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Red Troll News From The Mind Of

Martin G. Smith

[® 1936 J.A.S.]

Volume 1: Issue 4 2011-06-21

Introduction – This is the first issue of the Red Troll News , an occasional outing into the world of writing, a place where I can put my assemb le thoughts for all to read. Many would suggest that I should ‘Blog’ and you can find some of my work at A Bridge Over The Abyss 1 and MATH Not METH 2. You will note that neither of these sites have be en added to for some time, the reason being that I have been too busy working at what I do rather than talking/writing about what I do. The name, Red Seven is a radio term which stands for One Hundred and Seven. It also relates to a Biblical Reference: Psalm 107 V: 23–32 A. You will also find many other references including one to the guiding princ ipals of what I do. What follows are words, my own and others that ha ve guided and inspired me along the ‘Mile’ that I travel and will continue to guide me until the debt of death is paid.

1 http://redseven.wordpress.com/ 2 http://redsevenone.wordpress.com/

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A Pressing Issue

Introduction – I am the first, and have embraced te chnology particularly in the medical field for the diagnosis and thus rapid solu tions to events within the body. Within this spectrum lies MRI B [Magnetic Resonance Imaging ]3. I have even used the images in a successful incurs ion into the Crystal Meth community.

This image shows the pattern of This image shows the pattern of This image shows the pattern of This image shows the pattern of brain tissue loss in methamphetamine usersbrain tissue loss in methamphetamine usersbrain tissue loss in methamphetamine usersbrain tissue loss in methamphetamine users, relative to healthy adults mapped , relative to healthy adults mapped , relative to healthy adults mapped , relative to healthy adults mapped using MRI scans. Brain regions involved in drug craving, emotion and reward, and hippocampal brain regions involved in using MRI scans. Brain regions involved in drug craving, emotion and reward, and hippocampal brain regions involved in using MRI scans. Brain regions involved in drug craving, emotion and reward, and hippocampal brain regions involved in using MRI scans. Brain regions involved in drug craving, emotion and reward, and hippocampal brain regions involved in learning and memory, lose up to 10% of their tissue. Red colearning and memory, lose up to 10% of their tissue. Red colearning and memory, lose up to 10% of their tissue. Red colearning and memory, lose up to 10% of their tissue. Red colours denote brain regions with the greatest tissue loss, blue lours denote brain regions with the greatest tissue loss, blue lours denote brain regions with the greatest tissue loss, blue lours denote brain regions with the greatest tissue loss, blue colours regions that remain relatively intact. Hippocampal volume reductions are linked with poorer memory performance I colours regions that remain relatively intact. Hippocampal volume reductions are linked with poorer memory performance I colours regions that remain relatively intact. Hippocampal volume reductions are linked with poorer memory performance I colours regions that remain relatively intact. Hippocampal volume reductions are linked with poorer memory performance I the methamphetamine users. At the same timethe methamphetamine users. At the same timethe methamphetamine users. At the same timethe methamphetamine users. At the same time, a 7% volume increase occurs, a 7% volume increase occurs, a 7% volume increase occurs, a 7% volume increase occurs in the brain’s white matter, suggesting an in the brain’s white matter, suggesting an in the brain’s white matter, suggesting an in the brain’s white matter, suggesting an inflammatory response to chronic drug use.inflammatory response to chronic drug use.inflammatory response to chronic drug use.inflammatory response to chronic drug use.4444,,,,5555

The previous image is courtesy of Dr. Paul Thompso n of UCLA 6,C

3 http://www.cis.rit.edu/htbooks/mri/index.html 4 http://www.loni.ucla.edu/~thompson/MEDIA/METH/PR.html 5 http://www.loni.ucla.edu/~thompson/MEDIA/METH/Slide1.jpg 6 http://www.loni.ucla.edu/~thompson/thompson.html

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fMRI and The New Panopticon – or –

[Reality Meets The Wizard of OZ ]

Herein lies a caution, perhaps not unlike the one y ou may have received from the patrol officer at the end of his/her shift on that back highway in the valley, or perhaps the referee who had momentarily averted an eye at just the crucial point changing the results of the game.

Here is a cautionary tale, too, the tale of percept ions presented as evident fact with assessments based of the DSM [Diagnostic and Statistical Manual of Mental Disorde rs ]7 or the much touted sixteen questions of the PCL-R [Psychopathy CheckList – Revised ]8. This is too, a warning, a warning of ‘AVALANCHE AH EAD’ along the winding trail of progressive jurisprudence. It brings to the fore the apparent embracing, promotion of a technology, of great use in its own right as a clin ical diagnostic tool, tweaked, for I suggest there no better nor less appropriate descri ption, to show efficacy in the field of truth determination [Polygraph] yet with the advant age of being highly and authoritatively visual and thus highly saleable in a field desperat e to embrace any new technology which will further justify the industry of justice. More dangerously, however this technology is being suggested as having efficacy in the determina tion of risk, and/or guilt in a juduicila venue. I give to you an annotated bibliography and a mark edly profound ‘A Call for a Moratorium on the Use of Information Derived from N euroimaging’ 9D [Jennifer Bard 10] on its use, leaving, with study, the overall decision to you regarding its efficacy. First, however, I relate a story, intended origina lly as an exercise in ridicule with the intent of bringing the glaring errors of premis e in the use of psychological testing as evident fact. 70Kms East of Vancouver, British Colu mbia, there are two CSC 11 facilities, Matsqui Institution 12 and RTC13. They are accessed of the local road along the Eas tern edge of the property with a ‘T’ intersection E, left to the main institution and straight through to RTC. The ‘T’ intersection is a Three-way stop and I bas e my ridicule on an observed pattern of behaviour related to traffic at that int ersection. At the beginning of the study I noted that a large number of institutional staff ig nored the Rule of Law implied by the Stop signs. I then compared this to the behaviour of non -institutional drivers and found there were very few drivers who ignored the Stop signs.

I then proposed that such disregard for the Rule of Law indicated a pattern of repetitive behaviour supporting a diagnosis of OCD 14 [Obsessive Compulsive Disorder ], or at a minimum, ‘Personality Disorder Not Otherwise S pecified 15’. The report was intended to shine a bright light of irony in the form of ridicu le on the excessive reliance on psychological testing which has a declared accuracy < 50% in the determination of risk. There was a time within the prison systems of Cana da, still existent in other places, when flogging was the primary [Reference Ne llie McClung] means of compliance enforcement and rehabilitation. It has been replace d by Psychological Assessment.

7 http://www.psych.org/MainMenu/Research/DSMIV/DSMIVTR.aspx 8 http://www.hare.org/scales/pclr.html 9 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1813425 10 http://www.law.ttu.edu/faculty/bios/bard/ 11 Correctional Service of Canada – http://www.csc-scc.gc.ca/text/index-eng.shtml 12 http://www.csc-scc.gc.ca/text/facilit/institutprofiles/matsqui-eng.shtml 13 http://www.csc-scc.gc.ca/text/facilit/institutprofiles/pacific-eng.shtml 14 http://www.nimh.nih.gov/health/topics/obsessive-compulsive-disorder-ocd/index.shtml 15 http://ajp.psychiatryonline.org/cgi/content/full/162/10/1926

