The Center for Law, Brain and Behavior brings together experts in the fields of neurology, psychiatry, neuroimaging and the law in order to make a scientifically well-grounded translation of medical concepts when they reach the legal realm.
The Center will undertake projects in three over-arching intellectual domains during the first three years of its operations. Each of these projects has an internal timeline for academic productivity and a research agenda which extends beyond the first three years of the Center. These projects have been selected because of the importance of the questions they attempt to answer and their immediate usefulness to the greater legal community. The co-directors of the Center will determine which research topics will be added to the core projects set forth below, in consultation with the permanent faculty members.
As new neuroscientific discoveries are introduced that help answer questions and determine central issues regarding competency, impulsivity and personal responsibility, it will be vital for decision-makers to have scientific and ethical guidelines for applying new technologies to complex legal situations. Whether the issue is as distinctive as determining the competency of a cognitively impaired person to make decisions or as collective as how to interrogate a suspected terrorist, fact finders need clear and widely accepted guidelines on which technologies or instruments deserve evidentiary weight and which are in the unreliable stages of nascent development. The Center faculty hopes to educate judges, attorneys, guardians and professionals in civil contexts with these scientific and ethical guidelines.
With strong and experienced leadership already in place, and a multidisciplinary faculty in law, neurology, psychiatry and neuroimaging, MGH and the Center for Law, Brain and Behavior are uniquely suited to tackle the development of new neuropsychological instruments, neuroimaging protocols, scientific guidelines and evaluative research that ultimately ensures responsible and scientifically based translations of medical concepts into legal settings.
In 2000, there were 33 million Americans aged 65 or older and the number is expected to increase steadily over the next 50 years. Many of these elderly citizens have dementing illnesses such as Alzheimer Disease, which presently affects approximately 5.2 million people in the United States and by the year 2050 may affect between 11 and 16 million people. These figures do not include other dementing illnesses such as trauma and stroke-related dementias. These illnesses cause difficulties with decision-making, even in early, and sometimes pre-dementia, states. In addition, accompanying neuropsychiatric changes such as agitation, depression and anxiety also affect decision-making. The elderly, who often display cognitive deficits and emotional changes associated with dementia or other illnesses, may have trouble making informed medical decisions, consenting to experimental treatments, entering into contractual arrangements, undertaking financial obligations, operating a motor vehicle or composing a last will and testament - all with serious ramifications for the legal system.
Cognitive impairments and difficulty with decision making render the elderly particularly vulnerable to financial exploitation, a problem of enormous social and personal costs:
- In state surveys of financial fraud and abuse, women and "older" seniors are more likely to be victimized, and dementia is a significant risk factor for this abuse.
- The National Center on Elder Abuse estimates that only 1 in 25 cases of financial exploitation is reported, suggesting that there may be 5 million financial abuse victims each year.
- In 2004, identity theft, Internet auctions, lotteries, prizes and sweepstakes topped the list of fraud complaints by older Americans, who lost $152 million dollars to con artists.
- According to the Federal Trade Commission, Internet Scams topped the list of consumer frauds in the United States in 2004, and older consumers were defrauded of $43 million dollars in 2004 alone.
- Telemarketing fraud has become a global criminal enterprise and criminal telemarketing rings target older consumers because they are often at home, rely upon delivery services and are lonely for the companionship that telephone callers provide.
Despite the growing magnitude of this problem, there is little uniformity of approach or outcome when courts attempt to assess an elderly person's capacity to make financial and other decisions. Consider the following scenarios:
- A wealthy industrialist suffers a stroke with subsequent cognitive impairment and his children obtain guardianship over his affairs. He has asked his attorney to seek reversal of the guardianship on the grounds that his cognitive impairment was transient and due to the effects of post-stroke medications. How should he be medically evaluated in connection with this petition, and is there a role for neuroimaging studies?
- A widow is living in an assisted living facility and has a modest but steady income from her savings. She has almost emptied her savings account by responding to fraudulent financial offers which come to her in the mail, and promise great financial rewards. Her family members are at a loss regarding how to protect her from such solicitations. Does this woman have the capacity to make her own financial decisions? How should this question be answered, and what role should neuroscience play in her evaluation?
- The successful founder of a family business is now 79, and has hired a Chief Operating Officer to help him run his corporation. Although the founder has some mild cognitive impairments, they have gone undetected because of his high intelligence and fluent social skills. The Chief Operating Officer obtained the founders signature on a stock purchase agreement which effectively gives the COO control over the company. Did the founder have the capacity to enter into this contract? Was he unduly influenced? What are the legal standards associated with this inquiry, and how can neuroscience provide data for these legal standards?
The first project under the Decision Making domain is the project on mild cognitive impairment and decision making capacity. The goal of the initial research is to provide a platform for the development of a new neuropsychological assessment tool which will be useful in the measurement of decision-making capacity in patients who already show signs of mild cognitive impairment.
