Neuroscience and the Law

Brain, Mind and the Scales of Justice

A SUMMARY REPORT ON
AN INVITATIONAL MEETING CONVENED BY

THE AMERICAN ASSOCIATION FOR THE ADVANCEMENT OF SCIENCE

and
THE DANA FOUNDATION

BY
BRENT GARLAND
Copyright 2004
The Charles A. Dana Foundation
745 Fifth Avenue, Suite 900
New York, New York 10151

DANA is a federally registered trademark

Published by Dana Press

New York / Washington, D.C.

And
The American Association for the Advancement of Science
1200 New York Avenue, NW
Washington, D.C. 20005

Full report ISBN: 1-932594-04-3

Cover illustration by Birck Cox

Cover design by Potter Publishing Studio and Ion Graphic Design Works
Interior design by Ion Graphic Design Works

This report reflects the deliberations at the invitational meeting. The

report does not necessarily represent the views of the American
Association for the Advancement of Science or the Dana Foundation.

The full report of the invitational meeting, Neuroscience and the

Law: Brain, Mind, and the Scales of Justice, published by Dana Press
and distributed by the University of Chicago Press, is available
through bookstores and online retailers. It may also be ordered through
links at the Web sites of AAAS (www.aaas.org/spp/neuroscience), the
Dana Foundation (www.dana.org), University of Chicago Press
(www.uchicago.edu), or by phone: 773-702-7000.
 Table of Contents

List of Participants . . . . . . . . . . . . . . . . . . . . . .v
Neuroscience and the Law . . . . . . . . . . . . . . . .1
Monitoring and Imaging the Brain . . . . . . . . .5
Modifying the Brain . . . . . . . . . . . . . . . . . . .14
Cross-Cutting Legal Issues . . . . . . . . . . . . . .17
Future Directions . . . . . . . . . . . . . . . . . . . . . .22
Acknowledgments . . . . . . . . . . . . . . . . . . . . .25
 Participants

Judith C. Areen Mark S. Frankel

Georgetown Law Center AAAS

Bicka Barlow Brent Garland

Defense Attorney AAAS

Erica Beecher-Monas Michael Gazzaniga

University of Arkansas Dartmouth College
at Little Rock
William H. Bowen School of Law Steven P. Goldberg
Georgetown Law Center
Floyd E. Bloom
AAAS Board of Directors Henry Greely
The Scripps Research Institute Stanford School of Law

Joe S. Cecil Zach W. Hall

Federal Judicial Center University of Southern California
Keck School of Medicine
Ming W. Chin
California Supreme Court D. Brock Hornby
United States District Court
Deborah Denno for the District of Maine
Fordham Law School
Owen D. Jones
Harold Edgar Arizona State University
Columbia University College of Law and
School of Law School of Life Sciences

Martha Farah Alan I. Leshner

University of Pennsylvania AAAS

v
vi NEUROSCIENCE AND THE L AW

Stephen J. Morse Barbara Jacobs Rothstein

University of Pennsylvania Federal Judicial Center
Law School
Edward F. Rover
Charles P. O’Brien The Dana Foundation
University of Pennsylvania
School of Medicine William Safire
The Dana Foundation
Haskell M. Pitluck (Retired)
State of Illinois, Circuit Court Kristina M. Schaefer
AAAS
Adina Roskies
Massachusetts Laurence Tancredi
Institute of Technology New York University
School of Medicine
 Neuroscience and the Law

“[N]euroscience, over the last 30 years, has just blos-

somed at every point and each year brings a greater
understanding of the mechanical way with which we
perceive, we remember, we speak, we feel…It is that
sense of understanding the brain that really brings us
here today with force, and that [sense of understanding]
is the one that we have to come to grips with.”
—Participant scientist at the meeting

T HE knowledge and applications resulting from brain sci-

ence research are beginning to allow for an increasingly
sophisticated understanding of the brain. While advances in
neuroscience continue at a rapid rate, their ethical and legal
implications are only beginning to be considered. In 2002, The
Economist made the point that the link between brain and
behavior is much closer than the link between genes and behav-
ior, yet the public debate about genetics research and its broad
social implications far outweighs that given to neuroscience and
technology.1
Neuroscience raises numerous issues with respect to some
core constructs of the law, such as competency, free will, and the
genesis of violent behavior. The question of how developments
in neuroscience might interact with the law led the American
Association for the Advancement of Science (AAAS) and the
1. “Open Your Mind,” The Economist, May 23, 2002.