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The report received wide area distribution with an unexpected but telling consequence. There was a marked decrease in the num ber of people ignoring the rule of law indicated by the Stop signs. While some argued that because the roads were essentially on ‘Private Property’, the standard rul e of law did not apply. However the majority change their behaviour after they learned that someone had noted it. This, in turn, tested the credibility of the premise that someone with a diagnosis of a Personality ‘Disorder’ could not change and was applied primari ly to the people being incarcerated. I further suggested that 50% of the requirement for b eing assessed as having a ‘Disorder’ is being born and the findings, however rhetorical, sh owed that the traits followed in a large number of people, incarcerated or not. It may be ar gued that there are very few degrees of separation between the ‘Keepers’ and the ‘Kept’, ho wever this further reinforced the premise of Trait vs. Disorder. The data set used in the ‘Study’ was based on an o bservation cycle of Six hours in One day and extrapolated with the input of anecdota l pedestrian observation. I further noted that this collection period was longer that t he average assessment interview grated to an offender which resulted in a ‘Diagnosis’. I thus compare this to the premise that one can ex trapolate the output of a primarily diagnostic tool an present it as a determ inant of truthfulness, the assessment of risk and/or, most dangerously, finding of guilt. There is a certain implied authority and credibilit y in the appearance of the ‘Tunnel, the whirring of the cooling system and the signature cl ick of the scanner coils firing, a juxtaposed panopticon F. But, in fact, it is more akin to the scene of Dor othy’s first encounter with the Wizard of Oz 16 and Toto’s revelation that it was not much more th an a sideshow ruse, for the authority accrued to the tec hnology is only as good as the person interpreting the output, only as good as the Wizard himself. With such diagnoses becoming dangerously possible, only being as good as the people reading the output, assuming their brains, a s well, to be intact, authoring the assessment, there is the potential for error and ab use in judicial hearings with the presentation of quasi-expert testimony presented as real. The introduction of fMRI assessments as evident fact must be resisted. The p otential for abuse, omissions in accession to agenda is far too high. Only when a testing baseline is established such a s those of the MMPI 17 [Minnesota Multiphasic Personality Inventory ] or the MCMI 18 [Millon Clinical Multiaxial Inventory ] will the use of fMRI become effective. This, of co urse will require a baseline of better than 32 Million people. I present to you a Bibliography while primarily fr om SSRN 19 [Social Science Research Network ], also from several other reviewed sources. I sugge st a watchful eye be trained of the ‘Three Rules of Assessment, would be prudent in reading the supportive evidence I present

16 Oscar Zoroaster Phadrig Isaac Norman Henkel Emmannuel Ambroise Diggs 17 http://www1.umn.edu/mmpi/index.php 18 http://cps.nova.edu/~cpphelp/MCMI-2.html 19 http://www.ssrn.com/

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–Bibliography–

Abstracts Only –

1. Cross-Examining the Brain: A Legal Analysis of Neur al Imaging for Credibility Impeachment – ABSTRACT – The last decade has seen remarkable process in understanding ongoing psychological processes at the neurobiological level, progress that has been driven technologically by the spread of functional neuroimaging devices, especially magnetic resonance imaging, that have become the research tools of a theoretically sophisticated cognitive neuroscience. As this research turns to specification of the mental processes involved in interpersonal deception, the potential evidentiary use of material produced by devices for detecting deception, long stymied by the conceptual and legal limitations of the polygraph, must be re-examined. Although studies in this area are preliminary, and I conclude they have not yet satisfied the foundational requirements for the admissibility of scientific evidence, the potential for use - particularly as a devastating impeachment threat to encourage factual veracity - is a real one that the legal profession should seek to foster through structuring the correct incentives and rules for admissibility. In particular, neuroscience has articulated basic memory processes to a sufficient degree that contemporaneously neuroimaged witnesses would be unable to feign ignorance of a familiar item (or to claim knowledge of something unfamiliar). The brain implementation of actual lies and deceit more generally, is of greater complexity and variability. Nevertheless, the research project to elucidate them is conceptually sound, and the law cannot afford to stand apart from what

may ultimately constitute profound progress in a fundamental problem of adjudication. – http://papers.ssrn.com/abstract=993814

2. Flickering Admissibility: Neuroimaging Evidence in the U.S. Courts – ABSTRACT – This article explores the admissibility of neuroimaging evidence in U.S. courts, recognizing various trends in decisions about such evidence. While courts have routinely admitted some neuroimages, such as CT scans and MRI, as proof of trauma and disease, they have been more circumspect about admitting the PET and SPECT scans and fMRI evidence. With the latter technologies, courts have often expressed reservations about what can be inferred from the images. Moreover, courts seem unwilling to find neuroimaging sufficient to prove either insanity or incompetency, but are relatively lenient about admitting neuroimages in death penalty hearings. Some claim that fMRI and "brain fingerprinting'' are able to detect deception. Other scholars argue that brain fingerprinting is a dubious concept and that fMRI is not yet sufficiently reliable. Moreover, there are substantial concerns about privacy and the perils of mind reading implicit in such technology. Yet, there is a movement to try to make these new technologies "courtroom ready'' in the near future, raising a host of legal, policy, and ethical questions to be answered. – http://papers.ssrn.com/abstract=1114125

3. It's All in Your Head: Chronic Pain, Neuroimaging, and Disability Adjudication – ABSTRACT – Chronic pain

is a major cause of disability, depression, and suicide - and commonly causes sufferers to seek support and redress from the legal system. The most important contexts in which chronic pain figures in the legal system are those of disability law - primarily disability adjudication under the Social Security Disability Insurance program - and in tort, for pain and suffering damages. Indeed, chronic pain claims comprise the single largest category of disability claims and ongoing disability payments. Yet, for a phenomenon that is the predicate of such a large and costly category of legal claims, it has a troubling lack of externally-verifiable reality. Pain is invisible and, frequently, unspeakable. The invisibility, unspeakability, and subjectivity of pain have caused it to be a subject of as much legal controversy as it is of legal significance. With pain, there is always doubt: Is the claimant faking? Malingering? Mentally ill, perhaps, but not “really” in pain? But what if pain could be known? Several new neuroimaging technologies are promising to render pain visible, measurable, and, to some degree, verifiable. If these technologies allowed us literally to know the pain of others, what might the law do differently, or do better? This short essay will suggest that current work in pain imaging could significantly improve disability regulations related to chronic pain by permitting chronic pain itself to be recognized as a distinct set of neurological conditions. Moreover, importing recent developments in pain biology into the law could help move the law’s model of chronic pain beyond its lingering Freudian notions of chronic pain as “conversion

hysteria” and supplant it with a model that is more accurate and useful to both claimants and decision-makers. – http://papers.ssrn.com/abstract=1405379

4. Risk-Attitude Selection Bias in Subject Pools for E xperiments Involving Neuroimaging and Blood

Samples – ABSTRACT – Techniques such as neuroimaging and molecular genetics are increasingly used to investigate economic theory, decision making behavior and personality traits related to economic behavior [e.g., risk attitudes, reward dependence]. The generalizability of this research is ultimately limited, however, if the subjects participating in such studies are not representative of the general population with respect to the behavior or traits of interest to the researcher. In this study, university student recruits answer surveys that assess risk attitudes prior to being told that the study involves a one-hour functional Magnetic Resonance Imaging (fMRI) session and a blood sample obtained via phlebotomy. We find recruits with more conservative risk attitudes in two of four measured dimensions are less likely to agree to participate in the study due to these biomedical requirements, suggesting that recruitment among student volunteer populations for fMRI studies and for genetics studies requiring blood as genetic source material may induce a sample selection bias in the domain of risk attitudes. We find that limiting recruitment to individuals who have previously undergone certain types of medical interventions (MRI, computed tomography or surgery) eliminates the sample selection bias in the case of fMRI research and attenuates the bias in the case of genetics research. Furthermore, relying upon buccal cells rather than blood for genetic source material may attenuate sample selection bias. Buccal cell samples can be collected via less invasive oral techniques and have been shown to provide genotyping results

that are comparable to blood samples. – http://papers.ssrn.com/abstract=1353104

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5. Social Cognitive Neuroscience: A Review of Core Pro cesses – ABSTRACT – Social cognitive neuroscience examines social phenomena and processes using cognitive neuroscience research tools such as neuroimaging and neuropsychology. This review examines four broad areas of research within social cognitive neuroscience: (a) understanding others, (b) understanding oneself, (c) controlling oneself, and (d) the processes that occur at the interface of self and others. In addition, this review highlights two core-processing distinctions that can be neurocognitively identified across all of these domains. The distinction between automatic versus controlled processes has long been important to social psychological theory and can be dissociated in the neural regions contributing to social cognition. Alternatively, the differentiation between internally-focused processes that focus on one's own or another's mental interior and externally-focused processes that focus on one's own or another's visible features and actions is a new distinction. This latter distinction emerges from social cognitive neuroscience investigations rather than from existing psychological theories demonstrating that social cognitive neuroscience can both draw

on and contribute to social psychological theory. – http://papers.ssrn.com/abstract=1077366

