Talk:Issues in Interdisciplinarity 2019-20/Truth in Lie Detection through Neurolaw

Vanessa: Whether one is legally responsible for a criminal act is a legal determination, not a scientific finding. Neuroscience can help evaluate behaviour and one's ability to control it, but it cannot determine how much control is required for one to be consider responsible under the law. To accommodate neuroscience in law, it is also possible for changes in sentencing law and criminal procedure to accommodate neuroscience, but this decision comes down to the legal system.

Neuroscience plays a role in questioning the understanding of morality to better determine guilt and deter offenders by reshaping what we understand to be the meaning of being human, thereby challenging how law is or should be applied from its moral foundations up.

With both disciplines' positivist view, judgement is made in accordance to what data suggest probabilistically.

It should be noted that lie detection of guilt knowledge does not bypass the need for testimony as such vitiates the concept of legal practice, however does influence the jury’s interpretation of truth, in turn the sentence in criminal trial.

In principle, science considers all evidence while law only considers evidence that is admissible under the Daubert Standard. The legal system's reliance on techniques of identifying deception

Despite the court ruled fMRI evidence as inadmissible, this existing legal ambiguity extended further in a recent case in FL v. Amato (June 2019), where the accused requested an MRI during a court hearing in Seminole County, in which such request is approved by the court.

Vanessa: I think we should move the first introduction paragraph and the Berry Blit illustration above the Content Box. Then add the polygraph picture align with the Techniques and Lie Detection paragraph from the introduction section written by Sarah.

@Vanessa: I like that! I'll try and move the illustration above the content box & try and find a picture of a polygraph :) SophieKoe 03.12.

@Kenneth: I like what you have written about truth in neuroscience so far! :) I just wanted to comment (Idk if we should or can include it but I guess it's important to know) that even though Neuroscience uses a mostly positivist approach, findings about the brain and cognition are often less objectively true/less certain than scientists would like them too be considering their positivist framework. There's a high possibility that one misinterprets data or images, the resolution of imaging techniques is far from being able to depict the brain in its entire complexity, and so on and so forth. Do you think this is relevant for the truth part or should we include it somewhere else (maybe in the conclusion part) or leave it out alltogether?

Also adding on to the thoughts on that, I could imagine that one reason for the tensions between law and neuroscience (or for using neuroscientific evidence in a law context) is that law-people probably tend to think that the neuroscientific stuff that is presented to them is a 'fact', is unchangable and undeniably true. Whereas the neuroscientific community goes like 'no, no, noooo, guys stoooop pleeeeease, be careful when relying on our stuff aaargh! I mean yeah it's the brain and there is correlation between brain activity and specific tasks/thinking (e.g. lying, false memories, reasoning) but we cannot conclusively say this is how it is, yooo careful!!!' --> haha I hope that makes sense and is helpful? Let me know!:) https://search.proquest.com/docview/1669916518?pq-origsite=gscholar This site explains it a bit in the section talking about techniques SophieKoe

@Sarah (from Sarah): check your referencing, one source is the same but has different ^[1]/^[#] in the text; + one source still needs the proper citation

@Sarah (from Sarah): references fully checked - should be okay SophieKoe 22.11.

@all: what citation form do we want to use? I am currently using APA SophieKoe

@all/self: Kenneth told us in the fb chat that it's Vancouver, so this question is answered. SophieKoe 22.11.

@all: I am now more or less done with my section. I/we still ahve to cut down on words (sorryyy) and I want to insert one or two images, but apart from that I'm done. Also I inserted some links to other wiki pages, what do you think about that? SophieKoe 22.11.

@Sarah/all: we discussed getting rid of the abbreviations of brain regions in the first section & instead find a diagram illustrating those sections (due to wordcount and illustrative reasons) --> so find appropriate diagram SophieKoe 03.12.

@all: I have just published the first draft conclusion part focusing on explaining the tension between the interpretivism use in lie detection and the positivism use in law. Besides, I added some thoughts about the future role of lie detection in courtrooms. You guys can read it and give suggestions before our meeting tomorrow.Hshu3 03.12.

