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Learning from Law's Past: A Call for Caution in
Incorporating New Innovations in Neuroscience
Jennifer S Bad a
a Texas Tech university SchOU of Law,
First PubliShed on: 01 september 2007
To cite this Article: B<rd, Jennifer S, (2007) 'Leamlng from LaN'S Past: A Call for
Caution in Incexporating New Innov2tions in Neuroscience', The American J::lurnal of
Sloelhics, 79, 73 - 75
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Functional Neuroimaging and the La,,\,
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NeurGsci.eliCe) 7(9): 44---56.
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theneurn.
Learning from Law's Past: A Call
for Caution in Incorporating New
Innovations in Neuroscience
Jennifer S. Bard, Texas Tech University School of Law
Stacey 'Iovino's (2007) careful survey of the range of legal
issues implicated by the CUlTent advances in brain imaging
is an important contribution to the field of neurola\v, and I
believe her revie'w will become foundational. Rather than
comment on any of the specific areas of law she has identified, all of which 1 completely agree will be affected by the
new imaging technologies, 1 'p,rouldlike to make some over
all comments on the relationship of la'i'v, as distinct from law
and ethics to brain imaging. 'What I 'i,vant to give primacy to
is a call for caution 'i'vHh regard to using the technology in
any field of law. 'rVe in law have an unfortunate history of
jumping onto ne'p,r tedmologies only to find later that they
do not live up to our expectations. In large part, I believe this
is because there are so many areas of the linv that involve
matters that carmot be quantified or definitely proved.
Often, lav,ryers are trying to reconstruct an event that
happened long ago or are trying to prove or disprove inher-ently intangible things such as the level of someone's pain
from a physical or mental injury. As I 'will detail in the following text, there have been many technologies which 'ive
have had to v,ratch as each new tedmology is first hailed as
a definitive, scientific solution 'i'vhich 'i,vil1 incontrovertibly
prove or disprove the maHer in dispute. 1l1ere are other ex
amples of disappointments that are not related to proof, but
rather promise ne\v solutions to v/hat had become unacceptable problems. Not to hide the ball, I refer here to the quest
for a humane method of carrying out the death penalty.
Civen this history of early adoption followed by very
disappointing failures, I urge that that adoption ofnevv brain
imaging technology, and indeed all new tedmology not be
in advance of the pace of scientific research. In other words,
we in law need to be not just sure but very sure that 'i'vhen
live use a nev,,' technology 'we are doing so only to the limit
at which science can offer an adequate assurance that the
technology is indeed a reliable method of obtaining the information or result that 'i,ve are asking of it. In so doing, we
must confront the reality that no technology 'i'vill every be
1C)(Y:i~ reliable and that it may take a long time to discover in
\vhat 'Plays the technology is unreliable. A call for caution,
however, is not a call for Ludditism. It is simpl.y a waluing
that 'i,ve must appreciate that there will always be a risk of inaccuracy or inability to perform and that we must in advance
establish the level of acceptable risk. Because the purpose
of this comment is to be short and directly responsive to the
target article, I make no claim that the follmving paragraphs
provide anything such as a full history of the technologies
we lawyers have adopted quickly and repented at leisure.
1 also will not elaborate on the current legal test for admission of scientific evidence into court because my concenlS
are directed to the technologies themselves, not to their ad
missibility. For a clear overvie'iv of this process there are several helpful texts in evidence (Mueller and Kirkpatrick 2003,
651-691) and law and science. (Areen et a1. 1996, ,150-483;
SuHon 2001,
I livill further disclaim that I am not
Address correspondence to Jennifer S. Bard, Texas Tech Unive..l'sity School of Lell'v, 1802 Hartford Ave.nue, Lubbock, TX 79366. E-mail:
iennifer.bard@thl.edll
September, Volume 7, Nmnber 9, 2007
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an expert in the history of technological disappointments in
the law and can guarantee I am excluding -p,rhat may be the
best examples. Fl:owever, here are four instances in ';,-,rhich
technology \vas adopted quickly with great hope of solving
a problem and was later discovered to be at best not as re-liable as expected and at V,rorst completely useless. I v,rill
also note the consequences of these failures which, certainly
in criminal matters involving IHe and death, are often quite
serious.
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EYEWITNESS TESTIMONY
It is interesting how little the research of Elizabeth Loftus
and her colleagues on the unreliability of eye"vitness testimony has penetrated either legal education or legal practice
(Loftus and Do.VIe 1992; Mueller and Kirkpatrick 2003, 678680). Despite study after study in \vhich she, and those so-cial scientists -who have reproduced her -work, have shmvn
that people not only are mistaken about "vhat they have
witnessed but actually come to believe fully that v,rhat they
think the.'v saw is what they did see. Although the unreliability of eyewitness testimony is discussed when the witness
is a child, it is still true that in most cases when a \·vitness
whom a jUl)!1 prosecutor or judge perceives as respectable
testifies that he or she say\' something, unless another
witness provides equally persuasive contrary testimony,
the testimony is accepted as an accurate account of what
happened.
