Deceptively Simple: Framing, Intuition, and Judicial Gatekeeping of Forensic Feature-Comparison Methods Evidence

This Article explains how courts have skirted the reliability problem of FCM evidence and argues that judges perceive the question of FCM evidence to be a simple problem that cross-examination can solve. Relying on insights from cognitive science to help explain the resistance of the courts to FCM evidence challenges, the Article urges courts to recognize the complexity of FCM evidence and refocus on the danger such evidence poses for continued wrongful conviction. By framing the admissibility of FCM evidence as an “easy” question, courts are relying on heuristics—that is, shortcuts—to solve complex problems. As this Article explains, using heuristics can lead to more error-prone decisions, as such shortcuts are vulnerable to various cognitive biases and systemic fallacies. In both reasoning and language, courts exhibit biased-affected decision-making. Part I of the Article briefly reviews the NRC report and the PCAST report while Part II discusses cases addressing FCM evidence. The cognitive science that may explain the courts’ consistent approaches to the evidence is considered in Part III. Part III then applies these concepts to judicial decision-making related to FCM evidence—a complicated problem in need of greater analysis

Seeing Voices: Potential Neuroscience Contributions to a Reconstruction of Legal Insanity

Part I of this Article explains the insanity defense in the United States. Next, Part II discusses some of the brain-based research about mental illness, focusing on schizophrenia research. Then, Part III looks at traumatic brain injury and the relationship among injury, cognition, and behavior. Finally, Part IV explains how a new neuroscience-informed standard might better inform our moral decision making about legal insanity

Rape, Affirmative Consent to Sex, and Sexual Autonomy: Introduction to the Symposium

Introduction to the Symposium focusing on issues arising from determining when sex is the product of free choice, when it is the result of force, and the legal and philosophical implications arising from those issues. To introduce this Symposium, I first discuss the issues related to the crime of rape, the idea of sexual autonomy, and the concept of affirmative consent to sex. Then, I briefly summarize the symposium authors’ various approaches to these topics

Visions of Deception: Neuroimages and the Search for Truth

As a form of expert testimony, polygraph evidence is riddled with causation problems. A key concern is that it conflates correlation with causation; its design measures anxiety or arousal as manifested in blood pressure, galvanic skin response, and respiration, resting on the assumption that lying will provoke an anxious response. But some polygraph subjects are not anxious and do not exhibit physiological correlates of anxiety. And asking an innocent person “did you kill John Doe” may well evoke an anxious (but believed to be guilty) reaction. Additionally, measuring physiological responses to a question about murder against a control question like “did you ever steal anything as a child” may not be sufficiently discerning to determine serious lies from truth, since such a control question cannot pose the same level of stress that the real life questions can. Thus, the first problem is that the polygraph uses anxiety as a proxy for guilt, both overreaching and under-reaching, not recognizing that while there may often be some correlation between anxiety and guilt, the proof of actual causation is not as surefooted as claimed. The second problem is that it is incredibly difficult to create real-world consequences in control questions. The third problem is that countermeasures are potentially effective against the polygraph, competently disguising a “guilt” reactio

Symposium; Gender, Health, and the Constitution: Hysteria Redux: Gaslighting in the Age of Covid

This article addresses the relationship among hysteria, gaslighting, and gender during the Covid pandemic in the political and public-health messaging about Covid. It analyzes the U.S. public health messaging in the age of Covid, explaining how individualism, gender, and gaslighting have shaped the public response to the virus and negatively affected public health. In explaining the poor U.S. public health outcomes during Covid, the article evaluates the role of disinformation about vaccines, the “feminization” of masking, and the “vax and relax” public mantra, which suggested that those who did not relax were perhaps a bit hysterical. Finally, the article considers how gaslighting occurs in the context of dismissing the potential long-term dangers of Covid infections and reinfections

Foreword to the Neuroscience, Law & Government Symposium

It is with much pleasure that I write the foreword for this Symposium in the Akron Law Review. The authors were each presenters at the Neuroscience, Law & Government Conference, held at The University of Akron School of Law in September, 2008. The articles in this edition of Akron Law Review are as diverse as the presentations themselves, and provide a fascinating glimpse into various ways in which neuroscience is making inroads in both law and government. The explosion of neuroscience and neuroimaging discoveries this decade is nothing short of remarkable, leading one prominent scientist to term the last several years “the decade of the mind.” Neuroscience has become a dominant aspect of scientific inquiry—there are now over 35,000 members of the Society for Neuroscience, a group which integrates scholarly work from scientific, mathematic, psychological, medical, and computer-based disciplines. The emergence of functional magnetic resonance imaging, commonly termed “fMRI,” has substantially affected basic cognitive neuroscience research. Indeed, according to an article published in Nature in 2008, it appears as though there are roughly 19,000 peer-reviewed articles that may have used fMRI in some capacity

Using Brain Imaging for Lie Detection: Where Science, Law, and Policy Collide

Progress in the use of functional magnetic resonance imaging (fMRI) of the brain to evaluate deception and differentiate lying from truth-telling has created anticipation of a breakthrough in the search for technology-based methods of lie detection. In the last few years, litigants have attempted to introduce fMRI lie detection evidence in courts. This article weighs in on the interdisciplinary debate about the admissibility of such evidence, identifying the missing pieces of the scientific puzzle that need to be completed if fMRI-based lie detection is to meet the standards of either legal reliability or general acceptance. We believe that the Daubert’s “known error rate” is the key concept linking the legal and scientific standards. We posit that properly-controlled clinical trials are the most convincing means to determine the error rates of fMRI-based lie detection and confirm or disprove the relevance of the promising laboratory research on this topic. This article explains the current state of the science and provides an analysis of the case law in which litigants have sought to introduce fMRI lie detection. Analyzing the myriad issues related to fMRI lie detection, the article identifies the key limitations of the current neuroimaging of deception science as expert evidence and explores the problems that arise from using scientific evidence before it is proven scientifically valid and reliable. We suggest that courts continue excluding fMRI lie detection evidence until this potentially useful form of forensic science meets the scientific standards currently required for adoption of a medical test or device. Given a multitude of stakeholders and, the charged and controversial nature and the potential societal impact of this technology, goodwill and collaboration of several government agencies may be required to sponsor impartial and comprehensive clinical trials that will guide the development of forensic fMRI technology