Mris Legal and Scientific Review

¶ … MRIs

LEGAL and SCIENTIFIC REVIEW of MRI

TO DETERMINE INNOCENCE in CASES

The objective of this work is to research the use of MRIs in court cases and specifically related to the social consequences of the advance in neuroscience, the legal problems and legal perspectives of this use.

Historically, there have been many folk tales that point the way to discerning whether an individual is telling the truth or whether that individual is in fact lying. The most popular method in detecting lies was developed in the 1930s and is the polygraph machine however; the accuracy of this method is disputed widely. A new method of detection which is called 'brain fingerprinting' looks at the brainwaves of a subject to see if specific brainwaves are present after the individual has been given some type of visual object to look at that is associated with the crime that is being investigated. The specific brainwave will not appear unless the individual has some memory of the crime stored in their brain. There are however, limitations with both the polygraph and brain fingerprinting exist particularly as related to admissibility in court evidence. However, there is a new technique specifically 'Functional Magnetic Resonance Imaging of the Braining Curing Deception' which is a method that when used 'telltale areas of the brain 'light up' when a subject is using his or her mind to lie, areas that remain dark when the subject is giving a truthful answer." (Bean, 2007)

I. Neuroscience and the 'No-Lie' fMRI

Neuroscience is stated to be the "science concerned with the development, structure, function, chemistry, and pharmacology and pathology of the human nervous system...and is directed at exploring the architecture and functions of the brain as well as the effects of stimuli on part of the brain and cerebral performance." (Committee on Science and Law, 2005) There are three main areas of research in neuroscience, which are:

1) Imaging of the brain and other neurodiagnostic techniques;

2) Exertion of influence on the brain; and 3) Design and construction of the brain." (Committee on Science and Law, 2005)

Technological innovations have changed the methods of investigations conduction on the part of authorities throughout the entire history of the criminal justice system. A new technology holds the potential to "revolutionize the investigatory landscape" and that technology is "Brain Fingerprinting" (BF). (Taylor, 2007) Brain Fingerprinting is an examination "...designed to determine if particular information is familiar to a test subject in a specific context (such as that of a crime)." (Taylor, 2007) the way that brain fingerprinting works is a testing to see if the individual is "familiar with a particular place, time or action, and does so using brain monitoring technology that is nearly impossible to deceive." (Taylor, 2007) the technology of brain fingerprinting is actually the monitoring of brain wave impulses.

There are four phases of a criminal case in which brain fingerprinting may be used which are those of:

1) Investigation;

2) Interviewing;

3) Scientific testing; and 4) Adjudication." (Taylor, 2007)

The work of Illes and Racine (2005) entitled: "Imaging or Imagining? A Neuroethics Challenge Informed by Genetics? states that brain fingerprinting works in a way that "when the brain recognizes significant information -- such as crime scene details -- it responds with a 'memory and encoding related multifaceted electroencephalographic response.' Unlike polygraph testing that measures an individual's fear or getting caught in a lit by tracking relevant physiological markers, brain fingerprinting ostensibly measures brain waves emitted when information stored in the brain is recognized." (2005) Related as well is that:

New applications of fMRI that bridge cognitive science and law also have the potential to change approaches to truth verification and lie detection." (Illes and Racine, 2005)When individuals answer truthfully the fMRI will show "increased activity in visual and motor cortex." (Illes and Racine, 2005)

Illes and Racine state that:

the brain image represents unparalleled complexity -- from the specialized medical equipment needed to acquire a scan, to the array of parameters used to elicit activations and the statistical thresholds set to draw out meaningful patterns, to the expertise required for the objective interpretation of the maps themselves. Moreover, an absence of standards of practice in the laboratory (in fact, innovation and creativity still define the state-of-the-art in neuroimaging today) and the medicolegal setting creates another layer of complexity for drawing conclusions about behavior, responsibility and cognitive well-being (www.pubmedcentral.nih.gov/articlerender.fcgi?artid=1506750" Kulynych 1997; www.pubmedcentral.nih.gov/articlerender.fcgi?artid=1506750" Nelkin and Tancredi 1989) that will need to be penetrated with appropriately responsive ethical approaches." (2005)

The following chart lists the comparison of ethical, legal and social issues in genetics and functional neuroimaging."