1
2 NEUROSCIENCE AND THE L AW

Dana Foundation to convene a meeting with participants drawn

from both the legal and neuroscience communities. Lawyers,
judges, law professors, philosophers, psychologists, psychia-
trists, and neuroscientists engaged in a conversation focused on
the relationship between neuroscience and law, and sought to
contribute to the larger public discourse by identifying some cen-
tral issues and suggesting directions for future efforts.
The 27 meeting participants discussed a broad range of top-
ics, a dialogue anchored on four papers commissioned to serve
as the shared intellectual framework. Those papers, as well as the
longer version of this summary report, are published together in
Neuroscience and the Law: Brain, Mind, and the Scales of
Justice, Brent Garland, editor (Dana Press, New York-
Washington, D.C., 2004). Readers looking to learn more about
the conference and the ideas that drove it are encouraged to read
the larger volume.
The commissioned papers and their authors are:
“Free Will in the Twenty-first Century: A Discussion of
Neuroscience and the Law,” by Michael Gazzaniga, a psycholo-
gist and the director of the Cognitive Neuroscience Program at
Dartmouth College, and Megan S. Steven, a doctoral candidate
in medical sciences at the University of Oxford in England;
“Neuroscience Developments and the Law,” by Laurence
Tancredi, a psychiatrist, lawyer, and clinical professor of psychi-
atry at New York University School of Medicine;
“Prediction, Litigation, Privacy, and Property: Some
Possible Legal and Social Implications of Advances in
Neuroscience,” by Henry T. Greely, a lawyer, C. Wendell and
Edith M. Carlsmith Professor of Law at Stanford School of Law,
and co-director of the Program in Genomics, Ethics, and Society
at Stanford University; and
Neuroscience and the Law 3

“New Neuroscience, Old Problems,” by Stephen Morse, a

psychologist, lawyer, and Ferdinand Wakeman Hubbell
Professor of Law at University of Pennsylvania School of Law.
This report summarizes some of the key ideas and concerns
that arose from the discussion. The participants did not attempt
to reach a definitive set of findings in this still-developing area,
but to identify and give intellectual shape to some of the central
questions and considerations to address in future efforts. Among
the questions raised are:
• How will advances in neuroscientific methods for pre-
dicting behavior impact the legal system, and how will
our society use these advances?
• What would neuroscience-based lie detection mean for
witnesses testifying in court?
• How might neuroscientific knowledge put people at
risk for discrimination in schools, the workplace, and
elsewhere?
• Are there either benefits or risks to justice and society
from enhancing or modifying one’s brain through phar-
macological or other technologies? What roles will the
legal system play in the societal debate over human
enhancement?

Beginning the Dialogue

This area of inquiry is so cutting-edge that participants had to

consider a few fundamental points before exploring possible
issues. First, is neuroscience likely to impact the law? Concerns
that developments in neuroscience could shatter legal paradigms
(say, by undoing the concept of free will) were viewed as unlike-
ly. Developments in neuroscience may well have substantial
impact on how the law views people and behavior, but the legal
4 NEUROSCIENCE AND THE L AW

system is generally robust and should be able to assimilate and use

new scientific knowledge as it develops. The meeting focused,
therefore, not on some legal brave new world, but on a realistic
assessment of the advances in neuroscience and their potential for
good or ill effects in law, as well as possible societal impacts.
Second, how far ahead is it reasonable to look in trying to
foresee discoveries and their legal implications? Because much
of the science is still in its nascent stages, it is hard to tell where
discoveries might lead. It is apparent, however, that the optimal
time to begin the dialogue about appropriate uses of neuro-
science is before the science is fully developed. A number of sci-
entific and technological discoveries—from the splitting of the
atom to the development of cloning—have demonstrated that,
when we don’t think about potential social and ethical implica-
tions of technologies before they are fully developed, we often
feel overwhelmed and unprepared for their use. Similarly, if the
science may have powerful and profound effects, prior prepara-
tion for its potential uses may prevent abuses.
Finally, given the breadth of topics addressed by both neuro-
science and the law, what analytical framework for considering
neuroscience developments in relation to the law might be help-
ful? Neuroscience encompasses many fields and addresses far-
ranging topics. As a result, one of the most difficult aspects of
examining the topics is merely to find an organizing principle for
discussing the science. This report uses a simple two-prong clas-
sification. In one class are neuroscience findings and technolo-
gies related to monitoring and imaging the brain, which
encompasses the prediction of behavior, lie detection, and brain
death, among other concepts. The other class consists of manip-
ulations of the human brain, including enhancement and pharma-
cological treatment of addiction. However, a handful of general,
Neuroscience and the Law 5

cross-cutting legal issues do not fit easily into this framework.

These are discussed briefly toward the end of the report.

Monitoring and Imaging the Brain

U SE of the technologies for imaging and monitoring the

brain raises a broad range of issues, from brain death to the
prediction of behavior. As imaging technologies continue to
improve, neuroscientists are taking increasingly fine-grained
pictures of brain function, producing an ever-better sense of
what happens in our brains as we perform tasks, experience emo-
tion, and engage in various behaviors. While such data may ben-
efit us by enriching our knowledge of the biology of mental
activity, we should be sensitive to the concomitant risks that we
will misuse such knowledge or be led by it to rely too much on
deterministic explanations. The discussion centered on the fol-
lowing topics: prediction of behavior (including prediction of
violence), competencies and capacities, lie detection, detection
of bias, and brain death.

Prediction of Behavior

Surely, if a single topic captures the sense of promise and

of risk from neuroscience, the ability to predict behavior is it.
The perspective of many neuroscientists is that a descriptive
biology of behavior will be available soon (and is likely to
incorporate both genetic and neuroscientific knowledge).
However, a predictive biology is not yet on the horizon, but the
increase in neuroscientific knowledge will undoubtedly allow
for better predictive ability than we currently can achieve. It is
6 NEUROSCIENCE AND THE L AW

