Reliability concerns of functional MRI evidence in criminal trials

Brain Scans as Evidence

"Brain images provide insight to understanding behavior.

Additionally, the images themselves carry great impact, particularly when used to show differences in either the anatomy or the biological functioning of two different brains.

For these reasons, brain images have increasingly been used

in both criminal and civil trials"

Even though images from brain scans may be used as "evidence" in trials, researchers regularly relate a number of concerns that currently challenge the perception the quote introducing this study asserts. In fact, lshani Ganguli (2007), Harvard University, cites Nancy Kanwisher, a professor of cognitive neuroscience at MIT, to assert in the article, lshani Ganguli "Watching the Brain Lie": "[Functional magnetic resonance imaging] fMRI Is a Messy Muddy Mixed Field...[That Requires] Extremely Well Trained People. That's the Last Kind of Technology You Want to Use in the Legal System" (Kanwisher, Ganguli, 2007, Anatomy of…section, ¶ 8). Distortions attributed to the "hardware" of fMRI, as well as a number of other issues, contribute to uncertainty regarding the reliability of the methods utilized to detect and record brain functionality as it relates to concepts such as pain, lying, and other sensations and behaviors relevant to factual issues in the courtroom. While scientists may successfully study and surmise areas reportedly related to certain behaviors or sensations across a number of human brains, confirmation regarding the reliability of this practice remains evasive as findings primarily evolve; subject to the interpreter's subjective observations.

The lack of consensus in the Medical and Neuroscientific community regarding what specific areas of brain activity influence particular behaviors and sensations reveal that one's understanding of the human brain prevents one from accurately interpreting the data to provide a consistent and reliable source of information with regard to matters relevant to a court case, such as intent, deception, or pain. A distinct possibility exists that these hurdles will eventually be overcome, perhaps even in the near future. Current credibility concerns relating to data collected directly from the human brain and rendered into images through fMRI technology, albeit, impede one's ability to predict and analyze behavior and sensations. In light of these comprehensible, challenging yet fatal shortcomings and concerns, the researcher asserts that just as a polygraph test should not be admitted in court as evidence, the fMRI should not likewise inadmissible.

Functional MRI Lie Detection

Mark Pettit, Jr. (2007), Professor, Boston University School of Law, asserts that although the science behind fMRI appears sophisticated, the basic concept may be readily understood. Pettit explains that fMRI involves creating a series of brain images to reveal "changes in blood levels in the various areas of the brain over time. & #8230; the & #8230;immediate use of fMRI, & #8230; that has generated the most interest and debate about possible courtroom use, is lie detection.

The theory purports that blood levels depict how hard the brain works. As lying requires more "brain work" than telling the truth, comparisons from brain scans reportedly reveal when the individual may be lying. (Pettit, Jr., 2007,

Dr. Laurence R. Tancredi, a Clinical Professor of Psychiatry, New York University School of Medicine and Dr. Jonathan D. Brodie (2007), the Marvin Stern Professor of Psychiatry, New York University School of Medicine, as noted in the quote introducing this study, assert that brain imaging constitutes a credible courtroom tool. Tancredi and Brodie (2007) explain that fMRI works on the principle that changes in the brain's hemodynamics, "which relate to mental operations, can be detected and mapped using basic MRI instrumentation. At this time [during 2007], the most widely used method to measure cerebral blood flow using MRI has been the Blood Oxygen Level Dependent (BOLD) technique."

The fundamental physiological notion supporting this technique, contingent on the 70-year-old observation that the hemoglobin properties in a strong magnetic field depend on its state of oxygen saturation, contends that increased neural activity in a particular brain region results in greater consumption of oxygen from the blood close to these neurons. Increased blood flow, as well as, blood volume of the local vasculature of the brain's activated regions accompany the increased oxygen consumption.

Simpson (2008), Staff Psychiatrist, VA Long Beach Healthcare System, Long Beach, California, investigatges the proposition that fMRI may serve as a potential new lie-detection technique, not based on the measurement of autonomic reactions. In the journal publication, "Functional MRI Lie Detection: Too Good to be True?," Simpson asserts that the application of fMRI, a frequently used tool in neuroscientific research may be utilized to obtain measurements of cerebral blood flow in individuals engaged in deception. "Within the past two years, two separate research groups have devised experimental paradigms and statistical methods that they claim allow identification of brain activity patterns consistent with lying."

Researchers relating findings from these groups claim the approaches may be used on individual subjects, with approximately 90% accuracy.

Advantages of fMRI

Tancredi and Brodie (2007) explain that along with being readily available to researchers and clinicians; reportedly providing enhanced detail and resolution over comparable imaging methods, fMRI offers two distinct advantages over alternative methods for imaging brain activity.

1. The introduction of radioactive isotopes is not required for the production of the signal for measurement; making fMRI essentially non-invasive. In turn, the process may be repeated frequently, if necessary, on the same person without the concern of adverse radiological effects.

