Technology has the potential to transform how evidence and knowledge are used in the courtroom. Much of what we know about someone’s thoughts or emotions comes from what he or she says.
However, what if a judge and jurors were able to see inside someone’s brain in the courtroom? What seems like far off science fiction may be closer than one would think.
Function magnetic resonance imaging (fMRI) has the capability to map brain activity and give us a first hand view inside the brain to see how processes and pathways react during various sensations and feelings. This flourishing research is leading science down a road where there is the possibility of obtaining an objective assessment of the very subjective experience of pain. What if this research would be able to show just how much pain someone is in? Researchers found an interpretable pattern in regions of the brain that show increased activity when one is experiencing physical pain. This marker is able to distinguish physical pain from other sensations and thus can measure the actual pain experienced. If reliable, this technology will be powerful evidence for plaintiffs’ lawyers to demonstrate the presence of pain or for defense lawyers to mount an argument of malingering.
What would the ability to measure pain mean as evidence in the courtroom? One primary aspect of a personal injury case involves proving that the injury resulted in damages such as pain and suffering. However, pain and suffering are different from person to person, and this finding is often based purely on the victim’s self-report. Because many personal injury cases settle outside of court, it is difficult to understand the prevalence of brain scans in civil law. However, it has proved to be an effective methodology. Take, for example, neuroimaging company Millennium Magnetic Technologies (MMT) which uses an fMRI to detect and map pain. The company’s first ten customers all settled their cases outside of court. Because it is so difficult to assess damages for pain and suffering, this emerging science could bring a new efficiency to civil cases by placing an objective assessment on these types of damages.
Brain scans could even go beyond a retrospective use. Research shows brain scans could help predict whether a criminal is likely to reoffend a given crime if released from jail. Researchers found that, “[t]he odds that an offender with relatively low anterior cingulate activity would be rearrested were approximately double that of an offender with high activity in this region.” What would this mean for our justice system based on punishing people for past actions rather than the likelihood of future actions? In addition, it could transform how our parole system assesses the risk of recidivism.
Because this technology is still developing, there are many issues and questions that must be sorted out before brain scans are considered reliable evidence in court. First, the technology is new and still in the beginning stages of testing. Neuroscientists disagree on the reliability of the brain scans to assess pain. There are also ways to cheat the system. If someone wanted to lie to show pain when it didn’t exist, the person could self-inflict pain such as biting his or her tongue hard while having the brain scan and the evidence in court from the brain scan would show that the person is in pain.
Second, because the technology is relatively new, it is also very expensive. A scan can cost upwards of $6,000, meaning that many people could not afford to have these scans for the purpose of litigation. Is there an issue of fairness when the technology could only be used in some cases?
Finally, one must look to the effect of the brain scans on the jury. Even if the argument is not compelling, most people are likely to accept an argument if there is neuro-scientific evidence to support it. However, because tolerance for pain can be subjective, the prejudicial value of the scan could be high. Thus, these scans could be overly persuasive to jurors and cause the jury to discount the testimony of an otherwise truthful witness.
Many argue that mapping the brain is the next new frontier. Certainly, new technology can be transformational. “What could be more compelling than a view inside someone’s mind? And what could be more dangerous than an unreliable source of evidence that is over-interpreted as being reliable?” One question we must ask before allowing technology to determine one’s fate in a civil or criminal case is how confident we are that technology will ever be able to solve the mystery of the brain.