New Phrenology on Trial: fMRI and the Law in the News

This from NPR:


"More and more lawyers are arguing that some defendants deserve special consideration because they have brains that are immature or impaired, says Nita Farahany, a professor of law and philosophy at Duke University who has been studying the use of brain science in court. About 5 percent of murder trials now involve some neuroscience, Farahany says. 'There's a steady increase of defendants seeking to introduce neuroscience to try to reduce the extent to which they're responsible or the extent to which they're punished for a crime,' she says. Farahany was a featured speaker at the Society for Neuroscience meeting in San Diego this week. Also featured were several brain scientists who are uncomfortable with the way courts are using brain research."


This article reminds me of a bit of history from 180 years ago.  In 1835 Isaac Ray, a physician who could be called the country's first forensic psychiatrist, examined a juvenile who was on trial for beating and mutilating another boy.  In his defense, Dr. Ray considered and could have used a bit of neurological history:  the boy had a severe head injury as an infant and so may have had brain pathology due to injury.  However, the parents were unwilling to testify as to the injury at the trial, so Dr. Ray used phrenology, then considered in the same epistemic category as other neurosciences of the time.  As published by Ray in the scientific journal Annals of Phrenology in 1835, the boy was found to have large areas of the skull where the "Organ of Destructiveness" was thought to be located. This was felt to undermine the boy's capacity to resist violent behavior. Ray commented that "One of my chief purposes... was accomplished. Phrenology had been mentioned seriously in a Court of Justice, without provoking laughter. "
To the judge on the case's credit, after Ray demurred on whether he was certain the phrenology had an impact on the defendant's actions, the court instructed the jury to not depend upon the expert's phrenology, but to concentrate on whether at the time of the incident the boy was able to tell right from wrong.  (For much more about Dr. Ray's phrenology case, see this source article by Dr. Kenneth Weiss ).
What can we learn from Ray's case story?  First, that new fields in neuroscience are often applied in the law before they are mature, and that this tendency needs to be reined in not only by the judges, but by the scientists.  Otherwise, we risk allowing unwitting academic errors to have far greater ramifications than just languishing unconfirmed in the back stacks of our libraries.  Second, that new theories about causes of behavior may include both genuine and false components (the juvenile's infantile head trauma was at least somewhat relevant, his phrenology wasn't) and only decades of confirmation and disconfirmation are likely to show us which details are which. 
Juries will need discernment, well salted with proper skepticism, communicated to them when such neuroscience defenses are used. Such a relatively neutral stance needs to come from all experts in the cases, not just the side without the pretty brain pictures.

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