Comparison of Ethical, Legal and Social Issues in Genetics and Functional Neuroimaging

ELSI variables

Gene hunting, Gene testing

Functional neuroimaging

In practice:

Risk of discrimination, stigma, coercion

Not at present, but growing concern exists for the evolution of the technology and expanding use.

Risk to privacy

Distributive justice

Yes, once the technology moves into mainstream clinical medicine.

Diagnostic uses

Emerging

Prediction

Emerging

Commercial use

Emerging; some limited availability already exists in the direct-to-consumer marketplace.

In research

Paradigmatic variables: Results subject to variability in test used

Potentially but not considered a significant risk.

Highly significant given variability in equipment, hypothesis-testing, stimulus design and approaches to data analysis.

Physiologic variables: Results subject to physiologic and day-to-day variations.

Highly significant given fluctuations, for example, in blood flow, mood, and gender-related physiology.

Investigator variables: Results subject to variability of interpretation.

No, but standards for testing are not widespread.

Highly significant, especially when interpretation of data interacts with individual social values and culture.

Global issues:

Biologization of personal thought.

Possibly in mental illness and neuro-degenerative disease.

Highly significant as complex thought becomes quantified and visualized on brain maps.

Source: (Illes and Racine, 2005)

Garland and Glimcher (2006) in the work entitled: "Cognitive Neuroscience and the Law" state that:

Advances in neuroscience now allow us to use physiological techniques to measure and assess mental states under a growing set of circumstances. The implication of this growing ability has not been lost on the western legal community." These authors relate the work on the prefrontal cortex conducted by Richard Davidson, a neuroscientist, who concluded that: "individuals with hypoactivation of certain regions of the prefrontal cortex may be deficient in the instantiation of goal directed behavior and in the overriding of more automatic responses. In particular...a lateral right-sided region (of the orbital frontal cortex) appears particularly responsive to punishments [2] (in normal subjects)." (Garland and Glimcher, 2006)

The work Bansal, Singh, Sreenivas, Pandey (2004) entitled: "Recent Advances in Lie Detection" states that: "In recent times the 'polygraph' test has earned a lot of popularity." (2004)

There has been a recent technological breakthrough with claims that it can be proven whether an individual is telling the truth of not and specifically the fMRK and Brain Fingerprinting. The MRI utilizes radio waves and a magnetic field that is strong in provision of pictures that are detailed of the individual's internal tissues and organs. Functional Magnetic Resonance Imaging (f-MRI) is a new use for MRI technology that already existed. The f-MRI is conducted with the patient, lying on a table with the head braced is asked to perform some specific task during the imaging. The area of the brain that is responsible for that specific task increases and results in a signal change in the image. The fMRI monitors the movement of blood and determines the areas of the brain activated by a specific task. Through mapping the signals fMRI monitors the blood's movement and is able to make a determination of which areas of the brain a specific task activates. The Blood oxygen level dependent fMRI makes a measurement of the brain activity that is linked with deception. "Activated areas of the human brain show localized increase in blood flow. Thus the oxygen content of venous blood increases during brain activation, resulting in increased MR signal intensity." (Bansal, Singh, Sreenivas, Pandey, 2004)

Daniel Langleben conducted testing using fMRI with 18 individuals who volunteered and states findings that:

sections of the brain that exercise a significant role in attention, and which monitor and control errors (the anterior cingulated gyrus and parts of the prefrontal and premotor cortex) were more active in the volunteers when they were lying than when they were telling the truth." (Bansal, Singh, Sreenivas, Pandey, 2004)

According to Langelben: "the brain's normal 'default' response, then lying would require increased brain activity in the regions involved in inhibition and control." (Bansal, Singh, Sreenivas, Pandey, 2004) Also reviewed in the work of Bansal, Singh, Sreenivas, and Pandy is the fact that 'brain fingerprinting' is the creation of Dr. Lawrence a. Farwell, and is a technology that is computer-based for identification of someone who committed a crime through measurement of responses of brain waves to pictures or words related to crime. The basis of 'brain fingerprinting' is that the individual who has guilty will have sequences of the crime details stored in their brain whereas the innocent person would not.