Although it is common in cross-examining an eyewitness to question, the conditions surrounding the
identification if\vas it: dark?" Ii\·vere they wearing their
glassesF' f/where were they standing?" ------it is not common
to present direct evidence that eyev/itness testimony is neY!
reliable. I think this is the case because unless directly challenged by a personal experience in which we believe we sa\v
something but actually did not (and evidence professors he
quently stage these events in classrooms) we all have an in-herent belief that the most reliable evidence is that v/hich
we see ourselves.
THE POLYGRAPH MACHINE
When first invented, lie-detector machines seemed like a
dream come true the fruition of the promise of certainty
through technology was bringing to the 20th century. Based
on observable measurements of physiological functions r the
machine promised the ability to distinguish between a person who Vlas telling a lie and telling the truth. 'nlis promise
was hailed not just by the legal system but perhaps more
frighteningly by the various military and national security
agencies entrusted with preserving the nation's safety by
making sure that secrets did not fall into the hands of enemy
agents. It Vlas also \videly adopted in various commercial
settings to screen job applicants and employees accused of
theft or other misdeeds. Unfortunately, on further study it
\vas discovered that although the machine did accurately
measure these bodily functions such as blood pressure and
heart rate, there was no reliable correlation between these
functions and truth telling. Many states "viII not permit any
polygraph evidence and some will only permit it with the
agreement of both parties (lvlueller and Kirkpatrick 2003,
675---678). It is the early promise and inherent plausibility of
the lie detector's ability to ascertain truth telling that should
be the closest cautionary example for use of functional magnetic resonance imaging (fMRI) tedmology as a lie detector.
Although earl.'v results are promising that an fMRI can identify patterns in thinking, it is not yet and may never be the
case that it untangle the very complicated human behavior
of lying.
DNA ANALYSIS
The most recent example of a much heralded technology
turning out to have unexpected limitations is the growing
bod.V of evidence that it may be possible for a single inclividual to have more than one set of DNA (Arcabascio 2007).
'nle consequence of this finding is to call into question what
has become an accepted fact: that a failure to match an in
dividual's DNA with that found at the crime scene or even
inside the body of a rape victim is sufficient proof to release a person from prison. The reliability of DNA evidence
IS currently the gold standard for individual identification
(Mueller and Kirkpatrick 2003, 668673), and has such a
strong hold on the legal system that there are many active
programs to free convicted felons based on re-examination
of evidence in light of DNA technology. 'There has always
been concerns that, \·vhen the jury is told of a DNA match,
the match is represented as {'prooe that the sample tested is
the defendant's DNA. In fact, DNA evidence only indicates
the probabilit.V that the DNA belongs to someone other than
the defendant (Mueller and Kirkpatrick 2003, 672). However, recent reports in the popular press that the phenomena of 1::\vo embryos merging to create one person with more
than one set of DNA casts doubt on the underlying principle
of DNA evidence,which is that ever.v person has a single
and unique DNA makeup. While human chimeras may be
as rare as their mythical counterparts, they will cast doubt
on the reliability of DNA evidence until reliable research is
conducted on the existence of these phenomena and, more
importantl.v; on their prevalence.
HANDWRITING ANALYSIS
At one timer handwrlting experts \·vere touted as having a
special ability to identH)! hand\vriting and to compare 1:\vo
handwriting samples. VVhile these experts still exist! their
rate of accuracy has not met expectations and in most juris-dictions any person is as qualified as any declared expert to
compare a known writing sample of a person and a second
sample v,rhose authorship is disputed. Indeed, the jury is often allowed to do this themselves (Mueller and Kirkpatrick
2003/1005).
SUMMARY
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'fhis list could be extended to other tedmologies which held
~rTeat promise, were adopted \vith enthusiasm and turrted
September, Volmne 7, NumbeT 9, 2007
Functional Neuroimaging and the La..\'
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out to be at best much less reliable than hoped. In the case
of neuroimaging I believe that, although the lay\' has no
choice but to address the current reality that it exists! v/e
must be very careful not to get ahead of the science by ascribing a level of validity and reliability to the technology
beyond that v,rith which V,re v,rauld be comfortable in other
areas. III
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Arcabascio r C. 2007. Chimeras: Double the DNA-double the fun
for crinte scene investigators, prosecutors, and defense attorneys·?
Akron Law l<eview 40: 435.
LofhlS, E. 1996. Eye n;itness testimony. Cambridge, MA: Harvard
University Press.
Mueller,
c., and L. Kirkpatrick. 2003. E'vidence. New York, NY:
As-
pen Publishers.
Sutton, V. 2001. Tomv ami science. Ne,v York, NY: Carolina Press.
REFERENCES
Areen, Let aL 1996. Law, science and medicine, 2nd ed. Westbury, NY:
The Poundahon Press.
September, Volume 7, NlUIlber 9, 2007
Tovino, S. A. 2007. hmctional nemoimaging and the hw: Trends
and directions for future scholarship. Ameru~an JounUil of BiDethu:s
(.AJOB-Neuroscu:nce) 7(9): 44-56.
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