Renown academic and presidential advisor Nita Farahany recently spoke with BioEdge about neuroscience and the law.

The US Presidential Commission for the Study of Bioethical Issues recently released the second volume of its two-part report Grey Matters. The report considered ethical issues attendant to the rapid development of neuroscience, and the second volume had a particular focus on the ethical implications of neuroscience research.  

One of the authors of the report was Duke University Professor Nita Farahany. Professor Farahany is leading scholar on the ethical, legal, and social implications of biosciences and emerging technologies, particularly those related to neuroscience.

In an exclusive interview with BioEdge, Professor Farahany shared her thoughts on the complex relationship between neuroscience and the law.

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Xavier Symons: According to your own study of US legal proceedings, over 5 percent of murder trials and 25 percent of death penalty trials feature criminal defendants using neuroscience to argue for lesser responsibility or punishment. Do you think neuroscientific evidence is being ‘overused’?

Nita Farahany: Many methodological hurdles remain in neurological studies of complex behavioral traits. For example, what does “impulsivity” mean? How is it measured? Despite these scientific hurdles, the use of neurological evidence in the criminal courtroom is on the rise. I don’t think it’s quite right to say it’s being “overused.” Rather, I think in some instances, it’s being used before the science can tell us much about the behaviors or reasons for actions pertinent to a criminal case.

“it is so important to deliberate about the ethical and legal questions raised by the use of neuroscience in the legal setting already, before its use becomes more mainstream.”

Much of the neuroscience cited in the neurolaw and neuroethics literature is still quite nascent. Sometimes the literature deals with technologies that are still science fiction. Do you consider neurolaw to be a primarily ‘forward-looking’ area of legal research? 

Although laboratory studies demonstrate varied potential applications of neuroscience discoveries to the legal setting, many of these discoveries are not ready for use in the courtroom. For example, some argue that neuroscience might eventually allow us to be able to interrogate the brain to reveal our unspoken thoughts or visual imagery in the brain, thereby threatening a deeply held sense of privacy. But today, and in the foreseeable future, neuroscience does not enable us to do so.

Law and neuroscience does have forward-looking aspects to it, which is why it is so important to deliberate about the ethical and legal questions raised by the use of neuroscience in the legal setting already, before its use becomes more mainstream. Some of the forward-looking questions that we should be deliberating about now are whether individuals have a legal interest to mental privacy that could safeguard against compelled to submit to EEG, fMRI, or other brain-based interrogations? What role could or should neuroscience play in helping to validate eyewitness memory? Should we as a society protect freedom of thought? Does neuroscience challenge any of our existing norms upon which legal and constitutional doctrines are built? As scientific research in neuroscience proceeds, we as a society should deliberate about these issues to ensure that the ethical and societal implications of neuroscience are considered alongside scientific developments.

Neuroscience is already very sophisticated, and the science is rapidly evolving. Do we really have a chance of adequately educating judges to grapple with the nuances of neuroscientific evidence?

Public education efforts can inform the public and help individuals better understand and interpret scientific claims; these efforts should be responsive to developments in the rapidly changing field of neuroscience.

Already, there are a number of successful efforts to train lawyers and judges about developments in neuroscience. For example, the American Association for the Advancement of Science (AAAS) and the Dana Alliance host seminars to educate judges on advances in neuroscience and the issues they might encounter as a result of neuroscience developments. Judges who have attended these seminars have gained the tools necessary to understand the basics about neuroscience being introduced into the legal system, and more importantly, where to learn more about neuroscience as it develops and when it appears in their courtrooms.

“sometimes neuroscience cannot answer the kinds of questions that it is presented to answer.” 

In your own research, have you found that lawyers and judges often take neuroscience out of context?

Neuroscience, just like other scientific evidence, can bring empirical evidence to inform legal rules and norms. But legal norms and the kinds of questions we ask in law require more than just scientific information – they build upon ethical and social justifications. What I have found is that sometimes, neuroscience cannot answer the kinds of questions that it is presented to answer. For example, to determine whether a criminal defendant is guilty of a crime, the prosecution must prove the defendant voluntarily acted with a certain kind of mental state when doing the alleged illegal act. A brain image or neuropsychological testing after a defendant committed a crime cannot tell us what the defendant’s mental state was at the time he acted illegally. Nor does knowing that an adolescent has a developing brain tell us whether adolescents as a group are less rational, or less morally culpable. These are unavoidably societal questions that neuroscience may inform, but do not alone answer.

And oftentimes, some of the practical limitations of current neuroscience research make it less applicable to law. Current neuroimaging studies, for example, often have very few participants, drawn from undergraduate student populations—a sample that does not necessarily represent either the population at large or the defendants to whom the studies are intended to apply. And studies about variations between groups of individuals may tell us very little about why any individual criminal defendant acted the way they did.

“When legislators rely on hyped scientific claims and unverified science to support political agendas, resulting policies and laws can be unjust.”

How would you suggest policy makers address problems surrounding ‘hype’ and the overstatement of new neuroscientific findings? 

The role of neuroscience to answer legal and normative questions is often exaggerated and hyped. This hype can lead to unwarranted and excessive influence on legal decision makers like judges and jurors. Scientific hype in the media or scientific claims that have not been borne out through replication and verified by the scientific community at large can distort public perception. When legislators rely on hyped scientific claims and unverified science to support political agendas, resulting policies and laws can be unjust. Thus, neuroscientists, legal decision makers, and scholars must address the tension between advocating the use of neuroscience to improve accuracy and advance justice and prematurely urging its use, potentially hindering justice.

The responsibility to avoid hype is shared by many stakeholders, including neuroscientists, members of the media, politicians, judges, and the general public. Public education to improve understanding of neuroscience specifically and scientific evidence more generally is essential to enhance stakeholders’ understanding of neuroscientific concepts and the limitations of neuroscience within the legal system, and to reduce the potentially negative effects of hype.

Academic institutions, neuroscience and ethics professional organizations, and science policy organizations can play a role in increasing responsible engagement of neuroscientists with legal decision-making processes and policy development. They can offer educational materials and training resources that describe opportunities for engagement, help neuroscientists understand legal applications for their work, and develop communication skills to bridge language and methodological gaps between the two fields.

Professor Nita Farahany on the ethical implications of neuroscience for the law
Xavier Symons
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Xavier Symons

Xavier Symons is a bioethicist and scholar in residence at the Kennedy Institute for Ethics at Georgetown University.

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