The brain fingerprinting test involves the individual being attached to sensors on a headband that make measurement of the responses of electrical brain waves. There are three types of stimuli used, which are:

1) Targets;

2) Irrelevant; and 3) Probes.

These are used "in the form of words, pictures, or sounds..." which a computer presents for a second or even a partial second. Incoming stimulus, if it is worth noting, results in a P-300, which is an electrical brain response. The P-300 is part of a MERMER or a memory and encoding related multifaceted electroencephalographic response, which is a larger brain response.

Originally event related potentials (ERP) was the method used for studying brain activity information processing. The limitation of the ERP is that it causes elimination of all patterns that are complex and results in the meaningful signals also being lost. The multifaceted electroencephalographic response analysis or MERA was developed due to the limitation of the ERP. Farwell found that incorporation of this technique resulted in the elicitation of MERMER when the individual being tested recognized a stimulus that was incoming. While fMRI is still in new stages and science recommends expansion in research for validity in results from an established base for which to compare and to corroborate pattern prediction in truth telling and deception the legal area however, are able to use the results of brain fingerprinting as evidence in reaching guilty or not guilty verdicts in court cases. Brain fingerprinting gained a legal victory in the case of Terry Harington who was acquitted because "Brain Fingerprinting patterns did not match with the crime scene evidence." (Bansal, Singh, Sreenivas, Pandey, 2004)

The work of Dr. Farwell has investigated the scientific validity of 'brain fingerprinting' and the P300 electrical brain wave response is stated to be "widely known and accepted in the scientific community and there have been hundreds of studies conducted and articles published on it over the past thirty years." (Interview with Dr. Farwell, nd) Dr. Farwell claims an accuracy rate of 100% for brain fingerprinting tests stating that in 200 test total there "have been no false positives or false negatives in instances where a determination of 'information present' or 'information absent' was made." (Taylor, 2007)

Criticisms of brain fingerprinting testing are those stated as follows:

The mental capacity of individuals to retain information during the crime or prior to the test (examples: intoxication, drugs, under stress influences);

How memories are formed during crimes is not understood;

Individuals could attempt to deceive the brain fingerprinting test;

Bias could easily find its way into the test and the test results through the decision process exercised by the test administrator in selecting the specific stimuli;

Brain fingerprinting raises questions relating to civil liberties;

According to Dr. Farwell in response to these questions of critics in the case of the second question, the brain is always recording information whether the individual is aware of the fact or not. Furthermore, Dr. Farwell relates that in one case the subject "was on alcohol and drugs, and in a highly emotionally-charged states at the time of the murder [the victim in that case]..." And the results were still "excellent." 57 in relation to attempted to deceive the brain fingerprinting test, since the brain fingerprinting is not a determination of truth or falsehood and instead "for the presence of certain information in their brain...BF cannot be 'beaten' or 'fooled by relaxed well-prepared criminals." (Taylor, 2007) Stated is that: "Because the BF test is objective and measures a brain response at the moment of recognition, it is equally effective when given to a normal mentally stable individual as it is when given to a sociopath, hardened criminal or pathological liar." (Taylor, 2007) in response to critics on the basis of civil liberties, Dr. Farwell states that that brain fingerprinting: "serves the cause of human rights by giving an innocent individual the means to scientifically prove his or her innocence...[it would be a] "...human rights violation to deny access to testing to anyone who is accused of a crime." (Taylor, 2007)

The work of Davachi, Mitchell, and Wagner (2003) entitled: "Multiple Route to Memory: Distinct Medial Temporal Lobe Processes Build Item and Source Memories" state that in the function of memory in the brain "a central function of memory is to permit an organism to distinguish between stimuli that have been previously encountered and those that are novel." These authors conducted a study using "event-related functional MRI to examine the relation between activation in distinct medial temporal lobe subregions during memory formation and the ability (1) to later recognize an item as previously encountered (item recognition) and (2) to later recollect specific contextual details about the prior encounter (source recollection)." The following illustration shows the encoding conditions performed during fMRI scanning.

