Like most new technologies, issues related to neuroscience are, in one way or the other, making their presence known in the legal system. In her study of serious criminal cases, Nita Farahany wrote that “[c]lear statistics are hard to find, but many indicators suggest that courts are increasingly encountering offers of neuroscientific evidence. . . . [M]any people in the legal system hope that insights from neuroscience can help to answer some of the hard and perennial questions law routinely faces. Criminal defendants regularly use neuroscience at every stage of the criminal process. . . .”1 Although attention has focused on the use of neuroscience in criminal cases, in litigating civil cases, neuroscience also is becoming more common.
In 2004, the American Association for the Advancement of Science (AAAS) and the Dana Foundation (Dana) convened an invitational meeting on Neuroscience and the Law to explore “how developments in neuroscience might interact with the law.” The participants were drawn from both the legal (lawyers, law professors, and judges) and scientific communities. Among the general topics addressed was “How will advances in neuroscientific methods for predicting behavior impact the legal system, and how will our society use these advances?” Participants further broke down the general questions to address 11 more specific topics, including predicting behavior, predicting violence, lie detection, brain death, enhancements, addiction, privacy, and intellectual property.2
When addressing follow-up, participants recommended “educational efforts designed to inform lawyers and judges.” AAAS staff, again with support from the Dana Foundation, adopted this suggestion and designed a course for judges on “Emerging Issues in Neuroscience.” In 2006, state, local, and federal judges were invited to an inaugural session, held at Dana’s Washington, D.C., offices. In addition to presentations by speakers, the program included case studies that engaged the judges and a “field trip” to the National Institutes of Health’s brain imaging center. Approximately 18 judges participated in this inaugural seminar, which was extremely well received.
Staff continued to convene these seminars (initially one or two days in length but, since 2011, two-day programs only) under the direction of Mark S. Frankel, management of Deborah Runkle, and logistical support provided by Bethany Spencer. The seminars continue under the direction and management of Deborah Runkle with logistical support provided by Nicolle Rutledge and Michelle Barretta. Seminars are held at venues around the United States, with each seminar having a local host institution, usually a law school, but also medical schools, a school of pharmacy, a department of psychology, the American Bar Association (ABA), two seminars at the National Judicial College, one seminar at the federal courthouse in Philadelphia, one at the Oregon Health & Science University Brain Institute, and one at AAAS headquarters in Washington, D.C. In addition to funding from the Dana Foundation, cosponsors include the Federal Judicial Center, the National Center for State Courts, and the Judicial Division of the ABA.
Each seminar has eight or nine speakers focusing on a combination of the following topics:
- Neuro 101, which covers brain anatomy and function and discusses the strengths and weaknesses of various brain imaging technology
- The adolescent brain
- Substance abuse
- The aging brain and the dementias
- Brain injuries, including traumatic brain injury, and their treatments
- States of consciousness
Additionally, at many of the seminars, a legal scholar addresses how neuroscience is currently being used in the courts.
Some of these topics match the categories presented at the 2004 meeting, but staff has since selected topics that are appearing in today’s courts, as opposed to more philosophical issues. After each seminar, staff conducts a brief telephone interview evaluation. While these evaluations are not “scientific,” they have been very useful in learning how the judges reacted to the topics and speakers. For example, when the judges indicated a low interest in ethical decision making and neuroscience, which was part of the 2006 inaugural program, it was dropped from the curriculum; similarly, when judges said they wanted to know if there was an objective way to gauge pain, a presentation on the neuroscience of pain was added. The schedule is flexible enough to make timely adjustments. For instance, the emphasis in the substance abuse talk has shifted from cocaine, to meth, to marijuana, and now to opioids.
Some of the topics covered at the seminars have been the subject of cases that made headlines so that learning about the state of knowledge from neuroscientists was especially meaningful for the judges. Some examples:
Adolescent brain: In Roper v. Simmons,3 the U.S. Supreme Court held that, because of evolving standards of decency in the United States and abroad, executing someone who was under the age of 18 when the crime was committed is a violation of the Eighth Amendment protection against cruel and unusual punishment. In an amicus brief, the American and Missouri Psychological Associations provided the Court with “research and expert opinion about the characteristics of adolescents such as less mature decision-making, impulsivity, risk-taking, peer orientation, temporal perspective (the extent to which long-term and short-term consequences are taken into account) and vulnerability to coercion and false confession. In addition, included was recent relevant MRI research on brain function suggesting that the brain continues to develop through young adulthood in areas that may bear on adolescent decision-making.”4 Justice Anthony Kennedy, writing for the majority, cited these studies and said that “any parent knows” that adolescents have a “lack of maturity and an undeveloped sense of responsibility.”5
States of consciousness: Teenaged Jahi McMath entered Children’s Hospital Oakland for surgical procedures, with the hope that they would result in improved airflow during sleep. The hospital described these procedures as “complicated,” and her mother described them as a routine tonsillectomy. Following her surgery, McMath suffered massive blood loss and cardiac arrest. The hospital’s doctors said that the loss of blood circulation caused whole brain death and the hospital planned to remove all life support. The family would not accept the declaration of death determined by neurological criteria. Believing she was not dead, but asleep, the family went to the Alameda County Superior Court, asking that the hospital be required to continue treatment. The judge hearing the case in Winkfield v. Children’s Hospital Oakland et al.,6 appointed his own expert to render an independent opinion on the declaration of brain death. The expert agreed with the hospital, and the judge found that McMath was brain dead but extended the time until the hospital would be allowed to remove life support. The family appealed the decision in both California state court and federal district court. McMath’s mother claimed that the superior court’s decision, which was based on the Uniform Determination of Death Act, violated both her religious rights and privacy rights and asked that the hospital be required to maintain treatment while the family investigated other options.7 The hospital said that requiring staff to provide “treatment” for a dead body was “grotesque.”8 Despite the ruling by the court, her mother continued to insist Jahi was alive, based on the fact that her heart was still beating. The mother and the hospital reached a settlement whereby the hospital released the girl to her mother’s custody, and she was transferred to a hospital and, eventually, to an apartment in New Jersey. Subsequently, McMath’s attorney told reporters at a press conference that tests of blood flow and electrical activity in the girl’s brain and films of her moving on command showed that she was alive. Again, an independent expert testified to the contrary and once more she was pronounced dead. The family proceeded to sue the hospital and McMath’s surgeon for malpractice. In June 2017, a renowned pediatric neurologist, who is a critic of the brain death criterion, said the girl was alive, based on her moving to commands. In September 2017, an Alameda County judge ruled that it is up to a jury to decide if the girl is dead or alive.
