"No Lie" fMRI to be introduced in court?

Last week, I blogged about neuroscientists' concerns about fMRI brain imaging. Critics say its scientific reliability and validity is far from established, and that if it was introduced in court, its colorful graphics might mislead jurors and judges and derail justice.

Just days later, the good folks over at the Stanford Center for Law and the Biosciences have learned of a pending case in California in which the "No Lie MRI" (I kid you not!) may be introduced in court to establish that a parent did not molest his child.

The case is a child protection hearing in juvenile court, so the records are sealed. The issue is whether a child should be removed from the home due to alleged sexual abuse by a parent, explains blogger Emily Murphy, a Stanford Law School fellow.

According to Murphy, a hearing is imminent on whether the fMri-based "truth verification" technique will be allowed in court. Under California's Kelly-Frye standard for evidence admissibility (which is different from the federal Daubert test), a scientific technique cannot be introduced in court unless it is generally accepted within "the relevant scientific community." The method's reliability must also be established, generally by a properly qualified expert.

If you read my blog post last week, you may be wondering how a novel technique like the fMRI could possibly meet that "general acceptance" standard.

Well, according to Ms. Murphy, the defense will argue that the "relevant scientific community" is a narrow group consisting only of scientists who research and develop fMRI-based lie detection. Tricky, huh? As Ms. Murphy comments:

Limiting the "relevant community" to only those who research and develop fMRI based lie detection is without merit, if only because such a definition precludes effective or sufficient peer-review. Indeed, it is arguable such a narrowly-defined community has a strong incentive to exaggerate its claims of accuracy and overlook unanswered questions for financial gain if such techniques are "legally admissible."

The few practitioners who research and develop fMRI-based deception detection are not the only qualified people to comment on the accuracy and validity of the technique. Statisticians familiar with Bayesian analysis, cognitive neuroscientists familiar with technical and analytical constraints, and researchers working to elucidate the neural basis of memory, decision-making, and social behavior should all make up the "relevant scientific community" for such a complex and as-yet poorly characterized technology. Further, I suspect the community of peer-reviewers that have reviewed the articles being proffered in support of the evidence of fMRI testing on deception is probably a useful proxy for the legally relevant scientific community, and extends well beyond the handful of researchers working directly on fMRI-based deception detection.

As to Murphy's last hope -- that journal peer reviewers could stand in for the legally relevant scientific community -- maybe that would help, and maybe it wouldn't. Remember, as I pointed out in last week's post, researchers at UC San Diego have found that the publishers of leading scientific journals are just as wowed by fMRI technology as everyone else, and they are uncritically promoting studies of questionable statistical merit.

To commercial ventures like No Lie MRI in California and its competitor, Cephos Corporation in Massachusetts, profit is the bottom line. Despite the controversy surrounding the reliability and validity of the lie detection technique, they are aggressively marketing the tools to clients and attempting to get them accepted in court.

Indeed, over at New York University's Scienceline, the president and chief executive of the eight-person start-up Cephos Corporation says he believes it it has a "strong possibility of being introduced as evidence" in court within the next couple of years.

Maybe sooner, depending upon the outcome of this case.

POSTSCRIPT: After opponents to the fMRI's introduction mounted a vigorous opposition and prepared to do battle at an evidentiary hearing, "the proponents of the evidence withdrew their request to have it admitted, thus ending the issue in [the] case," according to a March 25 letter from the San Diego County Counsel's Juvenile Dependency Division. Although fMRI proponents bowed out of this battle, we are sure to see more attempts to prematurely introduce brain scans as evidence in court in the coming months and years.

Postscript thanks to Phil Cave, Court-Martial Trial Practice

My previous post, with lots of links to critical research, is HERE. The image, above, is supposedly an excerpt from the actual case report.

Special issue on sex offending

For all of you sex offender specialists, the Federal Sentencing Reporter's special issue on sex offenders is now available. It's got some excellent policy-related coverage, including a historical overview by editor Michael M. O'Hear, Perpetual Panic, that is available for online download. For the rest of the articles, you need to subscribe or request them from the authors. (Law professor Corey Yung's article, along with many others he has written on related topics, is accessible for download for free from the Social Science Research Network.) The offerings include:

• Perpetual Panic - Michael M. O'Hear
• Sex Offender Treatment: Reconciling Criminal Justice Priorities and Therapeutic Goals - Mary Ann Farkas, Gale Miller
• Child Pornography Sentencing: The Road Here and the Road Ahead - Ian N. Friedman, Kristina W. Supler
• Sexual Predator Laws: A Two-Decade Retrospective - Eric S. Janus, Robert A. Prentky
• Kennedy v. Louisiana: A Chapter of Subtle Changes in the Supreme Court's Book on the Death Penalty - Mary Graw Leary
• Brandishing the Mark of Cain: Defects in the Adam Walsh Act - Joseph L. Lester
• American and Canadian Approaches to Sex Offenders: A Study of the Politics of Dangerousness - Michael Petrunik, Lisa Murphy, J. Paul Fedoroff
• From Wetterling to Walsh: The Growth of Federalization in Sex Offender Policy - Richard G. Wright
• The Sex Offender Registration and Notification Act and the Commerce Clause - Corey Rayburn Yung

New book review in California Lawyer

My review of Charles Patrick Ewing's Trials of a Forensic Psychologist is now available online at the California Lawyer website. Here is how the review begins:

Billy Shrubsall was the top student at his small Niagara Falls, New York, high school. Thus, it came as a surprise when he didn't show up to give the 1988 valedictory address. But he had good reason. Just hours earlier, the 17-year-old had clubbed his domineering mother to death.