not essential for predictive technologies to be 100 percent accu-

rate to be of use to the court system. Courts currently use predic-
tion in plea bargaining, sentencing, and decisions about levels of
probation, among other proceedings. In each of these examples,
the courts must weigh future risks, including the likelihood of
recidivism, against other societal and pragmatic concerns (such
as prison overcrowding). Accordingly, to the extent that science
can better inform those predictions, neuroscience really has
something of benefit to offer the court system.
When considering the prediction of behavior based on neu-
roscientific techniques, discussion often turns initially toward
the question of the relationship among developing neuroscientif-
ic knowledge, free will, and legal responsibility. The short ver-
sion of the issue is this: as neuroscience reveals more about the
brain, it becomes increasingly clear that the brain is a physical
entity governed by the principles and rules of the physical world.
If the physical world is determined, in the sense that the princi-
ples and rules of the physical world allow us to predict with
accuracy what will happen in the physical world (assuming we
know the starting conditions and other relevant data), then the
brain, too, as a physical organ, must be predictable. It follows
that if the brain is predictable, the mind must also be as well. If
the mind is thus determined, then the question arises: are our
thoughts and actions also determined? Or more bluntly, if we are
mere mechanisms, controlled by our mechanistic brains, then
how can we have free will? And if we do not have free will, then
how can we be held responsible for our own actions, whether
those consist of signing a contract or committing a murder?
The notion of responsibility (arising from free will) is cen-
tral to our legal system—we hold people responsible for their
actions only to the extent that they were free to act. Therefore,
Monitoring and Imaging the Brain 7

questions about free will are in a sense questions about legal

responsibility.2
Most participants felt that neuroscience is very unlikely to
ultimately overturn the concept of free will or personal responsi-
bility in the context of the law, as “responsibility” is a societal
construct, not a scientific one. A number of arguments were put
forth to support this view:
Some argued that the concept of responsibility arises from
observations regarding the ability of simple, rule-based, deter-
ministic systems to learn new rules and behaviors. As a society
we expect people to learn and follow these rules. Others felt that
the very biology of our brains plays a role in making human
beings creatures of rules and in making people feel there should
be responsibility.
Others endorsed the idea that humans understand themselves
to be rational creatures, moved and motivated by reason. As
there is no way for human beings to get outside of our percep-
tion of ourselves as rational beings, due to the way we are con-
structed, we will continue to behave and interact as if we are
rational and to base decisions about responsibility on our belief
in, and perceptions of, rationality, even if we are completely
determined. Accordingly, then, our laws and rules will reflect our
understanding of ourselves as rational actors.
Others agreed that the idea of free will is unlikely to be dis-
carded, but felt that it was still possible for developments in neu-
roscience to have substantial impacts on the concept of
responsibility. Some participants made the point that rationality
is not well-defined or understood, and that neuroscience could
2. While all of the commissioned papers written for the meeting touch on the
concept of free will, those of Gazzaniga and Morse specifically address the
issue in some depth.
8 NEUROSCIENCE AND THE L AW

ultimately play a role in helping to understand the construct of

“rationality” itself.
Many seemed to believe that the greatest impact of neuro-
science on the concept of free will and responsibility will be felt
not in exculpatory ways, but in mitigation (“he’s not fully
responsible, because of his brain”) and in perception of risk (“he
might try to follow the law, but his brain won’t let him, therefore
he is a risk to society”). The free will and responsibility debate
likely will not end soon (it has occupied philosophers for cen-
turies). Regardless, it seems clear that courts will continue to
consider technologies and techniques to predict behavior in their
decision making.
Courts, because they must make decisions in a timely fash-
ion, are pressed to use any reasonable tool that might shed addi-
tional light on the matter at hand. A risk thus arises that
predictive decisions will be based on poor or incomplete science.
Additionally, neuroscience-based predictions may be given
undue weight as “scientific predictions” when they may still suf-
fer from the typical problems inherent in current risk prediction
models. These can include bias in the selection of people for the
group to which others are compared; reliability or validity issues
in the prediction itself; and the inability of a predictive measure
to tell you about the particular individual, but only to tell you,
probabilistically, about the group to which the subject belongs.
The use of flawed or incomplete science, or the reliance on
scientific predictions beyond what the science is prepared to sup-
port, are exactly the kinds of concerns that should be foremost in
the public mind when contemplating the potential social impact
of predictive technologies or techniques. It is not just in court-
rooms that prediction would have an impact, but also in schools,
employment, health care systems, government investigations,
and in other ways that would dwarf usage by the court system.
Monitoring and Imaging the Brain 9

The potential to pigeonhole, to discriminate, and to judge on the

basis of test results could result in substantial negative conse-
quences, including the development of a “neuroscientific under-
class” denied access to education and other societal benefits on
the basis of their neuroscience test results. These concerns paral-
lel the current dialogue around genetics, and some felt the pub-
lic dialogue around genetics may illuminate some of the
promises and pitfalls that could accompany a greater understand-
ing of the brain.3