The judges who participate in these programs often relate personally to the presentation on the aging brain and the dementias, many of them speaking out at the seminar or later during the evaluation interview that they are caring for a family member with dementia or, sometimes, that they worry about themselves. Perhaps the most relevant talk is on memory. Learning that memory is not permanent and fixed means that witnesses, juries, and even judges may not remember things just the way they happened.
Evaluations have been consistently positive, and staff receives important feedback on the speakers. Looking back at the two most recent seminars, at the University of Washington medical school and Duke University law school, one judge said the seminar was “tremendous” and in judging the speakers’ ability to convey complicated scientific issues to a nonscientist audience she would rate them 9 on a scale of 1–10. Another judge said it was the best seminar she had attended in 25 years on the bench (a familiar comment) but that she thought one of the speakers came across more as an advocate than an expert. Needless to say, we value these kinds of comments.
An important learning opportunity for the judges occurs at the more informal interactions between the speakers and the judges during breakfasts, lunches, and breaks. Another learning opportunity takes place at the dinner staff hosts for judges, speakers, and guests. Judges take advantage of these venues to ask additional questions of the speakers in a relaxed atmosphere. During the evaluation interviews, judges frequently mention how much they benefit and enjoy these conversations. Equally important, many of the speakers tell staff they, too, enjoy these opportunities to become better acquainted with the judges. They find the judges to be interesting, and they learn more about the judicial system and how judges face the issues raised at the seminar in their daily caseload.
We have not yet conducted follow-up interviews with judges who attended past seminars to learn whether they have had an opportunity to use their new knowledge in the cases that come before them. It is not our intent to make neuroscience experts out of the judges. Rather, we hope they leave the seminar with a broad understanding of the issues discussed so that when a relevant case comes before them, they are aware of the complexities involved. They are also given contact information for the speakers, who are available to help the judges as needed.
We have convened 26 seminars and educated more than 450 judges. In 2009, AAAS received the Judicial Education Award “for its commitment to providing judicial education training” by the ABA Judicial Division, National Conference of Specialized Court Judges, the only time the award was bestowed on a scientific society.
Staff plans to continue the Emerging Issues in Neuroscience seminars but is also looking forward to expanding our judicial education efforts. Ideas for doing so include tackling totally new subjects that are likely to interest judges, such as digital technologies; giving a “short course” to judges on the opioid epidemic, possibly holding the courses at the annual educational programs of state judges or at a federal circuit conference; and offering our current seminar to administrative law and military judges, the prosecution and defense bars, and district attorneys.
1. Nita Farahany, Neuroscience and Behavioral Genetics in US Criminal Law: An Empirical Analysis, 2 J. L. & the Biosciences 485, (Feb. 2016), https://academic.oup.com/jlb/article-lookup/doi/10.1093/jlb/lsv059.
2. Brent Garland, Am. Ass’n for the Advancement of Sci. & Dana Found., Neuroscience and the Law: Brain, Mind and the Scales of Justice, (Dana Press, 2004).
3. 543 U.S. 551 (2005).
4. Brief for the Am. Psychological Ass’n et al. as Amici Curiae Supporting Respondent, Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183 (No. 03-633).
5. Roper, 543 U.S. at 569.
6. Case No. C13-5993, 2014 U.S. Dist. LEXIS 8560 (N.D. Cal. Oakland Jan. 22, 2014).
7. Sandy Banks, In Jahi McMath Saga, Science and Religion Clash, LA Times (Jan. 3, 2014), http://abcnews.go.com/Health/wireStory/california-judge-girl-thought-brain-dead-alive-49678387.
8. Matthias Gafny et al., Jahi McMath: Mom Can Remove Brain-Dead Daughter from Hospital, Judge Rules, Bay Area News Grp., Jan. 3, 2014.