Encoding conditions performed during fMRI scanning

Source: (Davachi, Mitchell, and Wagner, 2003)

The Washington Post reports that: "The Siemens Magnetom Trio at the University of Pennsylvania is a 10-foot-tall, 14-ton "functional magnetic resonance imaging" fMRI machine. This machine is believed to be the "most formidable lie detector ever built." (2006)

II. Legal and Ethical Implications

Neuroscientific techniques used specifically for identification of deception is an area of technology that is increasingly becoming more sophisticated. There is great hope that that brain scanners will be able to make accurate determinations when an individual is being willfully deceptive. The problem is that brain scans when conducted against the individual wishes are done so in violation of the Fifth amendments protections against self-incrimination. These issues were addressed by the U.S. Supreme Court in U.S. v. Scheffer (U.S. v. Scheffer 523 U.S. 303 (1998) which was a case "in which use of polygraph-based lie detection was barred in court-martial proceedings (most states, but not all also bar or restrict use of polygraph evidence in court proceedings)." In the case of Scheffer, the Supreme Court upheld a bar on introducing polygraph evidence stating that barring this was constitution. In the case of Scheffer, the defendant wanted to introduce polygraph evidence for the purpose of his defense.

The work of Greeley (2004) makes a review pertaining to legal issues relating that there are cases that ethical models for brain imaging might possibly diverge from genetics. The work of Raine et al. (1994) showed that in the brains of committed murders, there is poor functioning in the prefrontal cortex of the brain, which is responsible for controlling impulses. These PET (MRIs) have been used for making the argument of a defendant being predisposed through biological factors to commission of crimes and that the defendant should, for that reason, not be sentenced to death. Failure to produce brain scans resulted in reversal of a conviction of homicide in the case People v. Jones. (Illes and Racine, 2006) it is critical that "models for minimizing harm that may results from false positive and inappropriate attributions of cause-and-effect to otherwise correlative results are critical. Apart from genetic testing, brain maps can be readily portrayed as iconic proof of pathology to people at any level of literacy." (Illes and Racine, 2006) Imaging the brain required specialized medical equipment as well as "the array of parameters used to elicit activations and the statistical thresholds set to draw out meaningful patterns...[as well as] "...the expertise required fro the objective interpretation of the maps themselves." (Illes and Racine, 2006) Finally, the fact that there are no existing standards of laboratory practice since "innovation and creativity still define the state-of-the-art in neuroimaging today" as well as "medicolegal setting" which makes the process even more complex makes it very difficult to draw conclusions relating to "...behavior, responsibility and cognitive well-being." (Illes and Racine, 2006)

Scientists have cautioned concerning ethical issues relating to neuroimaging, which affirms the need for establishing ethical approaches in this area. The work of Winslade and Rockwell (2002) states: "Humans are forever prone to make premature and presumptuous claims of new knowledge.... One may think that brain imagery will reveal mysteries of the human mind. But it may only help us gradually comprehend the organic, chemical and physiological features of the brain rather than provide the keys to unlock the secrets of human behavior and motivation." (Illes and Racine, 2006) Cultural issues must also be considered in that different meanings attached to different 'things' or 'beliefs' within a culture might be dramatically different than the meanings attached to the same word in another culture thereby rendering neuroimaging inept if these cultural issues are not addressed. The specific problem that exists is in the area of interpretation, which is influenced by cultural and religious perspectives that are greatly differential from one societal element to another. The work of Illes and Racine (2006) states as follows:

With the existence of many views about mind and brain, neuroethics will have to foster discussions among neuroscientists whose methods may vary and interpretation of results differ. These discussions will have extend to include meaningful dialogue with scholars in the humanities about concepts like morality, moral judgments and moral emotions -- concepts in need of critical appraisal before we can seriously investigate their neural correlates. Open dialogue with the public is no less necessary given that different cultural and religious perspectives subject findings to different interpretations and ethical boundaries. Responsible dissemination of information through the media and public education are also essential in closing the gap between scientists and concerned citizens, especially as the complexity and abstractness of results increase. Interpretation necessitates creative human imagination and conscious awareness of scientific and cultural presuppositions. Hence, the new generation of neuroethicists must be committed to openly examining the epistemological limits of imagery (Racine and Illes 2004), interdisciplinary appraisal, and public perspectives on these issues." (2006)

The Committee on Science and Law states that these neurodiagnostic techniques are "still a subject of much research and some controversy." (Are Your Thoughts Your own? Neuroprivacy and the Legal Implications of Brain Imaging, 2005) Questions that arise include the following:

What impact does the applied technique have on the results?