Predicting Violence

Though a host of possible predictions might be desirable

(such as an individual’s tendency to be honest or willingness to
follow authority), the potential for violence is of particular inter-
est and significance. Prediction of violence has already been the
subject of some neuroscience research, and it will probably con-
tinue to interest science as well as the legal system. The previous
discussion on behavior prediction is directly relevant to the pre-
diction of violence: it is a predictive measure likely both to have
tremendous utility and to carry great risk of misuse, and it is like-
ly to cut both ways in criminal law—in mitigation and in mark-
ing someone as being predisposed to violence. While violent
behavior probably will never be predicted with complete certain-
ty, the likelihood that techniques will be developed to distinguish
those more likely (or even very likely) to react with violence
seems great enough that those techniques should be considered
for future research and public discussion.
An additional concern is possible pre-emptive uses of pre-
diction of violent behavior (or proneness to violence). Generally,
3. For readers interested in the parallels with the genetics debate, Henry
Greely’s paper in the larger volume is particularly recommended.
10 NEUROSCIENCE AND THE L AW

in the legal system, we punish people based on behavior, not on

thoughts or “tendencies.”4 The idea of imposing treatment, or
even making decisions regarding employment, based on some
test results, and in the absence of prior violent behavior, oppos-
es this core value of the legal system.
Of course, not all the possible ways in which predictions of
“violence-proneness” could be used are negative. For example,
in screening people whose jobs require them to confront vio-
lence, and in some circumstances to respond with violence—for
example, members of the armed forces and law enforcement
officers—such tests may be extremely useful. This might be
thought of as identifying “violence-eligible” individuals.

Competencies and Capacities

Though it may not be immediately apparent, determining

whether someone has the capacity to act in a legally binding or
efficacious way—perhaps to sign a binding contract, make deci-
sions regarding one’s medical treatment, or manage one’s
affairs—shares some similarities to the prediction of behavior.
Both assessments can influence how we think about a person’s
legal responsibility for his or her behavior. Regarding a person’s
capacity to act, we may look for diminished ability to do what
the law expects or requires and subsequently either release the
person from a legal responsibility or prevent him or her from
exercising an option. In general, the law assumes that adults can
act in a way that has legal effect. Advances in understanding
memory processes, neural circuitries, and the relationship of
4. One notable exception regards people who have already committed violence,
and the question is the likelihood of their committing further acts of violence.
We routinely make decisions on tendencies in the criminal justice system,
though we generally reserve such predictions for the most violent offenders.
However, we do not do it prior to an initial act of violence.
Monitoring and Imaging the Brain 11

genetics to neurological function may help to develop increas-

ingly sensitive and accurate methods of evaluating competen-
cies, particularly when paired with advances in neuroimaging. In
addition, new medications developed for the treatment of mem-
ory disorders may play a future role in competency issues by
offering treatment to help ascertain or preserve competency.

Neuroscientific Lie Detection

An area of brain monitoring or imaging with immediate

obvious value in the law is the development of neuroscience-
based lie detection. Several technologies are currently being
explored. However, the neuroscientists cautioned, the existing
techniques are not based upon a clear neuroscientific under-
standing of the phenomenon of lying. The lack of any underly-
ing cohesive theoretical framework means that the current work
relies solely on experiments correlating brain activity with the
act of lying, essentially “shooting in the dark.”
The most significant hurdle facing accurate lie detection is
what could be termed “the problem of memory.” While it
seems likely that techniques might be developed to detect when
someone is intentionally lying, several scientists expressed
doubt that one could easily detect when someone is merely
mistaken—that is, when someone is subjectively telling the
truth but is factually wrong. While this circumstance may be a
hurdle that will one day be overcome, scientists viewed it as a
substantial problem common to many of the scientific
approaches to lie detection.
Even if 100 percent accurate lie detection becomes avail-
able, two legal issues are undeniably important: the role of the
jury and compulsory testing of witnesses for veracity. The
evaluation of witnesses and the credibility and weight of their
12 NEUROSCIENCE AND THE L AW

testimony are matters for the jury (this is true for jury trials; in
bench trials, it is the judge). Therefore, in allowing scientific tes-
timony regarding truthfulness as evidence, the court may be
invading the purview of the jury. At minimum, there will be con-
cerns about whether such evidence may have undue influence.
Members of the jury may weigh “scientific evidence” more
heavily than their opinion as formed by their own senses, and
may do so specifically on the question of truth. Evaluating the
credibility of witnesses has been held to be a core function of the
jury and a determination that should rest on the evidence of the
jurors’ own senses, not to be replaced by expert testimony on
truthfulness.5
Several concerns are raised by the possibility of allowing
witnesses, including defendants, to be tested for truthfulness.
Aside from Fifth Amendment concerns about being compelled to
testify against oneself, should the judge or jury be allowed to
consider a defendant’s refusal to take such a test? As polygraph
tests are rarely admissible, the legal implications arising from the
accurate testing of defendants have yet to be examined, but with
accurate, neuroscience-based lie detection techniques, they
might come to the fore. Could a party subpoena a witness and
demand a lie detection test? Issues of safety would be a concern,
as the use of brain imaging technology carries with it some
amount of risk, however minimal. Issues of privacy would also
be raised—what else might be learned, what else might be
asked? Could a person be compelled to answer a subpoena while
being monitored for veracity? Clearly, issues abound, making
neuroscientific lie detection a strong candidate for future study
and discussion.
5. See United States v. Scheffer, 523 U.S. 303 (1998).
Monitoring and Imaging the Brain 13

Detecting Bias

Closely related to the issue of lie detection is that of detect-

ing bias. Early research has shown that brain activity associated
with strong emotion can be detected when people who are biased
toward certain groups are shown pictures of members of that
group. While such research is in early stages, again the uses
seem broad in scope: jury selection, discrimination cases, and
employee screening, just to name a few. The difficulty arises in
determining exactly what the person being tested is reacting to,
and why. While the brain activity may be correlated highly with
bias, it may correlate with other beliefs or states as well.
The concept of detecting bias raises a familiar question, one
that also permeates the consideration of prediction. To what
extent do we, as a society, wish to judge people based on what
we perceive they are thinking rather than what they say or do?
This is not a trivial matter; it is near the core of our justice sys-
tem that we reward people, punish them, or hold them responsi-
ble for their actions, not for their thoughts (or potential actions).