6. Weaving Functional Brain Imaging into the Tapestry of Evidence: A Case for Functional Neuroimaging in Federal Criminal Courts – ABSTRACT – Recent advances in brain imaging technologies allow researchers to "peer inside" a defendant’s brain. Although functional neuroimaging evidence is frequently used in civil litigation, federal courts have been hesitant to admit it into evidence in criminal trials. Scholars and commentators alike continue to debate the merits, detriments, and general admissibility of functional neuroimaging evidence in the criminal context. Meanwhile, federal judges repeatedly admit various forms of forensic science into evidence without seriously considering whether they pass the relevant admissibility standards. This Note argues that this has created a double standard for evidence admissibility. Functional neuroimaging evidence may, in fact, be more scientifically reliable than much of the forensic science evidence currently admitted at trial. Accordingly, this Note proposes that judges should consider the disparity in evidentiary standards when considering the admissibility of functional neuroimaging evidence and carefully and fairly examine such evidence when

offered in federal criminal trials. – http://ssrn.com/abstract=1821522

7. What Neuroscience May Be Able to Tell Us about Crim inal Behavior and Rehabilitation – ABSTRACTS – Emerging questions at the interface of law and neuroscience challenge several presumptions at the heart of the legal system. For example, under what circumstances is it a legitimate defense to claim that a brain tumor or idiosyncratic neural wiring was responsible for a behavior? Will neuroscience inform sentencing decisions by offering a better prediction of recidivism? Can novel neuroscience technologies be leveraged for new methods of rehabilitation? I will address these questions with a look toward what neuroscience may and many not be able to tell us about criminal behavior within the next decade. I will additionally cover preliminary experimental data from our novel strategy for real-time functional neuroimaging-based rehabilitation, which I will discuss on both scientific and ethical grounds. Finally, I will touch on Baylor College of Medicine’s Initiative on Neuroscience and Law20, which brings together a unique collaboration of neurobiologists, legal scholars,

and policy makers, with the goal of building modern, evidence-based policy – http://ssrn.com/abstract=1405305

8. The Law's Use of Brain Evidence – ABSTRACT – This review examines how advances in neuroscience are affecting civil law, criminal law, and law enforcement. Brain imaging techniques have already been used to detect brain injury, assess pain, and determine mental state and capacity for rational thought. There is also much excitement about using neuroimaging to detect lies and deception in legal and national security contexts. Despite claims of neuroimaging's revolutionary nature, numerous questions should be answered about their validity and reliability before they become widely adopted. Neuroscientists still do not fully understand the link between brain activity and behavior or memory formation. Important legal and ethical questions remain unresolved, particularly around the potential effect on juries and judges of colorful, but scientifically unproven, brain images. Finally, the very impetus behind the use of neuroscience in the legal system -

to avoid the subjectivity and uncertainty of more traditional methods for assessing thought and behavior - may be misguided. – http://ssrn.com/abstract=1708417

20 http://www.NeuLaw.org

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ABSTRACTS – Full Text Articles

1. Brain Scans as Evidence: Truths, Proofs, Lies, and Lessons – ABSTRACT – This contribution to the Brain Sciences in the Courtroom Symposium identifies and discusses issues important to admissibility determinations when courts confront brain-scan evidence. Through the vehicle of the landmark 2010 federal criminal trial U.S. v. Semrau [which considered, for the first time, the admissibility of brain scans for lie detection purposes] this article highlights critical evidentiary issues involving: 1] experimental design; 2] ecological and external validity; 3] subject compliance with researcher instructions; 4] false positives; and 5] drawing inferences about

individuals from group data. The article’s lessons are broadly applicable to the new wave of neurolaw cases now being seen in U.S. courts. – http://ssrn.com/abstract=1736288

2. Neuroscience Evidence, Legal Culture, and Criminal Procedure – ABSTRACT – Proposed lie-detection technology based on neuroscience poses significant challenges for the law. The law must respond to the science with an adequate understanding of such evidence, its significance, and its limitations. This paper makes three contributions toward those ends. First, it provides an account of the preliminary neuroscience research underlying this proposed evidence. Second, it discusses the nature and significance of such evidence, how such evidence would fit with legal practices and concepts, and its potential admissibility. Finally, it analyzes the constitutional protections

that may limit the compelled production of such evidence – http://ssrn.com/abstract=910958

3. Predators and Punishment – ABSTRACT – Psychopathy is characterized as an emotional disorder tightly woven with persistent antisocial behavior. Prevailing legal doctrine and social norms hold psychopaths responsible for their conduct and punishment legitimately flows to psychopaths who violate the law. Recent scholarship, however, has challenged that view by claiming the emotional and cognitive deficits inherent in psychopathy should preclude culpability for some psychopaths. This view necessarily imposes a substantial modification on how the law conceptualizes culpability that is ultimately unwise. Legal responsibility entails the capacity for rationality and psychopaths comport with the established meanings of rationality as understood by the law and the communal intuitions which guide it. Extant scholarship indicates psychopaths are rationale agents and can be fairly subjected to punishment for conduct which violates the law.

The law should reject efforts to include psychopaths within its excuse jurisprudence - http://ssrn.com/abstract=1856293

4. Mindfulness, Emotions, and Ethics: The Right Stuff? – ABSTRACT – What role do emotions play in ethical decision-making? Philosophers have long debated the question, disagreeing about both the nature of "the good" and how best to achieve it. Rationalists ground one's capacity for virtue in logic and deliberate cognition, while moral intuitionists look to one's capacity for feeling deeply. Immanuel Kant, for example, maintained that right conduct flowed from a sense of duty that functioned independently of emotion. Conversely, David Hume argued that all right action involved sentiment and that reason, stripped of passion, could not impel ethical choice. Philosophers are not alone in their fascination with the question. Psychologists also have delved into the relationship between emotion and moral development, creating varying models of maturation that either embrace or reject emotion as a critical component of moral discernment. Today, debates in the "soft sciences" of the mind spill into the "hard sciences" of the body. Interest in the biological bases of emotion invigorates neuroscience, and developments in functional magnetic resonance imagery (fMRI) promise methods for mapping the synaptic pathways that induce affective states. Although we can now detect activity in portions of the brain associated with emotional experience, it remains unclear whether those electrical surges push us in "right" or "wrong" directions. In the mediation world, scholars and practitioners frequently treat emotion as the unruly step-child of the problem-solving mind. Professor Leonard Riskin characterizes emotion as a potential negotiation saboteur and offers "mindful practice" as a useful corrective. He argues that mindful mediation can help negotiators gain better control over their wandering minds and negative emotions, and achieve more satisfying, interest-based solutions. This essay celebrates Riskin's call to arms while suggesting some limits to what mindfulness can achieve in the ethical realm. It examines in more detail the relationship Riskin posits between mindful practice and ethical decision-making. It discusses recent developments in neuroethics that imply a prominent role for emotions in establishing ethical restraint. It also surveys a growing body of evidence that suggests the directive power of our emotions remains largely hidden from and impervious to the control of our "reasoning" selves. Lastly, it examines what Riskin has, in an earlier work, described as the ethical "hard case" in light of recent explorations into the emotional wellsprings of deontological versus consequentialist thinking. Although the mediation community need not wade deeply into the debates currently roiling social psychologists, it is useful to reflect on the genesis of our ethical commitments and whether they continue to serve the field’s long-term

goals and interests. – http://ssrn.com/abstract=1602107

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5. Neuroimaging and the 'Complexity' of Capital Punish ment – ABSTRACT – The growing use of brain imaging technology to explore the causes of morally, socially, and legally relevant behavior is the subject of much discussion and controversy in both scholarly and popular circles. From the efforts of cognitive neuroscientists in the courtroom and the public square, the contours of a project to transform capital sentencing both in principle and in practice have emerged. In the short term, these scientists seek to play a role in the process of capital sentencing by serving as mitigation experts for defendants, invoking neuroimaging research on the roots of criminal violence to support their arguments. Over the long term, these same experts (and their like-minded colleagues) hope to appeal to the recent findings of their discipline to embarrass, discredit, and ultimately overthrow retributive justice as a principle of punishment. Taken as a whole, these short- and long-term efforts are ultimately meant to usher in a more compassionate and humane regime for capital defendants. This Article seeks to articulate, analyze, and provide a critique of this project according to the metric of its own humanitarian aspirations. It proceeds by exploring the implications of the project in light of the mechanics of capital sentencing and the heterogeneous array of competing doctrinal rationales in which they are rooted. The Article concludes that the project as currently conceived is internally inconsistent and would, if implemented, result in ironic and tragic consequences, producing a death penalty regime that is even more draconian and less

humane than the deeply flawed framework currently in place. – http://ssrn.com/abstract=965837

