at New York University, gave a presentation that could have been titled Neuroscience 101.  The primer on the brain included explanations of how neurons work, the anatomy of the brain, and how human brain function and anatomy can be studied non-invasively using imaging techniques like fMRI, (functional magnetic resonance imaging) and PET scan (positron emission tomography).  He gave concrete examples of brain function that are well understood by neuroscientists – vision and motion – and posed provocative questions like Can you read someone’s mind? and Can the human mind – perceptions, emotions, memories, thoughts – be  completely explained by the electrical and chemical activity of neurons in the brain?

Another question of great interest to the judges was Can you tell when someone’s lying?  This question, older than the lie detector, was addressed by Craig Stark in a second talk, The Neuroscience of Deception.  He described modern-day attempts by a couple of private companies, including No Lie MRI, as well as some academic researchers, to use fMRI to detect when someone is telling the truth or is lying.  The principle is simple enough.  Put a large number of people into an MRI machine (but not all at once) and give them a task, for example, to look at playing cards and identify them.  The subjects in the experiment are asked to tell the truth on some trials and to lie on others.  The computer (fMRI) then calculates a brain pattern that differentiates lying from truth telling.  Next, try it on another large sample and see if the computer can tell when a lie is being told.  Some investigators claim up to 85% accuracy for these up-to-date lie detectors.

If only it were that simple.  Stark outlined all the reasons why the technology is not ready for its day in court.  For example, as good as they are, MRIs are not perfect; in fact, they are very noisy.  Most importantly, there is a big difference between a college student (a common research subject) lying about an ace of spades and a defendant answering a Big Question like Did you murder your wife?  The test may not be accurate for questions that carry a large emotional impact, because emotional reactions have large effects on the brain.  Finally, there have been no tests done on people skilled at deception, for example, professional poker players.

A popular talk with the judges was Abigail Baird’s presentation, The Adolescent Brain.  Baird, an assistant professor of psychology at Vassar College, had the difficult task of speaking on a topic that most in the audience thought they knew a lot about.  After Baird assured the judges that adolescents do have brains, she proceeded to explain that their brains differ in significant ways from those of adults.  Although scientists previously believed that the brain was fully mature by adolescence, we now know that it does not reach full potential until at least the mid-20s. 

Baird’s research focuses on a particular kind of thinking called consequential thought, which is the ability to think counterfactually about the consequences of one’s actions and is one of the hallmarks in the development of complex reasoning.  This type of thinking is particularly important to the judicial system, as it directly relates to the degree to which individuals might be judged liable for their actions.  Baird explained that adolescents lack the ability to imagine alternative outcomes and understand the consequences of those outcomes. This explains every parent’s puzzled questions: What made him (or her) do such a stupid thing? What was he (or she) thinking?

It turns out that good explanations for this behavior can be found in the brain itself.  Brain volume reaches its height at three years of age, but the internal architecture and connections change considerably over the next couple of decades.  As youngsters reach adolescence, some gray matter in their brains (where the working neurons are located) sheds, while the white matter (the myelin that carries signals throughout the brain) increases.  This “pruning” is thought to be a means of making the brain more efficient, because the increase in myelin allows information in the brain to flow faster.  However, the parts of the brain (the prefrontal cortex and related areas) that process complex abstract information – for example, learning and memory in the service of goal directed behavior, or executive functions – develop this added myelination relatively late in the maturation process.

Carlton Erickson, professor of pharmacology and Director of the Addiction Science Research and Education Center at the University of Texas, Austin, gave a presentation on The Neuroscience of Addiction.  Believing the term addiction to be overused, Erickson prefers the word dependence, a phenomenon that occurs because of neurochemical dysregulations of the mesolimbic dopamine system or, in layman’s terms, the pleasure pathway or the reward pathway. These faulty regulation systems are caused by genetics and brain chemistry sensitivity, with input from the environment.  This point may have been the most important message relayed to the judges – that dependence was a brain chemistry disease (unlike abuse, which is not a disease). 

Erickson described various treatments, important knowledge for judges weighing options regarding defendants who are drug dependent.  He said that ideally the best treatment for substance dependence is a combination of intensive inpatient care with attention paid to co-existing psychiatric and medical problems, “holistic healing” (family, legal, financial, and spiritual), appropriate medications (there are several new drugs available that are useful in treatment of dependency), relapse and recovery management, and 12-step facilitation. 

Other talks at the seminar addressed the neuroscience of violence and of pain, and comatose, vegetative, and minimally conscious states (or What have we learned from Terri Schiavo?).  Although the goal of the seminar was to educate judges about the scientific background on issues that are coming before them in their courtrooms, or will in the near future, another talk was on a strictly legal topic – the admissibility of evidence from brain imaging techniques. 

Carter Snead, an associate professor of law at the University of Notre Dame, gave an information-filled talk on the admissibility of neuro-imaging evidence in state and federal courts.  His presentation covered constitutional claims, personal injury claims, contract claims (a state court in Michigan decided that a contract was voidable based on MRI evidence that a party’s brain showed shrinkage and hardening of the arteries consistent with dementia), and use in the guilt and sentencing phases of a criminal trial.  All of the speakers provided the judges with educational material prior to the seminar; among the most thoughtful contributions was Snead’s provocative article “Neuroimaging and the ‘Complexity’ of Capital Punishment” ( http://ssrn.com/abstract=965837).

The conference was a total success.  The post-seminar evaluations from the judges were highly positive, with at least one judge claiming it was the best educational seminar he had ever attended.

More of these neuroscience seminars are on the way.  At the ABA Annual Meeting in New York in August, the Section will again team up with AAAS and its co-sponsors to present a mini, one-day version of the seminar.  Two more are planned for 2008, one at Rice University in Houston in October and at the Society for Neuroscience Annual Meeting in Washington, DC in November.  For more information about these seminars, contact Shawn Taylor Kaminski at the Section Office 312-988-5601 or by email skaminski@staff.abanet.org.


Deborah Runkle is a Senior Program Associate of the Scientific Freedom, Responsibility and Law Program at the AAAS.  She is also the Associate Staff Director of the National Conference of Lawyers and Scientists. Her areas of interest are issues related to science and law and science and society.  She can be reached at drunkle@aaas.org.