Brain Death

The final monitoring topic is determination of brain death.

The question is whether the definition and determination of brain
death might be better informed or substantially changed by neu-
roscientific developments. The current standards are primarily
focused on brain stem death—the areas of the brain that deal
with the automatic processes of the body, such as respiration and
heartbeat. Improvements in understanding and monitoring brain
function may well influence definitions of brain death by focus-
ing attention on higher cerebral function and on when speech,
cognition, learning, consciousness, and other defining human
characteristics are irretrievably lost.
14 NEUROSCIENCE AND THE L AW

One constraint on the impact of new neuroscience in this

area is the extent to which substantial work has already gone into
defining brain death, with input from many groups and with sub-
stantial moral and religious literature to draw on in conceptual-
izing and defining the state of being “brain-dead.” The current
system balances important social, legal, religious, ethical, and
moral concerns, and many meeting participants expressed a
sense of caution about upsetting that balance.

Modifying the Brain

W HILE one might reasonably expect that the monitoring

aspects of brain science would precede the modifying
technologies, it turns out that some modifications are already
available and may soon pose serious legal questions. On the
horizon is a host of what may generally be termed enhance-
ments, but one modification currently available—the pharmaco-
logical treatment of addiction—already raises numerous points
for discussion.

Enhancements

While we may think of enhancements as only major changes

to the brain—cell transplants, chip insertion, and the like—in
reality, many of these changes are so far off as to make address-
ing them impractical. However, some enhancements of a phar-
maceutical nature are immediately available, and they can serve
as a template for contemplating some of the larger issues of
enhancement.
Modifying the Brain 15

Enhancement raises policy questions of the largest scale,

evoking concerns about distributive justice, disadvantaging
effects, and the potential of creating an un-enhanced underclass.
The general concern may be that those with privilege will seek
enhancement to develop a competitive advantage over less priv-
ileged individuals.
One use with significant potential for controversy is the off-
label use of drugs such as Ritalin to improve attention and per-
formance in scholastic testing. The example of the Scholastic
Aptitude Tests (SATs) illustrates these issues clearly. Should we
test students for Ritalin use immediately after the SATs, and, if
they test positive, void their scores? Have the students using
Ritalin plied an unfair advantage? Or is performance enhance-
ment with a drug comparable to SAT prep courses, which may
provide students advantages over those without access to such a
course? The difference between the two, it may be noted, is that
the prep course requires effort. In addition, the use of drugs
(even very safe ones) entails health risks.
Reflecting on Ritalin and the SAT highlights a strong aspect
of the American legal system: the focus on individual rights will
make it difficult to ban or restrict enhancement technologies sim-
ply because they may disadvantage those without them. With
that in mind, consider the opposite: when can enhancement be
ordered?
The case of mandated enhancement arises in the following
hypothetical example: could a court or other authority ask or
compel someone to take a selective serotonin reuptake inhibitor,
a class of drugs commonly prescribed for depression (among
other disorders), in order to make that individual less angry, less
impulsive, and less irritable, even though the person does not
have a diagnosed psychiatric condition? Could we ask or compel
prisoners to take medication to improve their state of mind or
16 NEUROSCIENCE AND THE L AW

disposition? Could it be a condition of probation? Such uses

raise substantial ethical concerns, as well as some potential con-
stitutional issues about the “integrity of the person” and the
extent to which the state can interfere with the functioning of an
individual’s mind. By definition, the person who is the target of
enhancement efforts does not suffer from an illness, but falls
within the normal range of behavior. The real ethical and legal
concerns in the situation of mandatory enhancement may not be
court-ordered medication, but instead “soft” coercion by the
state to “voluntarily” take the medication (by making it a condi-
tion for early release from prison, for example). Accordingly,
enhancements were an area many felt warranted further study
and attention.

Treating Addiction

One type of enhancement with immediacy and pertinence is

modification of the brain to treat addiction, particularly addiction
to opiates. Treating addiction is viewed by many as a long-term,
if not lifelong, process. The relapse rate is high, and the legal
penalties for illegal opiate use are substantial. Neuroscientists
working in this area have demonstrated that the brains of addicts
are different from those of nonaddicts and have found evidence
of a genetic predisposition toward addiction.
As it turns out, highly effective pharmaceutical treatments
for opiate addiction, with few or no side effects, are currently
available and yet not widely used. Here is a clear example where
neuroscience could directly influence and impact law, but it has
not. For example, one drug, naltrexone, serves to block the
pleasurable or rewarding effect of the opiates. By blocking the
receptors to which the drug binds, the medication makes relapse
impossible as long as the individual continues to take it. The
Modifying the Brain 17

clinical problem is to achieve compliance with the medication

schedule. Compliance could be ordered as a condition of proba-
tion or parole. Such mandated adherence to medication would be
facilitated by a preparation of naltrexone that would act over a
prolonged period, which is currently in the FDA approval
process. As long as former opiate addicts were required to take a
monthly injection, they could not relapse into opiate addiction.
Successful drug treatment not only reduces the health risks asso-
ciated with drug use, but also eliminates the legal risk of incar-
ceration for possession of drugs or drug paraphernalia. Drug
addicts could, in theory, be diverted to a mandatory treatment
program at a much lower cost than incarceration.
The naltrexone example raises the question of how such a
discovery can result in changes in law and policy. Treatment for
addiction perhaps serves as the best example of the need for
efforts whereby lawyers and scientists seek to inform each
other’s work. While it is not obvious how this particular issue
might change the law, clearly a continuing dialogue should be
maintained and a greater effort should be made to facilitate
future and continuing education and interaction between the neu-
roscience and legal fields. Such efforts may reap real, and possi-
bly immediate, benefits.