6. The Legality of the Use of Psychiatric Neuroimaging in Intelligence Interrogation – ABSTRACT - This Note examines the legality of the use of a form of psychiatric neuroimaging called functional Magnetic Resonance Imaging (fMRI) in the interrogation of detainees in U.S. custody. Part I provides background on current U.S. interrogation doctrine and the potential role of fMRI in interrogation. Part II examines fMRI in light of International Humanitarian Law, arguing that while its use to detect deception in the voluntary statements of detainees is permissible, its involuntary use in interrogation would violate the anti-coercion provisions of the Geneva Conventions. Part III examines fMRI in light of International Human Rights Law (IHRL) and the U.S. Constitution, arguing that although fMRI would not constitute torture its use may shock the conscience and, in many cases, would be illegal under IHRL and the Constitution. If the government can articulate a sufficient interest in obtaining information from the detainee, however, its use would not violate current law. The Note concludes by arguing that although fMRI does not represent a complete technological solution to the legal

problem of torture, it nevertheless is permissible in certain limited instances. – http://ssrn.com/abstract=656841

7. Brain Imaging for Legal Thinkers: A Guide for the P erplexed – ABSTRACT – It has become increasingly common for brain images to be proffered as evidence in criminal and civil litigation. This Article - the collaborative product of scholars in law and neuroscience - provides three things. First, it provides the first introduction, specifically for legal thinkers, to brain imaging. It describes in accessible ways the new techniques and methods that the legal system increasingly encounters. Second, it provides a tutorial on how to read and understand a brain-imaging study. It does this by providing an annotated walk-through of the recently-published work [by three of the authors - Buckholtz, Jones, and Marois] that discovered the brain activity underlying a person's decisions: a] whether to punish someone; and b] how much to punish. The annotation uses the 'Comment' feature of the Word software to supply contextual and step-by-step commentary on what unfamiliar terms mean, how and why brain imaging experiments are designed as they are, and how to interpret the results. Third, the Article offers some general guidelines about how to avoid misunderstanding brain images in legal contexts and how to identify when others are misusing brain images.

The Article is a product of the 'Law and Neuroscience Project'21, supported by the MacArthur Foundation. – http://ssrn.com/abstract=1563612

8. Functional Neuroimaging Information: A Case for Neu ro Exceptionalism? – ABSTRACT – Functional magnetic resonance imaging [fMRI)] has built on a number of technologies, including electroencephalography, magnetoencephalography, positron emission tomography, and single-photon emission computed tomography, to become one of the decade's most powerful tools for mapping sensory, motor, and cognitive function. Scientists also are using fMRI to study the neural correlates of a range of conditions, characteristics, and social behaviors, including schizophrenia, addiction, racial evaluation, deception, cooperation, and sexual preferences. Now poised to move outside the research context, functional neuroimaging raises a number of confidentiality, privacy, and identity issues. In this Article, I examine whether special, or heightened, confidentiality, privacy, and informed consent provisions are needed to respond to developments in functional neuroimaging. En route to arguing that advances in fMRI renew the call for broad-based privacy protections in the employment and insurance contexts and require an expanded notion of informed consent, I address the proper roles and responsibilities of

scientists, physicians, lawyers, and ethicists in the public and neuroethics arenas – http://ssrn.com/abstract=922391

21 http://lawneuro.org/

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9. Imaging Body Structure and Mapping Brain Function: A Historical Approach – ABSTRACT - Now in its second decade, functional magnetic resonance imaging (fMRI) localizes changes in blood oxygenation that occur in the brain when an individual performs a mental task. Physicians and scientists use fMRI not only to map sensory, motor, and cognitive functions, but also to study the neural correlates of a range of sensitive and potentially stigmatizing conditions, behaviors, and characteristics. Poised to move outside the traditional clinical and research contexts, fMRI raises a number of ethical, legal, and social issues that are being explored within a burgeoning neuroethics literature. In this Article, I place these issues in their proper historical context. The ethical, legal, and social issues raised by advances in functional neuroimaging are challenging and somewhat distinctive, but they are not entirely new. Earlier methods of body imaging and brain mapping, including phrenology, x-ray, positron emission tomography, and single-photon emission computed tomography, raised similar issues, and perhaps we can use our experiences with these sciences and technologies to help guide current

functional neuroimaging policy. – http://ssrn.com/abstract=1703579

10. Incidental Findings in Neuroscience Research: A Fun damental Challenge to the Structure of Bioethics and Health Law – ABSTRACT – Incidental findings are an unavoidable by-product of conducting research in human beings. Depending on the research method being used and the population being studied, researchers may encounter incidental findings in the majority of the participants in their research. Even in studies in which incidental findings are less common, they may include urgent and even life-threatening findings. The empirical research documenting the incidence and potential gravity of incidental findings forces researchers to face difficult questions. The most fundamental of these is whether researchers have any duty to identify, evaluate, and disclose these findings to the research participant. What makes these questions so difficult is that at root they ask whether researchers have some kind of duty to trigger or provide clinical care. Merely asking this question is a profound challenge to the structure of bioethics and health law. Both fields approach the world of research and the world of medical care very differently. The problem of incidental findings challenges this traditional dichotomy. The problem forces attention to the question of whether the two-world vision that has been fundamental to the architecture of health law and bioethics is wrong. This chapter traces the emergence of the incidental findings problem and analyzes the fundamental challenge posed to the structure of health law and bioethics. It then suggests how to reconstitute the conception of researcher duties that both domains embrace. The chapter rejects the old dichotomy between research and treatment that would absolve the researcher of any duties to evaluate and offer to disclose findings of potential clinical significance. While arguing for a new vision of researcher duties that would impose some clinical responsibilities, the chapter rejects erasure of the distinction between research and care. Clinical care must focus on the well-being of the individual patient; the fundamentally different enterprise of research strives to create generalizable knowledge. Yet the traditional dichotomy went too far absolved researchers of duties of clinical care and information sharing. The author suggests how bioethics and health law can now reconstitute the

traditional vision of researcher duties to bring the researcher back into relationship with the research participant. - http://ssrn.com/abstract=1735021

11. Interrogational Neuroimaging in Counterterrorism: A No-Brainer or a Human Rights Hazard? – ABSTRACT – Recent fMRI studies have generated a great deal of excitement about the potential for neuroimaging technologies to support the U.S. counterterrorism mission post-9/11 and, in particular, to assist with the interrogation of suspected terrorists. Advocates of the technology claim that fMRI could be used (a) to detect deception and/or (b) to monitor recognition of an audio or visual stimulus - recognition that the examination subject might otherwise wish to suppress. At least two corporations in the U.S. are aggressively marketing the technology for lie detection purposes. Although the use of fMRI in the war on terror has been mainly conjecture until now, this paper cites statements by an experienced U.S. interrogator suggesting the technology may already have been deployed in the field. Some advocates claim fMRI has the potential to eliminate torture and other violations of the fundamental human rights. (If we can read the minds of terrorists, so the argument goes, we won't need to torture them.) This essay responds to that claim by sounding a note of caution. Drawing on recent work from scholars in science, technology and society (STS), social neuroscience and bioethics, this paper argues that fMRI may lead to the abuse of detainees - including those who are innocent - as a result of overconfidence in the technology and the profound social construction of the data it produces. The risk of abuse is particularly acute in highly-charged counterterrorism scenarios because fMRI will be

deployed extrajudicially and behavioral drift is likely. – http://ssrn.com/abstract=1005479