Subsequent research phases will involve the design and implementation of a study which will determine when a person's documented cognitive impairments (on longitudinal tests) coalesce with functional impairments on clinical and occupational testing. The results of such a study, performed on patients as their cognitive impairments become more severe, may allow us to predict when these cognitive deficits will have a daily impact on basic decision making skills. By improving the ability to determine when mild cognitive impairments actually impair the ability to make decisions and practice good self care, patients and families can be better prepared to meet these challenges. In addition, comparison between the results of suggestibility scales and other measures of cognitive function may help families, attorneys, judges and caregivers protect vulnerable individuals from exploitation or undue influence, as in the vignettes above.
This study will be designed to integrate neuroimaging, in order to correlate neuropsychological test results and operational impairments with functional neuroimages and anatomic correlates of affected brain regions. As a long range goal, the team seeks to devise a new neuropsychological instrument for the assessment and prediction of suggestibility or undue influence in patients with cognitive impairments. The instrument would be geared towards application in legal settings where an individual's decision making capacity is under scrutiny, such as the execution of a will or signing of a contract. As with the measures of cognitive and occupational impairment, these scales would be re-administered to determine whether suggestibility changes over time.
The long-range goal of the decision making project is to improve the understanding of the impact of early cognitive and behavioral change on a variety of decision-making tasks, and devise standardized instruments and evaluative guidelines to assist families, health care providers, attorneys and judicial fact-finders in assessing these capacities. It is the Center's belief that established measures and guidelines will render the elderly less vulnerable to coercive schemes designed to prey on those with impaired cognition.
Projects: The Measure of Truth and Deception
Since time immemorial, scientists have attempted to devise methods of detecting falsehoods. Lie detection has significant implications for the judicial system, as it offers alternatives to coercive interrogations and opportunities for exoneration. The 9/11 terrorist attacks on the United States sparked a new urgency in the field of lie detection, particularly in the use of brain wave measurement ("brain fingerprinting") and functional neuroimaging (fMRI) to detect falsehoods. While the utility of these technologies is obvious, so are the dangers. When compared to lie detection technology of decades past, like the polygraph, new methods may intrude upon fundamental privacy rights and rights against self-incrimination. The reliability, specificity and sensitivity of these tests should be carefully scrutinized before their wholesale importation into the legal system. Consider the following scenarios, which have been adapted from three recent cases:
- A 24 year old woman in India is accused of murdering her fiance. She was required to take a brain wave test designed to show the existence of stored memories about the crime. Prosecutors argued at trial that the test showed experiential knowledge of the crime, and she was convicted of murder and sentenced to life in prison. Was this electrical brain wave based technology valid and reliable? Should it be used without corroborating evidence?
- A man accused of sexual assault and murder agreed to take an EEG based brain wave test regarding the crime. He was shown evidence of the crime which had been kept out of the media and was known only to police. According to the test results, the suspect showed brain wave frequencies that indicated he had a memory of these secret details of the crime. Should evidence of this brain test be admissible at trial? If he had not agreed to take the test, could he be required to do so, or would that violate his Constitutional rights?
- A man convicted of murder spent the last 25 years insisting that he did not commit the offense. He asked to take an EEG based test in order to establish his innocence, as part of his appeal for post conviction release. His test results indicated that his memories were consistent with his original alibi and not with commission of the offense. Should EEG based tests be offered routinely to suspects who wish to exculpate themselves prior to trial? Will this technology and similar technologies meet state and federal evidentiary standards? Do these tests of credibility undermine the functions of judge and jury?
The project on the measure of truth seeks to systematically collect data on available methods of lie detection and scientifically evaluate these technologies as they enter the legal arena. The potential benefits of this work are extraordinary in their scope, and include using the technology as a non-invasive method of interrogation for law enforcement and anti-terrorist initiatives, the use of the technology for exculpation of innocent criminal defendants, and use of the technology in a myriad of civil and employment contexts.
The first phase of this project began in the summer of 2009. Two faculty members from the center and a research fellow began to study three modalities: the polygraph, brain wave technology and fMRI, in order to produce a survey of the nature of these technologies, their potential applications, and the reliability and validity of the technology.
The second phase of the project will be focused on identifying the disparate legal standards regarding the admissibility of this evidence under both state and federal evidentiary rules and examining contexts where such evidence is already being used. The goal of this second research project is to identify what attributes a lie detection technology would have to possess in order to meet admissibility standards in the legal arena.
After the first two research projects are completed, the data from these projects will be used to design a study comparing the results of different lie detection technologies in the same subject. For example, a subject might undergo polygraph testing, brain fingerprinting and fMRI in an effort to determine whether the subject is telling the truth about carefully defined facts. Of necessity, the triple testing would need to be validated with controlled studies on other select populations before extension of this protocol in less controlled settings. Over the long term, we hope that the Center's contributions to the validity, replicability and admissibility of lie detection technology will help further the benefits of this technology.