Cross-Cutting Legal Issues

A S noted at the beginning, some legal issues cut across the

monitoring/modifying distinction this report has used to
consider neuroscience developments. Significant cross-cutting
issues that arose in a variety of contexts include: discrimination,
privacy and confidentiality, “pre-formal” uses of neuroscience,
18 NEUROSCIENCE AND THE L AW

and intellectual property. In addition, just as the science is still

developing, the current state of the law regarding neuroscience
specifically is even more nascent. Still, to the extent that antidis-
crimination statutes may restrict how neuroscience techniques
are used, or that intellectual property concerns may have a limit-
ing effect on research, some brief consideration of the potential
impact of the law on neuroscience is also appropriate.

Discrimination

Discrimination is a concern with both monitoring and mod-

ifying technologies. The use of monitoring technologies, partic-
ularly in predictive applications, could lead to the pigeonholing
of children, the denial of opportunities, and other forms of dis-
crimination or “neurological prejudice.” Similarly, limited
access to modification technologies could produce a growing
divide between those with access to enhancements and those
without, creating a “neurological underclass.”
Concerns of discrimination based on neuroscientific tests or
procedures have some similarities to concerns about discrimina-
tion based on genetic tests, procedures, or information. In both
cases, the risk is that people will be disadvantaged based on their
biological makeup—either of brain or DNA—rather than judged
on their own demonstrated abilities or accomplishments.
Interestingly, while genetic discrimination has stimulated a fair
amount of activity—including congressional hearings, proposed
federal legislation, some enacted state legislation, and numerous
meetings by various august bodies—very little litigation has
arisen to date. Possibly, neuroscientific discrimination situations
could be similarly slow to develop, with the legal and scientific
communities leading the charge to examine the issue before such
cases arise. Work being done currently on genetic discrimination
Cross-Cutting Legal Issues 19

may serve as a good model and guide for future efforts to address
the risk of neuroscientific discrimination.
Two ideas explored in the discussions of genetics are partic-
ularly worth considering in regard to neuroscience. The first is
the idea of “exceptionalism,” a concern that passing laws and
specific rules for neuroscientific discrimination will lead to a
public perception that information about our brains is more
determinative of our well-being and behavior than it is in fact.
Singling out neuroscientific information for special protection
seems to indicate that an exceptionally powerful amount or type
of knowledge is there—hence, exceptionalism. So while dis-
crimination based on neuroscientific knowledge is a risk the neu-
roscience and legal communities should work to minimize, it is
not clear that a new legal structure specific to neuroscience
should be developed. An alternative path may be to strengthen
existing antidiscriminatory statutes and schemes to include dis-
crimination based on neuroscientific information.
The other idea with a parallel in genetics is “neuroscientific
essentialism”—the idea that the essence of who you are is your
mind/brain. However, the essentialism argument may not be as
vigorously questioned in neuroscience as it has been in genetic
science; people may come to see their brains as much closer to
who they are than they do their genes. If so, then neuroscientific
essentialism could drive discriminatory behavior (or concerns
about preventing such behavior) in a way that neuroscientific
exceptionalism does not. That is, if many people feel that their
minds/brains truly are the essence of who they are, the public
may be less resistant to using neuroscientific information to
evaluate people than to using genetic information (which people
seem to understand does not define “who” they are).
One key way to reduce the risk of discrimination based on
neuroscientific information, of course, is to limit or restrict
20 NEUROSCIENCE AND THE L AW

access to that information, making it available only as appropri-

ate for uses that society deems acceptable. Accordingly, such
distinctions present questions of privacy and confidentiality.

Privacy/Confidentiality

The issues of privacy (keeping information one does not

want known from being discovered by others) and confidential-
ity (keeping information that must be disseminated from going
to unintended recipients) have strong parallels with the concern
about genetic and other health information. Much of this infor-
mation would be gathered in a health-care context and would
likely be protected as other health-care information is, under the
federal Health Insurance Portability and Accountability Act
(HIPAA) and by state laws regulating the confidentiality of med-
ical information. Other information would likely be gathered in
a research context and would be subject to the confidentiality
protections covering research subjects. So, while the risks inher-
ent in possible breaches of privacy and confidentiality are an
important concern, some good protective measures are already in
place and vigilant enforcement of those protections may protect
against most problematic disclosures.
However, the scope of information gathered is a significant
issue that the current standards and practices may not be pre-
pared to address. Compared to the results of a blood test for the
presence of a specific antibody, the data produced by a single
imaging procedure is considerably broader in scope. When scan-
ning a brain for one particular characteristic or marker, the
machine records substantial additional (or collateral) informa-
tion. This collateral information may be sufficient to identify
other characteristics, markers, or conditions that can be used to
discriminate, or that the person being tested would like to keep
Cross-Cutting Legal Issues 21

private. What if, in addition to the information originally sought,

a brain scan reveals signs of early-stage Alzheimer’s?
Addressing the issue of collateral information will be particular-
ly important when testing is being sought or ordered by the state.