12. Madness, Badness, and Neuroimaging-Based Responsibi lity Assessments – ABSTRACT – On the capacitarian account responsibility tracks capacity - i.e. reductions in a person’s agency-relevant mental capacities entail reductions in the degree of their responsibility. This entails that if the mental capacity to (e.g.) empathise was necessary for moral agency, then a person that commits murder but who lacks this capacity should be at least partially excused. The capacitarian account also allows that if neuroimaging scans could reveal people’s mental capacities then such scans could play some role in assessing responsibility. However, viewed from another angle, a person who lacks the capacity to empathise could also be described as cold blooded killer - i.e. as a bad rather than a mad person - and under this description it seems more appropriate to condemn rather than to excuse them. Although this might seem to challenge the capacitarian account, and with it the idea that neuroscience might have some role to play in helping us to assess people’s responsibility, I will argue that this challenge is illusory. On my account, this challenge rests on a conflation of two different kinds of culpability, and on a failure

to notice that each of these kinds of culpability plays a role at a different stage in the criminal trial – http://ssrn.com/abstract=1588038

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13. Neuroimaging and Responsibility Assessments – ABSTR ACTS - Could neuroimaging evidence help us to assess the degree of a person’s responsibility for a crime which we know that they committed? This essay defends an affirmative answer to this question. A range of standard objections to this high-tech approach to assessing people’s responsibility is considered and then set aside, but I also bring to light and then reject a novel objection - an objection which is only encountered when functional (rather than structural)

neuroimaging is used to assess people’s responsibility. – http://ssrn.com/abstract=1519431

14. Neuroimaging Research into Disorders of Consciousne ss: Moral Imperative or Ethical and Legal Failure? – ABSTRACT - In this article I explore the ethical and legal implications of enrolling individuals with disorders of consciousness (DOC) in neuroimaging research studies. Many scientists have strongly emphasized the need for additional neuroimaging research into DOC, characterizing the conduct of such studies as morally imperative. On the other hand, institutional review boards (IRBs) charged with approving research protocols, scientific journals deciding whether to publish study results, and federal agencies that disburse grant money have limited the conduct, publication, and funding of consciousness investigations based on ethical and legal concerns. Following a detailed examination of the risks and benefits of neuroimaging research involving individuals with DOC, I urge IRBs, scientific journals, and funding agencies to no longer stall the conduct, publication, and funding of neuroimaging research into DOC if certain criteria

designed to protect the health and safety of individuals with DOC are satisfied. – http://ssrn.com/abstract=1415364

15. Pain Detection and the Privacy of Subjective Experi ence – ABSTRACT – Pain is a fundamentally subjective experience. We have uniquely direct access to our own pain but can only make rough inferences about the pain of others. Nevertheless, such inferences are made all the time by doctors, insurers, judges, juries, and administrative agencies. Advances in brain imaging may someday improve our pain assessments by bolstering the claims of those genuinely experiencing pain while impugning the claims of those who are faking or exaggerating symptoms. These possibilities raise concerns about the privacy of our pain. I suggest that while the use of neuroimaging to detect pain implicates significant privacy concerns, our interests in keeping pain private are likely to be weaker than our

interests in keeping private certain other subjective experiences that permit more intrusive inferences about our thoughts and character. – http://ssrn.com/abstract=976831

16. The Future of Neuroimaged Lie Detection and the Law – ABSTRACT – Neuroscience will certainly change law. In fact, neuroscience research has the potential to influence a vast range of legal decisions. To the extent that neuroscientists increasingly make claims that neuroimaging reveals cognition, even the most unimaginative prognosticator might predict: (1) the preliminary investigative use of neuroimages to enhance witness interviews and police interrogations (including but not limited to lie-detection), (2) jury selection based on neuroimages that appear to reveal jurors' unconscious stereotypes or biases, and (3) arguments about intent or sentencing based on neuroimage-enhanced explanations of behavior and predictions of dangerousness. In anticipation of a brave new world of neuroscience 'enhanced' law, this Article suggests that if we want to predict or control future social and legal responses to cognitive neuroscience research, we must carefully and explicitly consider two basic preexisting realities: (1) our shared assumptions about the validity of the medical field of neuroscience and the accuracy of diagnostic neuroimaging technologies; and (2) our increasingly frequent exposure (even within the mainstream media) to uncritical reports of cognitive neuroscience research that purports to correlate brain activity with cognition, deception, or social behavior. The risk, is that if we ignore these realities, judges, jurors, and the general public will likely view all or most neuroscience-based evidence as legitimate 'hard' science because researchers rely on technologically sophisticated neuroimaging tools of demonstrated accuracy. The problem is that judges and jurors will mistakenly assume that technologies that are demonstrably valid medical diagnostic tools

yield equally valid conclusions when they are used to map the neural correlates of deception and other forms of cognition – http://ssrn.com/abstract=1440928

17. The Legality of the Use of Psychiatric Neuroimaging in Intelligence Interrogation – ABSTRACT - This Note examines the legality of the use of a form of psychiatric neuroimaging called functional Magnetic Resonance Imaging (fMRI) in the interrogation of detainees in U.S. custody. Part I provides background on current U.S. interrogation doctrine and the potential role of fMRI in interrogation. Part II examines fMRI in light of International Humanitarian Law, arguing that while its use to detect deception in the voluntary statements of detainees is permissible, its involuntary use in interrogation would violate the anti-coercion provisions of the Geneva Conventions. Part III examines fMRI in light of International Human Rights Law (IHRL) and the U.S. Constitution, arguing that although fMRI would not constitute torture its use may shock the conscience and, in many cases, would be illegal under IHRL and the Constitution. If the government can articulate a sufficient interest in obtaining information from the detainee, however, its use would not violate current law. The Note concludes by arguing that although fMRI does not represent a complete technological solution to the legal

problem of torture, it nevertheless is permissible in certain limited instances – http://ssrn.com/abstract=656841

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18. Unasked (and Unanswered) Questions About the Role o f Neuroimaging in the Criminal Trial Process – ABSTRACT – The robust neuroimaging debate has dealt mostly with philosophical questions about free will, responsibility, and the relationship between brain abnormalities, violence, and crime. This debate, however, obscures several important issues of criminal procedure to which little attention has as of yet been paid: an indigent defendant's right of access to expert testimony in cases where neuroimaging tests might be critical; a defendant's competency to consent to the imposition of a neuroimaging test; and the impact of antipsychotic medications on a defendant's brain at the time that such a test is performed. This article considers these questions from the perspectives of both law and neuropsychology, and, from a clinical perspective, also focuses on identifying cases appropriate for referrals for neuroimaging studies, including preliminary testing based on neuropsychological assessment; understanding the importance of brain impairment as it relates to criminality and violence; establishing criteria for determining competency to consent to such tests, and the potential impact of medications on

brain functioning when neuroimaging tests are conducted. – http://ssrn.com/abstract=1555765

19. Using Neuroscience in Criminal Law – ABSTRACT – Recent developments in neuroscience and brain imaging technology have substantially increased our knowledge of the human brain. The knowledge gained has been applied in a wide variety of disciplines, including the legal system. Although brain imaging evidence has been offered in civil cases, it has been used more extensively in criminal cases. In criminal matters, neuroimaging has been offered with respect to a number of issues, including competence to stand trial, competence to waive essential rights, right to compulsory examinations, criminal responsibility, mitigation in penalty phase litigation, and claims of actual innocence. Some generalizations are possible at this point. CT scans and MRI images as proof of disease or trauma have been readily admitted. Courts have been far more guarded about scans, such as PET and fMRI, when offered as the basis for inferences about broader issues such as competence, insanity, or criminal responsibility in general. Somewhat more liberal standards have been applied to offers of mitigating evidence in death penalty cases. Courts, in ruling, have focused on reliability standards as well as relevance and probative/prejudicial considerations. On the basis of the experience to date, it is fairly predictable that the use of brain imaging, as it continues to improve, will increase in the traditional areas noted above as well as make inroads in some areas where caution and skepticism prevails at this point. In addition, it is possible to envision many potential uses of neuroscience in changing and improving the way the criminal justice system operates and the way traditional roles are carried out. It is reasonable to expect, however, that change of this type is

not likely to occur easily in view of the legal system’s reliance on traditional roles, methods and procedures. – http://ssrn.com/abstract=1405403