WHAT WE DID IN THE MEETING YESTERDAY 04.12.19 (and generally how the groupwork was)

So yesterday the four of us met to discuss the entire entry and edit it. We discussed what form Vanessa's bit (The case study and the Tensions in truth section before the conclusion) should take and worked on it together. With Vanessa's help I rephrased some of her sentences to make them more easy to understand. While we were doing that Hang and Kenneth went through the other sections re-reading and doing some minor edits. Hang already had a draft for the conclusion but it was a bit difficult for him to write it without knowing exactly how the 'conflicting truth in lie detection' part would look in the end. We discussed that a bit further when we were done with Vanessa's bit and the conclusion is now close to being done, too. After finishing with Vanessa's bit, we all together went through the entire paper again and made some minor edits. We also tried to cut down on words but got stuck in an editing conflict, the edits were not safed and then my laptop's battery broke down so we called it a day. Generally, we split the sections into four bits. Kenneth did the one on 'Truth in Neuroscience and Law', Hang did the 'conclusion', Vanessa did the 'conflicting truth in lie detection' and I (Sarah) did the introduction (the bit above the introduction, and the stuff under 'introduction'). We worked on our parts very independently and then gave advice on the other's sections (and edited a bit) on our facebook groupchat and during our meeting(s) - especially during the one yesterday. SophieKoe 05.12.

Learning from the History and Law
Francis X. Shen The Overlooked history of neurolaw DOI: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2899031

Vernon H. Mark Violence of the brain 1973 > The Anatomy of violence 2013

Francis X. Shen Neurolegislation: How U.S Lesgislators are using brain science DOI: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2837323


 * Revolutionizes legislators’ pre-existing policy commitments
 * Abortion: Provability of fetus may be able to experience pain

Virgina Tech and Harvard course in Law and Neuroscience

Aspen Casebook Series

Owen D. Jones & Francis X. Shen, Law and Neuroscience: What, why and Where to Begin (2016), http://ssrn.com/abstract=2881613

“…a lot of law hinges on how the brain works”

Use of Lie Detection as Evidence
“inadmissible in court”: cannot be used in court during trial as evidence against the accused

Polygraph measures blood pressure, perspiration and heart rate and attempts to correlate them with telling lies, hence not reliable

CASE STUDY: United states vs Samrau(U.S Dist. Ct. W. Dist. Of TN 2010) No. 07-10074. DOI: http://www.opn.ca6.uscourts.gov/opinions.pdf/12a0312p-06.pdf


 * Two-day evidentiary hearing about whether or not fMRI based function magnetic resonance imagining lie detection evidence should be allowed into a courtroom
 * Medicare Medicaid company in Tennessee
 * Need of proof that plaintiff did it knowingly
 * Plaintiff found expert Stven Lakyn to testify himself
 * Control test questions answered during MRI scan: ‘In my professional opinion, (…) Dr. Semrau’s brain indicates he is telling the truth in regards to not cheating or defrauding the government’
 * Issue of law admissibility

Francis X. Shen Neuroscientific evidence as Instant Reply

fMRI issue in testifying Lie Detection
detect changes in prefrontal cortex activity

may be able false positive if subject deceives himself to believing he is telling the truth

increase in brain activity does not equal to lying, correlation not causation

June 2019: Attorney for Grant Amato, who’s accused of killing his parents and brother inside their Chuluota home, requested the MRI during a court hearing in Seminole County

Ref: https://www.courttv.com/news/fl-v-amato-the-defenses-case/

Neurolaw as a Concept
Brain science is reforming juvenile justice policy and practice

Raise of age for juvenile and adult system

Substance use dualism in law – brain and the mind, mental and physical

Pervasive in law

Bodily injury coverage in auto insurance

CASE STUDY: Bloomfield Hills Michigan

Michigan Court of Appeals, Hoekstra J. Appellate Opinions DOI:https://law.justia.com/cases/michigan/court-of-appeals-published/2008/20080923-c275797-40-145p-275797opn.html

-      Charles Allen as conductor developed PTSD from thinking he has killed a school bus full of minors and the driver

-      Can he sue the city of Bloomfield Hills the state of Michigan?

-      Government immunity stature – Individual cannot sue the government

-      ‘Government agencies shall be liable to bodily injury and property damage resulting from this negligent operation’

-      Brain physically enables the mind, is it physical?

-      Slippery slope of ‘then isn’t every mental disorder physical?’