“Pre-formal” Usage

While many of the uses of neuroscience addressed in this

report are in “formal” contexts (lawsuits, competency proceed-
ings, criminal trials, and other proceedings), a cause for concern
could be how the legal system might use neuroscience in “pre-
formal” ways—particularly prior to bringing criminal charges,
but in other situations as well. For example, a defense counsel
could bring test results to prosecutors as part of a pre-charging
dialogue, seeking dismissal, reduction of charges, or some other
outcome. Such usages would be essentially unreviewable, and
possibly nonpublic. While the exact nature of these pre-formal
usages is unclear, it seems prudent that both lawyers and neuro-
scientists consider how such uses might be dealt with in ways that
are both legally and scientifically appropriate. The scientific and
legal communities may even wish to go so far as explicitly to
explore such possible uses and to begin a dialogue on standards,
knowledge, and scientifically appropriate uses.

Intellectual Property Issues

In general, neuroscience seems unlikely to pose any new

challenges for intellectual property law. To the extent concern
may be warranted, it relates to the possibility that neuroscience
patents could restrict the development of “downstream” or deriv-
ative products.
22 NEUROSCIENCE AND THE L AW

A patent is a type of property right granted to an inventor (the

“patent holder”), giving the exclusive right to the use of some
invention (including mechanical devices, chemical compounds,
and manufacturing processes) for a limited period of time. While
the inventor is rewarded by exclusively profiting from the fruits
of his or her labors, the larger society benefits by requiring the
inventor to disclose the details of the invention as part of being
granted a patent. This disclosure allows others to improve, modi-
fy, and otherwise build on the patented invention. Products devel-
oped using the patented invention are referred to as
“downstream” products. A patent holder can prevent or restrict
the use of the patented invention (for the period of the patent),
thereby preventing the development of downstream products.
The risk of restricting downstream product development is not
exclusive to neuroscience patents, but given the fact that these are
inventions with potential applicability to our brains and our well-
being, it may be a particularly sharp area of concern.6

Future Directions

T HE need for increased interaction among the legal and neu-

roscientific disciplines is apparent. One useful form would
be scientific educational efforts designed to inform lawyers and
judges. Similarly, neuroscientists could benefit from education
in the legal system’s use of science and the types of uses lawyers
and judges foresee for neuroscience. Establishment of a formal
body, an ongoing conference, or some other mechanism to allow
6. Of course, the same concerns hold true in non-neuroscience areas as well—
gene therapy patents, for example.
Future Directions 23

lawyers and neuroscientists to inform each other’s work could

also be quite valuable.
In a related vein, the two communities might cooperate in
establishing which neuroscience methods are legally useful and
scientifically sound. While the law will likely incorporate new
neuroscientific knowledge successfully, less clear is how that
might best occur. Several participants suggested the two fields
could consider developing an accrediting process (for labs and
technologies), or encourage some legislatively driven creation of
an approval process.
Finally, one lawyer made the case for expanded clinical test-
ing of the neuroscience technologies likely to be used in legal
settings:

“[Y]ou should be able to do pretty good controlled

clinical-trial kinds of experiments to see whether these
things work, whether they work for everybody,
whether they work for only certain people, whether
you can beat it…
You want to put a new drug out, the FDA requires you
to go through years and years of detailed clinical trials.
There’s no such requirement for nonmedical technolo-
gies. Does anybody have the interest, the funds, and the
will to fund serious rigorous clinical testing of these
technologies? If the answer is no, I’d suggest the answer
should be changed to yes.”

While these sentiments specifically refer to lie detection

technologies, opinions like it echoed throughout the meeting
regarding many of the technologies discussed. The lawyers rec-
ognized that many of the relevant neuroscience developments
24 NEUROSCIENCE AND THE L AW

are in their earliest stages of exploration but felt the scientists

should consider explicit clinical testing of neuroscience tests and
technologies for courtroom and other legal uses.7
In the end, the overarching concern, strongly expressed, was
that lawyers and neuroscientists alike be cautious about how
brain science is used and presented. For the well-being of both
fields, the science must be presented, used, and discussed in a
realistic and accurate fashion, one that reflects both the limita-
tions and the potentials of the science. As one participant put it,
it is time for neuroscientists to start identifying and delineating
the boundaries of what is known and likely to be knowable—the
limits of neuroscience knowledge. In turn, this process will
enable the legal community to appreciate better what neuro-
science can and cannot tell us, and to what uses neuroscience can
be put in the service of the law and of society. Simply that the
future is not fully knowable is not reason to delay the dialogue.
As one neuroscientist noted, “[We] really do have an obligation
to think about things, even if they don’t seem likely right now,
because they will come faster than we can possibly believe.”