To explain Billy's horrific crime, his attorney advanced a theory of "psychological self-defense." The attorney retained forensic psychologist and attorney Charles Patrick Ewing, who had recently advanced the novel doctrine in his 1987 book Battered Women Who Kill (Lexington Books). Ewing's sympathetic testimony paved the way for a plea bargain under which Shrubsall served just 16 months in prison. A model prisoner and parolee, Shrubsall went on to graduate from an Ivy League university and become a Wall Street stock analyst.

But all was not as rosy as it appeared. The ostensibly rehabilitated and upright citizen still had a dark side as a vicious misogynist. He had been assaulting girls since his mid-teens, and a decade after his mother's death he brutally assaulted at least three women in Halifax, Nova Scotia. In one assault eerily reminiscent of his mother's beating death, Shrubsall clubbed a female store clerk with a baseball bat, shattering her skull.

Shrubsall's case is one of more than 600 in which Ewing has testified as an expert. But that case still haunts him, as he states in his latest book, Trials of a Forensic Psychologist: "[A]fter decades of working with the victims of violence and sexual abuse, I know all too well the awful harm Shrubsall did to the women he later victimized ... to this day when I testify as an expert, I am often questioned about my role in this case."

The review continues HERE.

New York Times reports on Czech castration furor

Last month, I reported on the controversy in Europe over Czechoslovakia's castration of convicted sex offenders. Yesterday, the New York Times ran a feature report, excerpted here:

... Whether castration can help rehabilitate violent sex offenders has come under new scrutiny after the Council of Europe’s anti-torture committee last month called surgical castration “invasive, irreversible and mutilating” and demanded that the Czech Republic stop offering the procedure to violent sex offenders. Other critics said that castration threatened to lead society down a dangerous road toward eugenics.

The Czech Republic has allowed at least 94 prisoners over the past decade to be surgically castrated. It is the only country in Europe that uses the procedure for sex offenders. Czech psychiatrists supervising the treatment — a one-hour operation that involves removal of the tissue that produces testosterone — insist that it is the most foolproof way to tame sexual urges in dangerous predators suffering from extreme sexual disorders.

Surgical castration has been a means of social control for centuries. In ancient China, eunuchs were trusted to serve the imperial family inside the palace grounds; in Italy several centuries ago, youthful male choir members were castrated to preserve their high singing voices.

These days it can be used to treat testicular cancer and some advanced cases of prostate cancer.

Now, more countries in Europe are considering requiring or allowing chemical castration for violent sex offenders. There is intense debate over whose rights take precedence: those of sex offenders, who could be subjected to a punishment that many consider cruel, or those of society, which expects protection from sexual predators....

The full article is online HERE. My Feb. 15 coverage of the issue (with links to other related stories) is HERE.

Image: Eunuch, 1749 - Wikimedia Public Domain

Beware "voodoo" brain science

A discussion among colleagues of a brain imaging study purporting to distinguish heterosexual from homosexual men prompted me to write on this topic. Perhaps even more controversial than categorizing sexual orientation, given the current legal climate, was the researchers' claim that their technique holds promise for identifying sexual deviants such as pedophiles and the those with sexual paraphilias.

Brain imaging is all the rage these days. The past decade has witnessed an explosion of interest in the fMRI, with literally thousands of studies, several new journals, and lavish federal funding and attention in the popular media. But some prominent neuroscientists express concerns about both the science and the ethics of fMRI research. Likening it to the old pseudo-science of phrenology, they caution that the public may be lured by vivid and colorful graphics into a misleading impression of scientific precision.

So, what is the fMRI?

Unlike the more established Magnetic Resonance Imaging (MRI) technique, which produces static images of the brain, the functional Magnetic Resonance Imaging (fMRI) provides images of the brain in action, or as it functions. The most widely used fMRI technique in cognitive neuroscience research is the BOLD (Blood Oxygen Level Dependent) method. This method is based on the premise that activation of specific brain regions affects blood flow and blood oxygenation, which can then be measured.

What does this have to do with forensics?

In the forensic arena, probably the most widely publicized research application of the fMRI is in the area of lie detection. fMRI data indicate that certain parts of people's brains -- specifically the anterior cingulate cortex and superior frontal gyrus -- are activated when they lie. But other studies show that the anterior cingulate activates during many other cognitive activities as well, indicating a lack of specificity that makes the technique inappropriate in the real world.

Other forensic applications include the hunt for the ever-elusive psychopath (the image at the left purports to show the brain of a psychopath in action). Some criminal defense attorneys also show fMRI images of their clients to jurors in an attempt to prove brain damage and thereby reduce their clients' legal culpability.

