December 11, 2017

Neurolaw: The Intersection of Science and the Law

By Hannah Hayes

In 2012, the U.S. Supreme Court ruled that a mandatory life sentence without parole for juveniles violated the Eighth Amendment prohibition against cruel and unusual punishment (Miller v. Alabama). In the majority opinion, Justice Elena Kagan wrote that “developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds.” In 2016, Montgomery v. Louisiana applied the rule retroactively to some 2,300 cases across the country.

While the use of brain imagery as evidence is not new to the courtroom, the increasing body of knowledge about how the brain works is finding its way into areas of the law beyond civil cases. The last 30 years have seen an explosion of research on neuroscience and behavior, and the growing field of neurolaw attempts to translate these advances in brain science into law and policy.

“The criminal justice system has always relied on medical evidence to explain people’s behavior,” says Deborah Denno, founding director of the Neuroscience and Law Center at New York City–based Fordham University School of Law. “It’s an expectation that a good attorney will use neuroscience, and attorneys who don’t use it can be ineffective.”

While most often associated with civil proceedings and brain injury, neurolaw is used in all three steps of criminal trials: determining competency, guilt, and sentencing. As in the landmark Supreme Court rulings that radically changed the juvenile justice system, the legal landscape continues to evolve, and many experts in the field are concerned with how it is applied and interpreted in the courtroom.

Ethical and Applicable Uses in the Courtroom

Denno has written extensively on the death penalty and methods of execution, as well as behavioral genetics and a host of other issues related to evidence-based information in behavior science and neuroscience. She is currently compiling a survey of 800 cases spanning 20 years examining how evidence using available science on how the brain works has been used in the courtroom.

Beyond the question of the availability of scientific knowledge, what concerns Denno is the use of an evolving science in conjunction with other aspects of criminal law. She points to several cases of shaken baby syndrome (SBS) that emerged in the 1990s when many caregivers were convicted of first-degree murder based on a scientific “triad” of conditions proving an infant’s brain injury came from being violently shaken. Since then, new scientific evidence has cast doubt on the absolute conviction that this triad is irrefutably linked to SBS. New evidence suggests that prior injuries or even infections can cause the conditions to be present.

“Prosecutors need to show intent, but often they suggest you can decipher intent based on this evidence,” Denno says. “These are cases where there are no other witnesses, and in many of these cases, it’s someone wanting to keep the child quiet, not to kill them.” Intent to kill means the difference between a first-degree murder conviction and a reckless homicide conviction.

While neuroscience is most often used by the prosecution to demonstrate the extent of traumatic brain injuries, it is also used by defense attorneys to mitigate culpability, usually in sentencing. Arguing as a defense that a certain brain injury led the defendant to act in a certain way is often considered a double-edged sword; however, Denno’s research suggests that neuroscience can be used in reliable and valid ways and have a mitigating effect on juries.

Humane Sentencing

Sentencing is also an area where evidence-­based research has helped reverse the overly harsh mandatory minimum sentences of the 1980s and 1990s. To date, President Barack Obama has granted clemency to some 800 nonviolent offenders in recognition that the “war on drugs” and “zero tolerance” policies of this era were flawed.

Nancy Gertner is a former U.S. federal judge who currently teaches Law and Neuroscience at Harvard Law School in Cambridge, Massachusetts. Gertner serves as a network scholar at the MacArthur Foundation Research Network on Law and Neuroscience in Nashville, Tennessee. Since 2007, the MacArthur Foundation has funded neuroscience research that includes judges and legal scholars across the country to the tune of $17 million. Gertner has been an outspoken proponent of integrating neuroscientific evidence into sentencing.

“Over my 17-year career as a judge, I gave hundreds of sentences that I believe to be unjust,” Gertner says. “Many of them had issues that scientists have now studied, such as the effect of trauma, addiction, and sexual abuse on brain architecture.”

In prior years, any attempt to consider what implications the environment may have had in a criminal case led to criticism for being too lenient, according to Gertner. “Now we’re seeing science that can show us real changes in the brain, which makes a difference,” she explains. “It provides a more objective and a more humane way of looking at the people that we sentence.”