Do the results differ when different MRI modalities are being used?

Is the study conducted by a psychiatrist, a neurologist or a radiologist?

Who is interpreting the study?

How many subjects are enrolled in the studies?

What particular machine is being used?

Are there any case controls?

What standards are being developed or being used? (Committee on Science and Law, 2005)

The Director of Neurology at the University of Iowa, Antonio Damasio MD states:

t]he issue is what we can expect from functional imaging -- namely, from PET or fMRI... For example, no one need have any doubt that we can now identify a lesion caused by a stroke, tumor, surgical incision, or head injury, and that we can localize it and intelligently combine that information with clinical data. This enables us to make very accurate diagnoses and even predictions about how the person is likely to evolve. And I don't have any problem with that being brought in court.... Most of the imaging issues that people are very worried about have to do with functional imaging in an experimental setting. Here the interpretation is tied to the hypothesis, to the design, and to the theory that are behind a given study and to analyses that vary from laboratory to laboratory. This is the kind of information that we have to be very cautious about and that I would not find appropriate to introduce in court at this point." (Committee on Science and Law, 2005)

The work of Lou Marano entitled: "Ethics and Mapping the Brain" published by the Center for Cognitive Liberty & Ethics states that three professors from the University of Pennsylvania are struggling with the questions of ethics surround technologies that map the brain. The ethical concerns include those as follows:

1) What are the legal implications for using brain mapping for purposes of employee screening?

2) There is a need for some agreement regarding the admissibility of this type of evidence in court;

3) Must consent be given to this sort of brain mapping/testing?

4) Will everyone have equal access to this technology?

5) Rules must be established for testing children. (Marano, 2003)

The work of Spence et al. (2001) states findings of "greater activity in the bilateral ventrolateral prefront cortices during lying." The work of Lee et al. (2002) was conducted to measure "malingering" or internationally false and fraudulent simulation or exaggeration of physical or mental disease." Findings in this study identified "four principle regions of brain activation during deception" which are those of:

1) Prefrontal and frontal;

2) Parietal;

3) Temporal; and 4) Sub-cortical." (Spence, et al., 2001)

The work of Langleben et al. (2002) states findings that "there is a neurophysiological difference between deception and truth at the brain activation level that can be detected with fMRI." (2002)

The work of Ganis et al. (2003) conducted a study of two types of deception. Those two deception types were:

1) Memorized lies that fit into a coherent story, on one hand and 2) Spontaneous isolated lies, on the others." (2003)

The study asked 10 participants questions about work of vacation experiences and were asked to give three kinds of answers:

1) False answer based on the alternative scenario previously memorized;

2) Spontaneous lies without regard to whether the answers were consistent or formed a coherent story; and 3) Truthful ones. (Ganis, et al. 2003)

Findings from the study state that "a number of brain regions were activated more strongly" in the case of spontaneous lies that when "they produced memorized lies. Findings related to memorized lies showed that "only the right anterior middle frontal gyrus activated more strongly." (Ganis, et al., 2003)

Legal implications for advances in neuroscience include those as follows:

understanding how cognitive processes of key legal participants (such as judges and jurors) influence trial outcomes, discovering whether various assumptions underlying the evidentiary rules (such as one suggesting that "excited utterances" are less likely than average to be falsehoods) have any basis in fact, learning more about how people determine "just" punishments, anticipating how jurors may over-react to certain kinds of character evidence, determining the extent of injuries from accidents, improving our abilities to detect mental biases and prejudices that may affect the proper function of legal fact-finding and decision-making, and learning more about the limits of witness memories" (Mobbs, Lau, Jones and Frifth, 2007

Plausible Uses of Brain Imaging include the following:

Does the defendant exhibit any neurological damage?

Do the brain abnormalities fit with the nature of the crime?

Is the defendant faking an illness?

Is the defendant lying about the crime?

What is the likelihood of future transgressions? (Mobbs, Lau, Jones and Frifth, 2007)

Ethical questions that must be answered by society and the legal community include those as follows:

Does the defendant exhibit any neurological damage?

Do the brain abnormalities fit with the nature of the crime?