Court of Appeals of Michigan. ALLEN v. BLOOMFIELD HILLS SCHOOL DISTRICT. Docket No. 275797. Decided: September 23, 2008 DOI: https://caselaw.findlaw.com/mi-court-of-appeals/1143607.html

-      Appellate court approves, settled at Supreme Court

-      Amicus brief from the plaintiffs’ bar and insurance

CASE STUDY: School shooting Red Lake teachers seek worker compensation for PTSD

Ref: http://wisconsinlawreview.org/wp-content/uploads/2015/05/Bailey-Final.pdf

Francis X. Shen, The Law review: Mind, Body and the Criminal Law DOI: https://www.minnesotalawreview.org/wp-content/uploads/2013/05/Shen_MLR.pdf

Conclusion(s)
-      Law gets to define things; neuroscience will keep challenge it

-      Neuroscience influence not the trial but the sentence

-      Require a bar council and medical board is needed to regulate procedure and review techniques and advances in order to bridge the disciplines

-      More equitable system and prove liability

Tension and Challenge in Future of Neurolaw
Do we know enough?

Can the brain understand the brain?

Very few training opportunities for younger cohorts

Difficult to keep funding: Not doing basic science or curing Alzheimer’s, not exactly doing legal practice

Difficult to bridge the divide, structural challenge

Kenneth - Readings & Suggestions
This article provides a brief introduction of neurolaw as an interdisciplinary field which links the brain to law and facilitates the pathway to better understanding of human behavior in order to regulate it accurately through incorporating neuroscience achievements in legal studies. Might be useful in the introduction section.

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4395810/

This article describes various methods in which lie detection can be performed, such as EEG & fMRI; as well as arguments in favour of and against lie detection in courtroom settings. It might be useful in showing how the issue of truth is present in lie detection and neurolaw in general.

https://onlinelibrary.wiley.com/doi/full/10.1002/wcs.8

Here is a simple recap of Positivism, Interpretivism and Social Constructionism with a helpful comparison of their characteristics.

https://research-methodology.net/research-philosophy/positivism/#_ftn4

Since we have to divide labour for the project, I suggest that we divide it into 4 sections to simplify work allocation. Below are my suggestions on how it can be allocated, feel free to edit/scrap them.

(Introduction & Conclusion???)

Social Constructionism in Lie Detection
(This is NOT the final layout of the wikibook. This just provides an insight into the planning process :) )

Sarah - potential literature/sources
Yo guys, here some more readings

https://search.proquest.com/docview/1669916518?pq-origsite=gscholar

this website describes the use of neuroscience in law - might be useful just to get acquainted with the topic itself and for getting an understanding of the techniques used (just as the article Kenneth posted, it talks about fMRI, but also about PET)

https://journals.sagepub.com/doi/pdf/10.1177/009885880703300211

this (rather long) article argues that 'neuroscience-based lie detection' urgently needs regulation. So I guess it plays exactly into what we want to talk about. Already the introduction states that it is important to think about how pictures are conceptualized and interpreted. Very relevant for applying neuroscientific evidence in a law context.

Hardcastle, V. G. (2018). Why Brain Images (Probably) Should Not Be Used in US Criminal Trials. The Palgrave Handbook of Philosophy and Public Policy, 25–37. doi:10.1007/978-3-319-93907-0_3

this article talks about why brain images should (probably) not be used in criminal trials. It argues that such neuroscientific evidence influences judges and affects decisions, even though data from imaging might be inconclusive or misinterpreted. You guys might not be able to access this paper, but I can send it to you.

https://link.springer.com/content/pdf/10.1007%2Fs11910-014-0513-1.pdf

this article also examines the credibility of neuroscience-based evidence in the court room. It includes lie detection

https://search.proquest.com/docview/1800701163?pq-origsite=gscholar

this website talks about the disciplines themselves, about disciplinary boundaries and about how science is translated for legal use. I think during this 'translational' process is where the difficulty lies - where data can be misinterpreted and where 'truth' can become especially difficult to capture

https://www.annualreviews.org/doi/pdf/10.1146/annurev.lawsocsci.093008.131523

this is a review on law and cognitive neuroscience

Thoughts on Outline

Introduction to Neurolaw

Lie Detection Different methods (fMRI, EEG, PET,..)

Issues in interpreting neuroscientific data (stuff is far from being objectively true, while we know stuff about brain activation and all we cannot conclusively say 'that's how it is!')

Issues in translating neuroscientific data from Science to law (layers taking 'evidence' as being factually true?,...)

Conclusion