2. " fMRI allows for the integration of anatomical (structural), neural, and molecular information in a single session. The gleaning of data on brain activity along with information about the anatomy of the region can be achieved within seconds."

As the process surveys neural and metabolic status of the region is simultaneously, fMRI exceeds other brain imaging non-invasive modalities.

Disadvantages of fMRI

lshani Ganguli (2007), Harvard University, asserts in the article, "Watching the Brain Lie," that fMRI lie detection does not yet merit a place in the courtroom or elsewhere. Kanwisher stresses: "No published studies come even close to demonstrating the kind of lie detection that would be useful in a real world situation."

In addition, according to Ganguli (2007), a number of various types of lies exist that include omissions, white lies, exaggerations, and denials which potentially involve differing neural processes that scientists have not yet mastered.

Jed Rakoff, U.S. .District Judge for the Southern District of New York, admits that he doubts fMRI tests will conform to the courtroom standards for "scientific evidence (reliability and acceptance within the scientific community) anytime in the near future, or that the limited information they provide will have much impact on the stand."

As most lies in court include omissions or exaggerations of the truth; they would be tricky to recreate in a laboratory. The potential for harm overshadow any foreseeable benefits from fMRI, Rakeff purports. Yet another drawback could materialize if an individual actually believed a lie. Whether or not a machine would identify this data as a truth or a lie is not yet clear.

Stacey a. Tovino (2007), Assistant Professor of Law, Health Law Institute, Hamline University School of Law, contends that fMRI presents a number of practical issues. "Individuals whose brains are being scanned must lie completely still for a period of time within an MRI scanner, which can be loud and claustrophobic. Brain motion resulting from the individual's movement or, even, the individual's respiratory and cardiac cycles, can interfere with data acquisition."

The validity of results from the fMRI also depend on the person's willingness and ability to comply with and complete the assigned mental task.

Henry T. Greely, Deane F. And Kate Edelman Johnson Professor of Law, Stanford University and Judy Illes (2007), Associate Professor (Research) of Neurology, Stanford University, relate another concern as they assert that fMRI-based lie detection is not currently covered by any type of regulatory scheme. In human trials for fMRI, no guidelines cover how an effective and ethical trial could best be conducted.

Moral Aspects of fMRI

In the book, International Handbook on Psychopathic Disorders and the Law, Alan Felthous and Henning Sass (2007) report that fMRI has begun to address ways emotion relates to brain function and the neural underpinnings of learning from punishment; that fMRI techniques facilitate the investigation of the neural basis of moral decisions. As emotion and cognition closely intertwine, cognitive processes and emotional processing influence the control and regulation of behavior. "For healthy subjects, studies with… fMRI show a dynamic interplay between cognition and emotion with a reciprocal association between emotional and cognitive brain areas."

No current study reveals which brain circuits are activated when psychopaths deliberately falsify information, a significant consideration for court evidence.

Dr. William P. Cheshire, Jr., (2007), Associate Professor of Neurology at the Mayo Clinic College of Medicine, asserts that neuroscience knowledge may be measured in degrees of resolution. "Greater neuroimaging resolving power means more finely detailed representations of the human brain. As the brain is the physical correlate of the mind, its grey matter and intricate interconnections are subject to scientific investigation."

More and more, neuroimaging methods can map out, voxel by voxel, the neurobiological pathways that motivate various components of thoughts and d behavior. In addition to examining the quality of fMRI images, the methods and presuppositions of neuroimaging also need to be considered. Cheshire, Jr. further explains:

Implicit in every voxelous reconstruction of the brain is the idea that the brain is virtually, if not essentially, reducible to matter. Reductionism can clarify, but it can also mislead. Vibrant voxels may elucidate pertinent facts. Exclusive attention to them may overlook important truths.

Conclusion

The literature appears to support the researcher's initial thesis that the reality that the visual output from the fMRI scanning method will be entered into court as evidence is not yet clear nor confirmed. The researcher concurs with Kanwisher that mapping the human brain precisely and reliably depicts a lofty goal that may possibly be attained in the near future. Nevertheless, the technologies behind the modern tools the medical industry uses to scan brains and analyze brain activity, even though much more advanced than the polygraph machine, the visual data, just as with the output of a polygraph, present concerns that challenge their value. When used to predict behaviors or sensations, these technical tools rely on the same error-prone method of interpretation: The non-standardized and unproven interpretive techniques and perhaps biased expectations of the examiner.

As proposed at the start of this paper, the lack of consensus in the medical and neuroscientific community regarding brain activity and the individual's behaviors and sensations reveals that contemporary understanding of the human brain prohibits accurate interpretation of retrieved data. As a result, the fMRI cannot currently proffer a consistent and reliable source of information with regard to matters relevant to a court case such as intent, deception, or pain. Challenges confirmed during this paper regarding this area currently impede the ability to predict and analyze behavior and sensations based on data collected directly from the human brain and rendered into images through fMRI technology. This understandable, yet fatal shortcoming, the present study confirms, complements the researcher's argument that such evidence should not be admitted in court.