Projects: Criminal Responsibility
The brain is a complex and fragile organ which can be damaged by traumatic injury, tumors, neurodevelopmental disorders, neurodegenerative disorders, vascular lesions and many other causes. These various forms of injury can affect regions of the brain associated with higher cognitive functioning, memory and emotion, namely the frontal, anterior temporal and limbic regions. These same areas are particularly relevant to behavioral change, and it is not uncommon to see the emergence of behavioral dysregulation and psychiatric disorders related to these brain injuries. However, this relationship is neither linear nor simple. Data has shown that these behavioral changes are the result of a complex interplay between the nature and severity of the brain injury and other factors, such as the patient's social and psychological history, age when the injury occurred, and a host of other dynamic personal traits.
Despite this complex and unclear interplay between brain injury and behavioral change, evidence of such injuries, in the form of structural or functional brain images, is being used in legal proceedings. Evidence is typically introduced to support the proposition that a criminal defendant should be excused from criminal responsibility because an underlying brain defect caused him or her to commit a criminal act. It may also be introduced as mitigating evidence in the sentencing phase of a trial for a capital crime. The proponents of using neuroscience evidence in the courtroom argue that the introduction of brain scans will empower judges and juries to draw more accurate conclusions about whether a defendant is responsible for his or her actions. Opponents of the introduction of "neuroevidence" fear that these scans have not yet been reliably linked to the explanation or prediction of behavior, and that their colorful images and scientific appearance will be overvalued and misunderstood by judges and juries. Consider the following scenarios:
- A 58 year old highly educated and socially prominent man developed severe behavioral problems over a two year period. These included grossly disturbed social behaviors and resulted in his arrest for open and gross lewdness. Neuropsychological testing suggested serious pathology in his frontal lobes, and neuroimaging confirmed atrophy of the frontal lobes. A neurologist confirmed that the man was suffering from Pick's Disease, a form of dementia which presents with personality changes and behavioral disturbances. Should this man be held criminally responsible for his actions? Is a structural brain image sufficient to support the cause and effect relationship between his illness and the crime?
- A 25 year old male was charged with arson in connection with a fire he set in a warehouse. His medical history included infection with a brain virus at age 2 and consequent low IQ, impaired memory and language, and profound behavioral disturbances. In addition, he developed an intractable seizure disorder which persisted throughout his adulthood. His attorney argued that the defendant could not conform his behavior to the requirements of the law and should be held not guilty by reason of insanity. He requested $50,000 dollars from the court in order to perform neuropsychological, EEG and functional imaging tests which might support this theory. Should the court grant this motion for funds? Which of these tests is appropriate for the evaluation of pyromania? Which of these tests is appropriate for evaluating behavioral disinhibition?
- A forty year old woman was an executive with a Wall Street brokerage firm. She was a clearing officer, responsible for receiving and transferring funds from clients. After an unblemished career, she began hoarding client checks in her desk drawer, neither cashing them nor depositing them. The Securities and Exchange Commission detected her lapse, investigated and revoked her securities license. On the advice of a friend, she saw a physician, who recommended a brain scan. An MRI revealed a large, benign tumor near her pituitary gland, which was surgically removed. Her behavior returned to normal. Should her license be reinstated by the SEC?
The project on criminal responsibility will focus on the role of neuroimaging, neurophysiology and neuropsychology and their correlation with criminal responsibility. The overarching goal of the project is to develop a set of scientific guidelines that would delineate which uses of neuroscience in the courtroom have current scientific support, and which uses are as yet speculative.
The first project under this domain will involve a three part research review. The first phase will be to research the existing legal standards regarding exculpatory states of mind (such as lack of appreciation of wrongfulness, acting in the heat of passion, acting on an irresistible impulse). The second phase will involve determining how courts in the United States, particularly the Supreme Court, have viewed and treated neuroscientific evidence when it is used to diminish criminal responsibility. The third phase will involve using the media and jury evidence to determine how the public perceives neuroscientific evidence presented to diminish responsibility.
Once the legal paradigms and evidentiary standards are clear, we intend to generate, publish and disseminate clinical evaluation guidelines tailored to the symptoms under investigation. These might include, for example, guidelines on the appropriate workup of impulse control disorders, cognitive deficits, disinhibited behaviors or sexually deviant patterns of arousal. Ideally in the longer term, the Center will apply these guidelines to pre-adjudication defendants in order to generate data on their usefulness and validity.
The goal of this three part research program is to tailor useful clinical evaluation guidelines to the existing standards for criminal responsibility. It is our hope that widespread acceptance of rational and valid neuroscientific evaluations that are tailored to legal standards will enhance the validity of sound exculpatory defenses while decreasing the inappropriate use of science to diminish responsibility.
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