Dana Foundation Blog

Eyewitnesses Are Trouble

Scientists have decades of research showing that our memories for events are sketchy—even the powerful-feeling flashbulb sort. But the annals of law courts (and advocate websites) continue to carry reports of false identifications leading to wrongful convictions and unearned prison terms. Why?

It’s not because judges don’t see it. “The mind is not a video camera,” retired Arizona superior court judge Ronald Reinstein told us during the recent annual meeting of the American Association for the Advancement of Science (AAAS). "Memory is very fragile; it can deteriorate, it can be corrupted—and we see this every day in the court."

“In the last couple of years, the courts are talking about [problems with eyewitness testimony] more and more, but most still have not caught up,” he said. One problem is accuracy of the original memory: for example, if the perpetrator showed a gun during the crime, witnesses often miss or misinterpret other parts of the scene. Another problem he described is the many variables involved in asking a witness to choose someone from a police lineup. For example, the people chosen as “fillers,” filling out a physical lineup or included in a photo spread, can influence how likely a witness will be to make a mistake. He showed us a photo of one lineup where only one man, a filler, was wearing shorts. He was chosen, partly because he stood out as different, and partly because at the time of the crime, the perpetrator was wearing shorts.

The chance that witnesses will ID the wrong person increases when they are shown a group of photos (“simultaneous lineup”) rather than one at a time (“sequential lineup”), according to the initial results of a field study done by the American Judicature Society. Witnesses identified a filler as the culprit 18 percent of the time when they were shown a simultaneous lineup, and only 12 percent of the time when shown a sequential one. Other influences on witnesses are what exact instructions they are given, whether they are asked how confident they are about the ID, and who is administering the lineup (the investigator or a neutral person).

“We’re not saying police are trying to cue the witness, but [advising them] to avoid unintentional influences,” Reinstein said. Some reforms this study and others suggest are mandatory recording of the ID procedure (video or audio), better instructions, better selection of fillers, and double-blind presentation.

One court that has caught up is that of New Jersey; Reinstein cited the 2011 case State v. Henderson, which updated the state's test for evaluating and admitting eyewitness identifications in criminal proceedings (here’s a summary of the case by the Library of Congress and the detailed report of the special master’s investigation). AAAS itself offers judicial seminars on emerging issues in neuroscience, including memory and the limits of brain-scanning technology (a Dana Foundation grant helps support this).

As for juries, Judge Reinstein offered a bit of good news: It appears that “the CSI effect” may not exist. That’s the idea that watching fictional sleuths use magical technology to solve every crime beyond the shadow of a doubt could have lured jurors into thinking that they should demand that level of technology–and surety—in a real courtroom. “I don’t believe there’s a true CSI effect,” Reinstein said.

--Nicky Penttila

Rethinking Emotion in the Lab

As I started reading Dana Alliance member Joseph LeDoux’s perspective article in the latest issue of Neuron, I had one picture of what the purring cat on my lap was feeling. After finishing the article, I had quite another. What if instead of thinking about whether animals have feelings similar to ours we think about what we have that goes beyond the “survival circuits and functions” seen in animals?

LeDoux, who wrote The Emotional Brain in 1998, has studied the topic for decades; he described his new perspective, a synthesis or rethinking of the field, at the annual meeting of the American Association for the Advancement of Science (AAAS). “Feelings are important, but I think they need to be studied in humans,” not animals, he said.

“Both psychotherapy and drug therapy for psychological issues could be improved by understanding emotions,” but the problem is, we don’t agree on how to define emotion itself. We often use the terms for feelings and emotion interchangeably (emotional pain v. measurable physical pain, for example), and “whatever problems might arise from using ‘feeling’ words to study human emotion, they are greatly compounded by using these words in animal research.”

Should we be looking for happiness, sadness, or love in the animal brain? No, he said. Instead, we should look for “conserved survival circuits”: systems the brain uses for defense, to manage energy and nutrition, to balance fluids and body temperature, and to procreate. "You're not going to find a joy or pleasure circuit of the brain,” for example, he said. "Pleasure is not a function of any one of these systems, but an integrated result of them."

Cleo is feeling...sleepy?