20. Visions of Deception: Neuroimages and the Search fo r Truth – ABSTRACT – The historical use of science in the search for truth has posed consistent evidentiary problems of definition, causation, validity, accuracy, inferential conclusions unsupported by data, and complications of real-world applications. As the Innocence Project exoneration data show and the National Academy of Science Report on Forensic Science suggest, our reach in this area may well exceed our grasp. This article argues that the neuroimaging of deception - focusing primarily on the functional magnetic resonance imaging (fMRI) studies done to date - may well include all of these problems. This symposium article reviews briefly the types of neuroimaging used to detect deception, describes some of the specific criticisms leveled at the science, and explains why these small group of studies are not yet courtroom-ready. Arguing that the studies meet neither the general acceptance nor reliability standards of evidence, the article urges courts to act with restraint, allowing time for further studies, further robust criticism of the studies, additional replication studies, and sufficient time for moral, ethical, and jurisprudential rumination about whether

the legal system really wants this type of evidence. – http://ssrn.com/abstract=1421269

21. 'And I Can See Through Your Brain': Access to Exper ts, Competency to Consent, and the Impact of Antipsychotic Medications in Neuroimaging Cases in the Criminal Trial Process – ABSTRACT – This paper considers the implications of neuroimaging in three under discussed aspects of criminal procedure - the implications of Ake v. Oklahoma [an indigent defendant's access to expert testimony] in cases where neuroimaging tests might be critical, [2] the defendant's competency to consent to the imposition of a neuroimaging test or examination; and [3] the impact of medications - specifically, antipsychotic medications - on a defendant's brain at the time that such a test is performed. Given the warning signals that have been raised by commentators as to the potentiality of juror misuse and misinterpretation of neuroimaging testimony, it is critical that we take seriously the issues raised here. I conclude that there are hidden landmines inevitably present when we think about the use of neuroimaging in criminal trials - landmines that go can infect the fairness of the trial process itself. If an indigent criminal defendant is refused access to an independent expert in an area where jurors may uncritically accept neuroimaging testimony [because of its visual appeal and its apparent lack of falsifiability], the fairness of the entire trial remains in question. If no attention is paid to the difficult and complex ethical issues that should surface if the question of the defendant's competency to consent to being tested is not raised, trial fairness is a concern. And finally, if we ignore the reality that the neuroimaging evidence shown to jurors may not be an accurate depiction of the defendant's brain at the time of the offense - but rather, a depiction of his brain at a later time when his brain biochemistry has been altered by the imposition of medication - we willfully blind ourselves to the possibility [perhaps "likelihood"] that

the database presented to the jury is potentially fatally flawed. – http://ssrn.com/abstract=1337219

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22. Law, Responsibility, and the Brain – ABSTRACT – This article addresses new developments in neuroscience, and their implications for law. It explores, for example, the relationships between brain injury and violence, as well as the connections between mental disorders and criminal behaviors. It discusses a variety of issues surrounding brain fingerprinting, the use of brain scans for lie detection, and concerns about free will. It considers the possible uses for, and legal implications of, brain-imaging technology. And it also identifies six

essential limits on the use of brain imaging in courtroom procedures – http://ssrn.com/abstract=982487 23. Can Bad Science Be Good Evidence: Lie Detection, Ne uroscience, and the Mistaken Conflation of Legal

and Scientific Norms – ABSTRACT - As the capabilities of cognitive neuroscience, in particular functional magnetic resonance imaging (fMRI) 'brain scans,' have become more advanced, some have claimed that fMRI-based lie-detection can and should be used at trials and for other forensic purposes to determine whether witnesses and others are telling the truth. Although some neuroscientists have promoted such claims, most aggressively resist them, and arguing that the research on neuroscience-based lie-detection is deeply flawed in numerous ways. And so these neuroscientists have resisted any attempt to use such methods in litigation, insisting that poor science has no place in the law. But although the existing studies have serious problems of validity when measured by the standards of science, and true as well that the reliability of such methods is significantly lower than their advocates claim, it is nevertheless an error to assume that the distinction between good and bad science, whether as a matter of validity or of reliability, is dispositive for law. Law is not only about putting criminals in jail, and numerous uses of evidence in various contexts in the legal system require a degree of probative value far short of proof beyond a reasonable doubt. And because legal and scientific norms, standards, and goals are different, good science may still not be good enough for some legal purposes, and, conversely, some examples of bad science my, in some contexts, still be good enough for law. Indeed, the exclusion of substandard science, when measured by scientific standards, may have the perverse effect of lowering the accuracy and rigor of legal fact-finding, because the exclusion of flawed science will only increase the importance of the even more flawed non-science that now dominates legal fact-finding. And thus the example of neuroscience-based lie detection, while timely and important in its own right, is even more valuable as a case study suggesting that Daubert v. Merrill-Dow Pharmaceuticals may have sent the legal system down a false path. By inappropriately importing scientific standards into legal decision-making with little modification, Daubert confused the goals of science with

those of law, a mistake that it is not too late for the courts to correct – http://ssrn.com/abstract=1448744

24. Brain Imaging and Courtroom Evidence: On the Admiss ibility and Persuasiveness of fMRI – ABSTRACT – Functional magnetic resonance imaging (fMRI) is currently the most advanced technique for measuring and depicting brain function. Functional MRI studies abound in neuroscience, psychiatry and psychology. Inevitably, fMRI-based evidence will be offered in court as proof of matters involving parties' mental states and capabilities. This paper analyses the likely admissibility of fMRI testimony and images. Cases involving other types of functional neuroimaging (PET and SPECT), which may shed light on judges' receptivity to fMRI evidence, are briefly surveyed. The conceptual and methodological underpinnings of fMRI are then explored, prompting basic questions about the evidentiary reliability and relevance of fMRI results. The first reported case involving fMRI evidence, which raises several of these questions, is described. Finally, the admissibility and probative value of the fMRI images themselves are discussed. Assuming that the expert testimony that the images are offered to illustrate is admissible, it is argued that the law can obtain the benefits of fMRI science while minimising the judgmental risks by allowing triers of fact to see the images and encouraging experts and lawyers to educate the triers to

interpret the images properly. – http://ssrn.com/abstract=1301112

25. Cherry-Picking Memories: fMRI-Based Lie Detection i n the U.S. Courts – ABSTRACTS – U.S. courts have recently begun to consider accepting evidence whether a witness is lying in the form of scientific conclusions drawn on data gathered from functional magnetic resonance imaging (fMRI). This article discusses fundamental fMRI-based research techniques from a scientific basis and applies them to the current jurisprudence of U.S. federal courts. It argues that much of the generally-agreed knowledge in cognitive neuroscience pertinent to neuroimaging-based lie detection does not allow a court to reach the conclusion that evidence is more probative than prejudicial. First, a witness/test-taker can manipulate the outcome of the test using countermeasures. Second, the test administrator can manipulate the outcome of the test using tactical research decisions. Third, the ends of judicial efficiency are not served by allowing both proposing and opposing parties to present data that is scientifically equivocal, wasting the time of both courts and jurors. In a second Part, this article proposes a systematic, scientific approach to the Daubert standard as interpreting Federal Rule of Evidence 702. This approach affords a thorough analysis of the phases of scientific research. Finally, we recommend that while fMRI-based lie detection is not yet ripe for adoption in the U.S. courts at the present time, such testimonial evidence may be admissible when the cognitive neuroscience of lie detection has reached the level of general acceptance such that the principles may be found in undergraduate textbooks. –