7. In general, early scientific research is considered more “pure” than “applied”

research, in part because initial exploratory work is often necessarily descrip-
tive and explanatory, rather than an attempt to manipulate or alter the phenom-
enon or mechanism under investigation. In the case of neuroscience, many
applied uses are only beginning to be developed. In the meeting, the lawyers
were essentially arguing that, since we expected the scientific knowledge and
the technologies to be used in legal settings, perhaps researchers should con-
duct some experimentation directly addressing the potential legal uses.
 Acknowledgments

A AAS thanks the neuroscientists, legal scholars, lawyers,

and judges who contributed to the meeting on which this
summary report is based, and authors Michael S. Gazzaniga,
Megan S. Steven, Henry T. Greely, Stephen J. Morse, and
Laurence R. Tancredi for their contributions. The project bene-
fited from the support of Floyd Bloom, former chairman of the
AAAS Board of Directors, and Alan I. Leshner, CEO of AAAS.
Mark S. Frankel and Kristina Schaefer played key intellectual
roles in developing this project. The Dana Foundation provided
both financial and publishing support as well as use of its facili-
ty, the Dana Center, in Washington, D.C. Dana staff members
Barbara Gill and Karen Graham provided logistic support; Dana
Press staff on this project were Leticia Barnes, Randy Talley, and
Jane Nevins.

—Brent Garland

25
 Index

A
Access to information. See Privacy and confidentiality concerns
Addiction treatment, 14, 16–17
American Association for the Advancement of Science (AAAS), 1–2
B
Behavior
descriptive biology, 5
link to brain, 1
predictive biology, 5–6
Behavior prediction, 3, 4, 5–9
violent behavior, 9–10
Bias detection, 13
Brain, link to behavior, 1
Brain death determination, 4, 13–14
Brain modification and enhancement, 3, 4, 14–16
addiction treatment, 14, 16–17
C
Clinical testing of tests and technologies for legal/courtroom use, 24
Collateral information, 20–21
Competency and capacity determination, 1, 10–11
Court-ordered pharmaceutical treatment, 15–16, 17
Cross-Cutting legal issues
about, 17–18
discrimination concerns, 3, 18–20
intellectual property issues, 21–22
“pre-formal” usage concerns, 21
privacy and confidentiality concerns, 12, 20–21

27
28 NEUROSCIENCE AND THE L AW

D
Dana Foundation, 2
Discrimination concerns, 3, 18–20
Distributive justice, 15
Drug addiction treatment, 14, 16–17
E
The Economist, “Open Your Mind,” 1
Enhancement. See Brain modification and enhancement
“Exceptionalism,” 19
F
Free will and responsibility, 1, 6–8
responsibility for actions versus thoughts, 13
“Free Will in the Twenty-first Century: A Discussion of Neuroscience
and the Law,” 2
Future directions for neuroscience and the law, 22–24
G
Garland, Brent, 2
Gazzaniga, Michael, 2, 7n
Genetics, concerns paralleling, 9, 18–19
Greely, Henry T., 2, 9n
H
Health Insurance Portability and Accountability Act (HIPAA), 20
Human enhancement. See Brain modification and enhancement
I
Imaging and monitoring technologies
abuses, 4
behavior prediction, 3, 4, 5–9
bias detection, 13
brain death determination, 4, 13–14
competencies and capacities determination, 10–11
lie detection, 3, 4, 11–12, 23
potential social/ethical implications of technologies not yet fully
developed, 4
violent behavior prediction, 9–10
Index 29

Intellectual property issues, 18, 21–22

Inventions and patents, 22
L
Law. See Cross-Cutting legal issues; Neuroscience and the law; specific
issues and concerns
Lawyers and judges, neuroscientific education efforts, 22
Legal education for neuroscientists, 22
Lie detection, 3, 4, 11–12, 23
M
Mandatory pharmaceutical treatment, 15–16, 17
Memory, as a problem in lie detection, 11
the Mind. See also Free will and responsibility
“neuroscientific essentialism” and, 19
as predictable, 6
Mitigation and perception of risk, 8
predicting violence, 9–10
Morse, Stephen, 3, 7n
N
Naltrexone, 16–17
“Neurological prejudice.” See Discrimination concerns
Neuroscience
applied uses of knowledge, 24n
caution in use and presentation of, 24
limits of knowledge, 24
organizing principle for discussion, 4
Neuroscience and the law
accrediting and approval processes, 23
considerations, 3–5
explicit clinical testing of tests and technologies for legal/court-
room use, 24
formal body establishment for, 22–23
future directions, 22–24
how developments interact with the law, 1–3
increased interaction between practitioners, 22–24
questions raised, 3
30 NEUROSCIENCE AND THE L AW

Neuroscience and the Law: Brain, Mind, and the Scales of Justice, 2
“Neuroscience Developments and the Law,” 2
“Neuroscientific essentialism,” 19
“Neuroscientific underclass,” 9, 15
Neuroscientists, legal education efforts, 22
“New Neuroscience, Old Problems,” 3
P
Patents, 22
Pharmacological treatment
of addiction, 14, 16–17
for brain enhancement, 14–16
Polygraph tests, 12
“Pre-formal” usage concerns, 21
“Prediction, Litigation, Privacy, and Property: Some Possible Legal
and Social Implications of Advances in Neuroscience,” 2
Privacy and confidentiality concerns, 12, 19–21
R
Rationality and reason, 7–8
Responsibility. See Free will and responsibility
Ritalin, 15
S
Safety issues in lie detection technologies, 12
Scholastic testing, brain enhancement and, 15
Scientific education for lawyers and judges, 22
Social impact of predictive technologies/techniques, 8–9
T
Tancredi, Laurence, 2
U
Unfair competitive advantage, brain enhancement and, 15
V
Violent behavior, 1, 9–10
W
Witness evaluation, 11–12