In the Neuron paper, 14 pages of clear, thorough text with another almost 8 pages of references, LeDoux sets his thinking out step-by-step. His main examples are of defense and reactions to fear; that has been the focus of his decades of research. Table 1 (page 661) suggests the many roles so-called emotional stimuli could play in circuits: “triggers” that activate them, “incentives” that could modify behavior, and “reinforcers” that support learning and memory. I also found Figure 2 useful, illustrating how a conditioned stimulus could travel a survival circuit to lead to innate behavior and perhaps through more paths to lead to learned, goal-directed actions.

LeDoux writes: “Consciousness and feelings are topics that are best studied in humans. Research on the neural basis of feelings in humans is in its infancy. We will never know what an animal feels. But if we can find neural correlates of conscious feelings in humans (and distinguish them from correlates of unconscious emotional computations in survival circuits), and show that similar correlates exists in homologous brain regions in animals, then some basis for speculating about animal feelings and their nature would exist.”

I can know that Cleo’s purring is a direct result of my petting her, but, I must remind myself, what she is feeling remains a mystery.

-- Nicky Penttila

Freedom of Memory

Should people who have experienced a traumatic event be allowed or even encouraged to take memory-dampening drugs to ward off potential psychological distress?

This was the central question of law professor Adam Kolber’s talk last Friday at the Neuroethics of Memory symposium, hosted by SUNY Downstate in New York City.

Kolber believes that, for the most part, a person should have the right to control his or her memories, calling this the “freedom of memory.” For those of you familiar with Kolber’s work, this should not come as a surprise; in August he published a paper, “Neuroethics: Give memory-altering drugs a chance,” which was covered by a number of media outlets.

Drugs such as propranolol, studied on patients with PTSD, have shown signs of dampening a memory’s impact if given within a few hours of trauma. But some worry that if these drugs become widely available, they could complicate trials (among other issues), which largely depend on witness testimony (an issue being reviewed by the United States Supreme Court).

As a lawyer, Kolber understands the importance of informational recall in the courtroom. A large part of his lecture focused on how dampened memories could affect legal decisions (after all, emotional distress can be a consideration in a case). He deferred to legal precedent to explain his opinions on various scenarios, noting that the law often has to confront difficult issues before the science is ready.

Looking to a hypothetical future scenario in which memory-dampening drugs are widely available, Kolber posits that an accident victim might be expected to take a memory-dampening drug to treat potential emotional distress. Electing not to take the drug following a serious car accident, for example, could render that person responsible for delayed psychological trauma. Kolber likens this to a current-day scenario, in which someone elects not to fix a broken leg following an accident, but later sues for emotional distress due to pain and suffering caused by the leg. In both of these cases, Kolber believes that the injured person should not expect to receive damages for emotional distress.

Should people really be required to make such an important decision immediately following a traumatic event? They don’t yet know if they’ll suffer from emotional impairment down the road. But, as Kolber counters, even today a patient may have to decide whether to amputate a limb, not knowing all future ramifications of the decision.

The neuroethics of memory is clearly a topic that will become more prominent as technologies and drugs advance and demand for memory-dampening technology grows. Kolber cited a recent pilot experiment in which researchers asked traumatized people if they would want to take a memory-dampening drug – approximately 50 percent said yes.

--Ann L. Whitman

Real Cases in Law and Neuroscience (and What We’ve Learned from Them)

People from a range of professional backgrounds congregated last week at the International Neuroethics Society’s annual meeting to discuss the intersection of neuroscience advances and ethics.  Topics included neuroscience and national security, novel treatments in neuropsychiatry, and neuroscience and the law.

Many of the neuroethics conversations involved the ethical implications of neuroscience research advances, such as enhancement drugs, but at Friday’s final panel, attendees heard about landmark court cases that set precedents for the use of neuroimaging as evidence.

"When it gets to the legal system, somebody has to make a decision,” said Hank Greely, Stanford Law professor and moderator of the panel, explaining the importance of these cases.

On the panel were criminal defense attorney Steve Greenberg, trial lawyer Houston Gordon, and neurologist Russell Swerdlow. Greenberg used fMRI to argue that his client was a born psychopath, convincing the jury to choose the lesser sentence of life in prison instead of the death penalty. Gordon unsuccessfully introduced fMRI lie-detection evidence as part of his defense for a federal criminal trial. Swerdlow cracked the case of a teacher who uncharacteristically became sex-obsessed, discovering through MRI a large brain tumor in the defendant, which was causing his abnormal behavior.