And, as I just said, researchers are starting to apply fMRI techniques to the study of human sexuality, including sexual orientation and sexual deviancy.

What are the problems?

Neuroscientist critics are issuing increasingly vocal alarm calls over both the underlying science and the practical applications of neuroimaging. Their central areas of concern include:

• The measurement techniques lack scientific precision
• Claims of scientific reliability and validity are overstated
• The fMRI overemphasizes brain localization when the brain functions more as a whole
• Applying group fMRI to individuals is improper at this stage of the science
• Marketing and forensic applications are ethically and philosophically problematic

Most recently, in a potentially landmark analysis, a group of psychologists based at the University of California at San Diego examined the analytical techniques used in 54 peer-reviewed fMRI brain-scanning studies published in prominent scientific journals. They concluded that the methods used in half the studies were so "seriously defective" that the findings "should not be believed."

Lead researcher Harold Pashler went so far as to call the statistical methods "voodoo" that should be especially shunned in the forensic arena:

"In the law, individual differences are the main focus," the Wall Street Journal quoted Pashler as saying. "And it often could come down to these voodoo statistics."

The article, "Puzzlingly High Correlations in fMRI Studies of Emotion, Personality,
and Social Cognition" (originally titled "Voodoo Correlations in Social Neuroscience") will be published in a forthcoming issue of the Association for Psychological Science's journal Perspectives in Psychological Science. Reports the abstract:

"Functional Magnetic Resonance Imaging studies of emotion, personality, and social cognition have drawn much attention in recent years, with high-profile studies frequently reporting extremely high (e.g., >.8) correlations between behavioral and self-report measures of personality or emotion and measures of brain activation. We show that these correlations often exceed what is statistically possible assuming the (evidently rather limited) reliability of both fMRI and personality/emotion measures. The implausibly high correlations are all the more puzzling because method sections rarely contain sufficient detail to ascertain how these correlations were obtained. We surveyed authors of 54 articles that reported findings of this kind to determine a few details on how these correlations were computed. More than half acknowledged using a strategy that computes separate correlations for individual voxels, and reports means of just the subset of voxels exceeding chosen thresholds. We show how this non-independent analysis grossly inflates correlations, while yielding reassuring-looking scattergrams. This analysis technique was used to obtain the vast majority of the implausibly high correlations in our survey sample. In addition, we argue that other analysis problems likely created entirely spurious correlations in some cases. We outline how the data from these studies could be reanalyzed with unbiased methods to provide the field with accurate estimates of the correlations in question. We urge authors to perform such reanalyses and to correct the scientific record."

Be sure to read this article (available HERE, as well as some of the related resources, below) before you get up on the witness stand and wax eloquent about the wonders of brain-scanning technology. Otherwise, on cross-examination you might be in for a nasty surprise.

Related resources:

• Law and Ethics of Brain Scanning, resources from a 2007 conference at Sandra Day O’Connor College of Law
• Law and Neuroscience Project, John D. and Catherine T. MacArthur Foundation
• "The Brain, Your Honor, Will Take the Witness Stand: Researchers Probe How the Mind Determines Crime and Punishment, but the Science Isn't Beyond a Reasonable Doubt," Wall Street Journal, Jan. 15, 2009
• "fMRI Beyond the Clinic: Will It Ever Be Ready for Prime Time?" by Richard Robinson, Public Library of Science Biology
• "Functional Magnetic Resonance Imaging (fMRI): Much Ado About What?" by Camilla Culler
• "Fact or Phrenology? The growing controversy over fMRI scans is forcing us to confront whether brain equals mind," by David Dobbs, Scientific American, March 2005
• "Can fMRI Really Tell If You're Lying?" by Gary Stix, Scientific American, August 2008
• "Neuroscience and the Law: If scientists can prove that the brain determines the mind, lawyers could convince juries that defendants may not be responsible for their crimes," By Michael S. Gazzaniga and Megan S. Steven, Scientific American, April 2005
• "The New Phrenology: The Limits of Localizing Cognitive Processes in the Brain,” by William R. Uttal

PS: My followup post on an attempt to get the "No Lie MRI" introduced in a Southern California parental termination case is HERE.

3 decades in the hole, but were they guilty?

NPR's Legal Affairs:
Case Of Angola Inmates Heads To Court

The fate of two men who spent longer in solitary confinement than any other U.S. inmate will be argued in a federal court in Louisiana. The men were convicted 36 years ago of killing a prison guard in a racially charged investigation. After almost four decades in solitary, there are now questions about their guilt.

Audio story available HERE (after 7:00 pm WCT on March 3, 2009)

Today's Times-Picayune coverage is HERE

Last year's Mother Jones interview with the former Black Panthers, Albert Woodfox and Herman Wallace, is HERE

Photo: Replica of prisoner Herman Wallace's solitary confinement cell at Angola (nicknamed “the last slave plantation") by artist Jackie Sumell. Photo credit: hragvartanian (Creative Commons license)