http://ssrn.com/abstract=1582262

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26. Tessling on My Brain: The Future of Lie Detection a nd Brain Privacy in the Criminal Justice System – ABSTRACT – The criminal justice system requires a reliable means of detecting truth and lies. A battery of emerging neuroimaging technologies make it possible to gauge and monitor brain activity without the need to penetrate the cranium. Bypassing external physiological indicators of dishonesty relied upon by previous lie detection techniques, some neuroimaging experts believe in the possibility of reliable brain scan lie detection systems in the criminal justice system. Although philosophers, psychologists and sociologists have appreciated the complexity of distinguishing truth from lies, our courts are increasingly looking to neuroscience as a means of reducing the search for truth to the existence or non-existence of certain brain states. In this article, the authors assert that Canadian courts' current approach to protecting privacy cannot easily accommodate the challenges caused by these emerging technologies, examine the possibility of remote, surreptitious brain surveillance and address the potential threat to privacy this poses. The article commences with an examination of the 'reasonable expectation of privacy' standard adopted by the Supreme Court of Canada, arguing that various courts across Canada have misunderstood and misapplied the Tessling decision by way of an inappropriate analogy. After a description of brain scan lie detection systems, the authors then examine the courts' use of the Tessling analogy in the context of brain privacy. In addition to demonstrating the danger in a generalized judicial proposition that there is no reasonable expectation of privacy in information emanating from a private place into a public space, the authors conclude that a more robust account of brain privacy is required and speculate about possible sources of law from which this might derive. The article suggests that the goal of using brain based lie detection

in our criminal justice system will require better developed theories and understanding of privacy. – http://ssrn.com/abstract=1299291

27. Brain Imaging and Courtroom Deception – ABSTRACT – Scientists have developed new approaches to lie detection that use a brain scanning technique called functional magnetic resonance imaging (fMRI) to evaluate whether someone is lying. Enthusiasts hope that courts will be more receptive to fMRI lie detection techniques than they have been to polygraph tests. But two recent court decisions -

United States v. Semrau and Wilson v. Corestaff Services - suggest that these techniques are far from ready for courtroom use. – http://ssrn.com/abstract=1763304

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28. Functional Magnetic Resonance Imaging to Detect Dec eption: Not Ready for the Courtroom – ABSTRACT – Despite media hype and at least two companies marketing themselves as offering scientific expert testimony admissible in US courts on whether a witness is telling the truth, recent decisions by a trial court in New York and a Federal Magistrate Judge in Tennessee indicate that replacing the jury deliberation room with a magnetic resonance imaging machine is not in the foreseeable future. Functional magnetic resonance imaging (fMRI), an emerging field of neuroscience that seeks to correlate brain activity to behavior, has been touted by some to be the new lie detector. The MRI machine is able to “see” the increase in oxygenated blood as it fuels various regions of the brain during actions and activities. The hypothesis underlying fMRI as a lie detector is that telling the truth is the natural or normal response of the brain and one would not expect to see increased activity over and above the normal background level of brain activity. But when the subject begins to prevaricate, more brain activity is needed and more oxygenated blood is directed to those regions of the brain processing the “lie.” This blood oxygenation level-dependent (BOLD) differential is measurable by the fMRI. Comparing the BOLD differential between subjects known to be telling the truth and then deliberately lying allows researchers to hypothesize that increased BOLD above the base line in certain regions of the brain when the subject is answering questions is an indication of deception. It might be in the lab, but the rules of evidence as applied in US courts considers the citizens of the community selected to sit on the jury more reliable “lie detectors” than the new technology represented by fMRI. Two recent decisions, one in a Federal court applying the Federal Daubert standard and one is New York state court applying the Frye general acceptance test, rejected expert testimony based on the results of fMRI scanning. In finding fMRI failed to satisfy the exacting standard of Federal Rule of Evidence 702, a Federal magistrate judge in United States v. Semrau measured the new technology against the Daubert reliability factors. fMRI passed the first two factors, testing and peer review. The court noted that the technology was certainly capable of and was being tested and that numerous articles concerning fMRI had appeared in the peer reviewed scientific literature. The next two Daubert factors, the known or potential error rate and the existence and maintenance of standards, however posed significant problems. While there may be some identifiable error rates associated with fMRI in the controlled lab setting, it was undisputed that error rates in the “real world” application are completely unknown. Similarly, protocols exist for lab studies of fMRI but not such standards exist for real-life applications. In fact, Dr. Steven Larkin, the expert witness for plaintiff in Semrau, and one of the leading proponents of fMRI as a lie detector admitted to deviating from his own protocol in administering the test on Dr. Semrau. Finally, the court found that fMRI as a reliable lie detector had not achieved general acceptance by the scientific community, the fifth Daubert factor. By failing to meet three of the five Daubert factors, the magistrate judge concluded that fMRI was not sufficiently reliable to admit under FRE 702. The magistrate judge also found the use of fMRI to bolster Dr. Semrau’s credibility more prejudicial than probative. Relying primarily on cases excluding polygraph examinations taken without the knowledge or participation of the opposing party, the magistrate judge concluded that the unilateral fMRI test here lacked probative value because Dr. Semrau faced no negative consequences by undergoing the test. Accordingly, the evidence was excluded under FRE 403. The New York case, Wilson v. Corestaff Services L.P., applied the Frye general acceptance standard to fMRI based expert testimony to bolster the plaintiff’s witness in an employment discrimination case. The court was troubled be the notion that fMRI based expert testimony would usurp the jury’s responsibility to determine the credibility of the witnesses, a dramatic departure from the traditions of a common law trial. Additionally, the court found the plaintiff was unable to show the use of fMRI to determine truthfulness had been generally accepted by the relevant scientific community, the standard for admissibility under Frye. The analysis in Semrau and Wilson combined imposes significant hurdles to the admissibility of fMRI on the issue of witness credibility. The procedure failed to meet the reliability standards of FRE 702 and the general acceptance requirement of Frye. Furthermore, concerns over jury confusion, usurpation of the traditional function of the jury in judging credibility, and whether such testimony is even an appropriate matter for expert opinion raise additional hurdles. For proponents of fMRI expert testimony on witness credibility the obstacles to

admissibility are significant under current law. – http://ssrn.com/abstract=1809761

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ARXIV REFERENCES

1. A supervised clustering approach for fMRI-based inference of brain states – ABSTRACT – We propose a method that combines signals from many brain regions observed in functional Magnetic Resonance Imaging (fMRI) to predict the subject's behavior during a scanning session. Such predictions suffer from the huge number of brain regions sampled on the voxel grid of standard fMRI data sets: the curse of dimensionality. Dimensionality reduction is thus needed, but it is often performed using a univariate feature selection procedure, that handles neither the spatial structure of the images, nor the multivariate nature of the signal. By introducing a hierarchical clustering of the brain volume that incorporates connectivity constraints, we reduce the span of the possible spatial configurations to a single tree of nested regions tailored to the signal. We then prune the tree in a supervised setting, hence the name supervised clustering, in order to extract a parcellation (division of the volume) such that parcel-based signal averages best predict the target information. Dimensionality reduction is thus achieved by feature agglomeration, and the constructed features now provide a multi-scale representation of the signal. Comparisons with reference methods on both simulated and real data show that our approach yields higher prediction accuracy than standard voxel-based approaches. Moreover, the method infers an explicit weighting of the regions involved in the

regression or classification task. – [http://arxiv.org/abs/1104.5304]

2. Encoding and decoding V1 fMRI responses to natur al images with sparse nonparametric models – ABSTRACT – Functional MRI (fMRI) has become the most common method for investigating the human brain. However, fMRI data present some complications for statistical analysis and modeling. One recently developed approach to these data focuses on estimation of computational encoding models that describe how stimuli are transformed into brain activity measured in individual voxels. Here we aim at building encoding models for fMRI signals recorded in primary visual cortex of the human brain. We use residual analyses to reveal systematic nonlinearity across voxels not taken into account by previous models. We then show how a sparse nonparametric method (Ravikumar, et al., 2009) can be used together with correlation screening to estimate nonlinear encoding models effectively. Our approach produces encoding models that predict about 25% more accurately than models estimated using other methods (Kay, et al., 2008). The estimated nonlinearity impacts the inferred properties of individual voxels, and it has a plausible biological interpretation. One benefit of quantitative encoding models is that estimated models can be used to decode brain activity, in order to identify which specific image was seen by an observer. Encoding models estimated by our approach also improve such image identification by about 12% when the correct image is

one of 11,500 possible images. – [http://arxiv.org/abs/1104.2805]