From a very basic standpoint, imaging seems like a great way to cut through the possibility of devious testimony or to identify the potential for violent behavior in a defendant. But it’s clearly not that simple. In addition to the overarching question of the evening—Is the science even ready?—Swerdlow asked: How hardwired is human decision making? How free is free will? Are legal standards of decision making adequate? How feasible is rehabilitation? Certainly these are questions that courtrooms will become more familiar with as cases using imaging evidence become more prevalent.

The lawyers on the panel seemed in agreement that cases need to be looked at on an individual basis, but that conditions such as mental illness should play a role in sentencing. While a person may be guilty of a crime, intent is obviously an important factor. Greenberg emphasized that he is against using imaging as a predictor of future behavior. It is this gray area that alarms many people, including neuroscientist Helen Mayberg, who expressed concern that imaging could be used in the future to predict violent tendencies in people, creating a rationalization to separate them from society before they have even committed a crime.

Lie-detection drew the most concern and criticism from the audience, although Gordon stood by his belief that it was a scientifically legitimate means of testing. Greenberg wouldn’t even address the topic, explaining that “lie-detection just scares me.” Most of the concern voiced at the session stemmed from the idea that is has not been sufficiently tested, with one audience member noting that most of the testing has been on students in very controlled studies.

Proven or not, many lawyers will continue to employ imaging tests if they add weight to their cases. It is because of this increasing intersection between neuroscience and the law that the education of judges and lawyers on neuroscience is gaining traction. Since 2007, the Dana Foundation has funded a grant to the AAAS to hold seminars for state and federal judges on emerging issues in neuroscience, with the last session taking place two weeks ago in Philadelphia. Hopefully through the instigation of the International Neuroethics Society and other like-minded organizations, legal and medical professionals will increasingly inform each other’s work in mutually beneficial ways.

--Ann L. Whitman

Iconic Law Cases Revisited at the International Neuroethics Society Meeting

The 2011 Annual Meeting of the International Neuroethics Society is coming up on November 10 and 11 at the Carnegie Institution for Science in Washington, D.C. and I think it's going to be a terrific meeting. I particularly want to draw your attention to the law panel, scheduled for 2:45 to 4:00 on Friday, November 11. This panel will focus on neuroscience in real cases. We've got three speakers, each of whom was involved as a professional in one of the iconic cases involving law and neuroscience.

Steve Greenberg is the lawyer who introduced fMRI evidence of psychopathy into a capital sentencing case (the Dugan case in Illinois). There's a fascinating write-up of that case in Nature magazine. 

Houston Gordon is the lawyer who tried, unsuccessfully, to introduce for the defense some fMRI lie detection evidence (from Cephos, one of the two companies in this market) into a federal criminal trial. This led to a two-day evidentiary hearing and an extensive written opinion (United States v. Semrau, in Westlaw or Lexis).

Russell Swerdlow is a neurologist who was the treating physician for a man who pleaded guilty to the sexual molestation of his 12 year old stepdaughter after a year or so of increasing interest in pornography. Just before sentencing, the man was found to have a tumor the size of a chicken egg pressing on his left frontal lobe. When the tumor was removed, the defendant reported that his urges disappeared. He was released on probation; about 10 months later, his urges returned. So had the tumor. When the tumor was surgical removed again, so were the urges. See the case report at 60 Arch. Neurol. 437 (2003) (PDF).

Each speaker will briefly present his thoughts on the case and then participate in a question and answer period. This kind of chance to question people involved in seminal cases is rare; I think that, at least for those of us interested in law and neuroscience, it should be fascinating. Oh - and there are also a lot of other great panels and speakers on the program, including a panel on neuroscience and national security, a panel on novel treatments in neuropsychiatry, and a talk by Michael Chorost (great speaker) on neurotechnologies and humanity. (His first book, "Rebuilt: How Being Part Computer Made Me More Human," is about his own cochlear implant; I highly recommend it. He has a new book that I haven't read yet.)

--Henry T. Greely, J.D., director of the Center for Law and the Biosciences at Stanford Law School and executive committee member of the International Neuroethics Society

Professor Greely has written and been featured in several neuroethics articles for the Dana Foundation. A sampling:

Enhancing Brains: What Are We Afraid Of?
Lie Detection Services Remain Premature, Neuroethicists Say
The Ethics of Forensic Neuroscience: Neuroethics Q&A: Hank Greely
Seeking More Goodly Creatures