What Lies Ahead

Currently, more schools are focusing on neurolaw, and many are making it an interdisciplinary area of study. The Fordham center is one of several institutions across the country dedicated to studying the intersection of law and neuroscience. The MacArthur Foundation teams operate at Vanderbilt Law School in Nashville as well as Stanford University in California. Neuroscience and the Law classes are slowly finding their way into the curriculum.

Women are still not well represented on neurolaw faculties, but the number of women students entering the field bodes well for the future: Women make up only 29 percent of tenure-track faculty and 24 percent of full professors, according to the Society for Neuroscience in Washington, D.C., but an impressive 55 percent of Ph.D. candidates in neuroscience are women.

“Right now I tell my students you can have a career as a neurolaw attorney but whether or not we become a big field is an open question,” says Francis Shen, an associate professor at Minneapolis-based University of Minnesota Law School, where he directs the Shen Neurolaw Lab. “It may be that neuroscience would be a tool that many attorneys feel would be good to have in their toolkit, akin to statistical tools and economics. It’s a component skill, a perspective that could be applicable across certain areas of the law.”

Emily Murphy teaches Law & Neuroscience at the University of California, Los Angeles, and was a fellow at the Stanford Law School Center for Law and Biosciences. “All the cognitive things that we bring to decision making and what is now understood about human cognition and behavior science can be a powerful thing to a lawyer,” Murphy says.

Other issues that may change the legal landscape are the science of pain and emotional disability. New neurological studies reveal the impact of emotional distress on the brain, which is often not litigated. Mental disorders and pain experiences are physical brain states, and addiction studies also show lasting impact on brain function. “These are cases that insurance companies and mental health advocates are starting to wrestle with,” Shen says. “It’s a conceptual debate that has real-world legal consequences, and neuroscience is somewhere in the midst of those debates and legal arguments.”

Murphy observes that “we need people who can critically examine the science from the perspective of how this plays out in policy and where this plays out in litigation.”

So while a good criminal lawyer does not need to be a neuroscientist, “exploring how neurological evidence is used in court is a good start,” Denno notes. “Take CLEs, find out who the best expert is and what is best practice.”

Think Like a Lawyer . . . but Better: How Cognitive Science Can Change the Culture of a Law Firm

Any lawyer who has interactions with witnesses and clients understands that a basic understanding of cognitive and behavior science is a powerful tool. What is more powerful, says Larry Richard, Ph.D., is using this knowledge to effect change in leadership within a law firm. “The people who go into the profession of law are measurably different from people in other occupations,” says Richard, a consultant who uses scientific principles to help improve law practice performance. Richard practiced law for 10 years before completing a doctorate in organizational psychology.

According to Richard, “thinking like a lawyer” is a unique set of traits that is typical of cerebral people who are good at problem solving and tend to be very skeptical and highly vigilant.

While skepticism and “looking for problems” are great skills for a lawyer, they do not necessarily translate to leadership or sociability traits. “If I’m constantly looking for problems, then I’ve built neural pathways in order to find out what could go wrong. Now I go home and I’m going to look for problems at home. If I’m mentoring someone, I’m going to look for what they’re doing wrong.”

As law becomes more complex, law firms see the need to collaborate, and Richard’s studies show that lawyers score low on sociability. Building positive neural pathways that change the autonomous and negative mindset can enhance law firm culture while retaining the neural pathways that serve lawyers well.

So, can you change the culture of a law firm by “rewiring” the brain activity of the firm’s lawyers? Richard suggests the following:

  • Study the science. The number of advances in neuroscience has exploded, as has the number of studies showing the relationship between emotions and behavior. Law firm leaders serious about teaching these skills to their lawyers should read the literature. Obtain buy-in throughout the firm by examining the enormous array of empirical science that details the connection between changing behavior and building new neural pathways.
  • Embrace the idea. Leaders of the firm have to fully embrace the idea of change before they start trying to sell it to other lawyers; this involves role-modeling activities that promote collaboration and sociability.
  • Be willing to learn differently. In a CLE course, knowledge is transferred from one expert to another. Building behavioral skills uses completely different regions of the brain, and leaders need to recognize that a different pedagogical model is needed.
  • Rehearse the newly attained skills. Repetition and rehearsal are key to building new neural pathways in the brain and learning these skills. Change will not happen overnight.

(For more information, visit lawyerbrain.)