3. Total variation regularization for fMRI-based predi ction of behaviour – ABSTRACT – While medical imaging typically provides massive amounts of data, the extraction of relevant information for predictive diagnosis remains a difficult challenge. Functional MRI (fMRI) data, that provide an indirect measure of task-related or spontaneous neuronal activity, are classically analyzed in a mass-univariate procedure yielding statistical parametric maps. This analysis framework disregards some important principles of brain organization: population coding, distributed and overlapping representations. Multivariate pattern analysis, i.e., the prediction of behavioural variables from brain activation patterns better captures this structure. To cope with the high dimensionality of the data, the learning method has to be regularized. However, the spatial structure of the image is not taken into account in standard regularization methods, so that the extracted features are often hard to interpret. More informative and interpretable results can be obtained with the l_1 norm of the image gradient, a.k.a. its Total Variation (TV), as regularization. We apply for the first time this method to fMRI data, and show that TV regularization is well suited to the purpose of brain mapping while being a powerful tool for brain decoding. Moreover, this

article presents the first use of TV regularization for classification. – [http://arxiv.org/abs/1102.1101]

4. Community Detection in Networks: The Leader-Follow er Algorithm – ABSTRACT - Traditional spectral clustering methods cannot naturally learn the number of communities in a network and often fail to detect smaller community structure in dense networks because they are based upon external community connectivity properties such as graph cuts. We propose an algorithm for detecting community structure in networks called the leader-follower algorithm which is based upon the natural internal structure expected of communities in social networks. The algorithm uses the notion of network centrality in a novel manner to differentiate leaders (nodes which connect different communities) from loyal followers (nodes which only have neighbors within a single community). Using this approach, it is able to naturally learn the communities from the network structure and does not require the number of communities as an input, in contrast to other common methods such as spectral clustering. We prove that it will detect all of the communities exactly for any network possessing communities with the natural internal structure expected in social networks. More importantly, we demonstrate the effectiveness of the leader-follower algorithm in the context of various real networks ranging from social networks such as Facebook to biological networks such as an fMRI based human brain network. We find that the leader-follower algorithm finds the relevant community structure in these networks without knowing the number of communities beforehand. Also, because the leader-follower algorithm detects communities using their internal structure, we find that it can resolve a finer community structure in dense networks than common spectral

clustering methods based on external community structure. – [http://arxiv.org/abs/1011.0774]

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I thus leave this to you to decide, however, consid er in your deliberations a quote from the late Madame Justice Georgina Quiano – ‘If the contents of what you are redaing do not make you angry, it should make you s cared’

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Psalm 107 Verses 23-32

23: They that go down to the sea in ships, that do business in great waters;

24: These see the works of the LORD, and his wonder s in the deep.

25: For he commandeth, and raiseth the stormy wind, which lifteth up the waves thereof.

26: They mount up to the heaven, they go down again to the depths: their soul is melted because of trouble.

27: They reel to and fro, and stagger like a drunke n man, and are at their wits’ end.

28: Then they cry unto the LORD in their trouble, a nd he bringeth them out of their distresses.

29:He maketh the storm a calm, so that the waves th ereof are still.

30: Then are they glad because they be quiet; so he bringeth them unto their desired haven.

31:Oh that [men] would praise the LORD [for] his go odness, and [for] his wonderful works to the children of men!

32: Let them exalt him also in the congregation of the people, and praise him in the assembly of the elders.

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MRI: Deciphering inner space Nikolaus Weiskopf , Head of Physics at the Wellcome Trust Centre for Neuroimaging, talks about how magnetic resonance im aging works. NW: An MRI machine basically consists of I would say three ingredients: we need a strong static magnetic field, we need a so-called radio frequency field for transmitting and receiving signals, and the third one is so-called gradient fields or gradient coils, and we use those to – what we call to encode space, basically to localise where the signal comes from. So the first part of the scanner is a large superconducting coil, which generates a static magnetic field which is very strong, about 1.5 of 3 tesla. As soon as you put a sample, or for example a volunteer, into the magnet, what will happen is that the hydrogen nuclei or protons will preferentially align with that static magnetic field. And the higher the static magnetic field, the more likely or the more spins will align with the field. And what you want to do next, you want to perturb them, get them out of this state of equilibrium. To achieve that what you do is you apply a so-called radio frequency pulse, and that will be picked up by the spins in your head for example and tilt them basically from the direction of the static magnetic field if they are aligned in the state of equilibrium, away from it into for example transverse plain. So from longitudinal to transverse. So it will have to back from that into the longitudinal state again because this is the energetically most stable state you can achieve. Basically the axis of that spin system will precess about the axis of the static magnetic field. The higher the strength of the static magnetic field is, the faster they will precess. So a low field means low precession, a high field means fast precession. We can have now one coil, one additional coil, which increases the field for example going from here to here, so the field is low here and it’s high here. If you think about your spin systems now, the ones that see the lower field down at this position will have a rather low Larmor frequency. The ones that sit over here will see a higher magnetic field and so they will also exhibit a higher Larmor frequency. And we can assign a location to each of those frequencies now. Because we know what field we have imposed in addition, what gradient field we have imposed in addition to the static magnetic field. And that’s the way how we can basically distinguish for example left from right, top from bottom and so on. And that’s also a reason why we need three gradient coils, for the X, Y and Z direction, so we can distinguish the three dimensions in space.

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A Call for a Moratorium on the Use of Information D erived from Neuroimaging

ABSTRACT - Any law student who has taken Evidence has read about, or better experienced, an experiment in which a man bursts into a crowded classroom, runs through shouting and then leaves. When questioned directly after the event there is strong disagreement among the witnesses as to what the man was saying, what he was wearing and whether or not he had a gun. Based on the work of psychologist Elizabeth Loftus, now on the faculty of the University of California at Irvine Law School, this experience, more than any dry article about cognitive science, demonstrates the inherent unreliability of human memory and the conviction of eye-witnesses about what they have seen. Lawyers involved in the Innocence Project which is seeking to challenge wrongful convictions based on eye-witness testimony by examining conflicting DNA evidence have further brought these findings to public attention. As they explain, 'Research shows that the human mind is not like a tape recorder; we neither record events exactly as we see them, nor recall them like a tape that has been rewound.' Yet despite what has become common knowledge about the malleability of human memory, the idea that it’s possible to access the brain directly to find out whether a witness is telling the truth is being put forward by companies which seek to profit from research that suggests that new imaging technology can detect when a human is telling a lie. These companies are advertising this technology as a tool for law enforcement and promoting its use in U.S. trials as a way of helping juries to assess the credibility of witnesses. This article explores these claims that neuroimaging scans can be used to detect lies, which far exceed those made by responsible scientists, and also puts them in the context of a series of U.S. Supreme Court cases which have dramatically changed how scientific (forensic) evidence can be presented to the jury in criminal trials. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L. Ed. 2d 469 (1993) (establishing new criteria for admission of scientific evidence); Crawford v. Washington, 541 U.S. 36 (2006) (requiring that defendants directly face accusors). It also addresses the significant criticisms being brought against what has often been incautious adoption of unreliable techniques. 'Strengthening Forensic Science in the United States: A Path Forward' (National Research Council 2009). In this article I argue that promises of lie detection are not only based on false premises, but they are harmful to the integrity of the legal system because they seek to substitute a technology, which is not just undeveloped and inadequately tested but inherently flawed, for the judgment of the fact-finder, judge or jury, in a criminal trial. I conclude that even if there was neuroimaging technology which could provide direct access to human thought, the result would share the inaccuracies and subjectivity that we already know is an inherent feature of human memory. Moreover, because this technology promises to do something that jurors know they cannot - determine when a person is lying - there is a substantial risk that it will prejudice defendants because jurors will substitute the results of the technology for their own collective judgment.

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