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The Brain Sciences in the Courtroom

Law Review Symposium Macon, Georgia October 21 – 22, 2010


A Symposium of the Mercer Law Review Co-Sponsored by the Institute of Continuing Legal Education in Georgia

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For available CLE information contact Nancy Terrill, Terrill_n@mercer.edu or 478.301.2204.


The Brain Sciences in the Courtroom Thursday, October 21 The Brickyard at Riverside 7:00 p.m.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Gala Dinner

Friday, October 22 Courtroom, Walter F. George School of Law, Mercer University 8:30 - 9:30 a.m.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Introduction and Overview Moderated by Judge Morris Hoffman “A Decade of Neurolaw - Where Has it Brought Us?”

Over the course of a decade, the combined discipline of Law and Neuroscience had accumulated significant scholarly momentum. This talk will provide a partial review of the areas attracting the most attention—for better and worse—and offer some suggestions and cautions for future work. Professor Oliver Goodenough

“Neuropsychiatry in the Courtroom” “Neuropsychiatry in the Courtroom” – The history of neuropsychiatry in the courtroom from the 19th century to the present (e.g., Lombardo, Hinckley) will be reviewed with an interest in drawing parallels to modern controversies. Neuropsychiatry is distinguished from clinical psychiatry by its emphasis on biological tests and explanations. Is there a role for neuropsychiatry in addressing sociopathy, sexual deviancy, and truth telling? Several modern examples will be discussed where imaging techniques were introduced as evidence regarding such matters. Dr. Richard Elliott

9:30-10:25 a.m.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Neuroscience and The Juvenile Moderated by Dr. Linda Hensel “The Teen Species”

That adolescent girls are more likely to be arrested for fighting (assault) than adolescent boys runs counter to the assumption of most people. Perhaps this statistic results from changing social/gender norms that have enabled increased physical aggression among girls, but it could also be the result of law enforcement acting on instantiated social/gender norms that make physical fighting among girls “un-ladylike.” There are many heated debates about the nature of sex and gender differences among males and females, of which this is just one. Here Dr. Abigail Baird presents a novel model of gender grounded in the neurobiology and neuroendocrinology of adolescence. This new model lends support to a number of conventional ideas about gender identity. It also provides new insights into why gender identity and biology often match, and the increasing numbers of ways in which they do not. This model also provides important insights regarding how to better understand, and in turn teach and motivate adolescents. Finally, the implications of this model will be considered within the context of juvenile justice policy and practice. Dr. Abigail Baird

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Friday, October 22 (cont’d.) “How (Some) Criminals Are Made: MAOA and Behavioral Control” Numerous studies have now shown that a deficit in a brain enzyme responsible for halting the transmission of certain brain chemicals long associated with aggressive behavior, combined with a history of abuse and neglect strongly predisposes some children (and later adults) to violent behavior. Professor Theodore Blumoff Comments: Judge Thomas Matthews

10:25–10:35 a.m.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Break 10:35–11:35 a.m.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Evidentiary Possibilities Moderated by Professor Stephen Morse “Fantasies of Visual Proof: Visual Memory Reconstruction via fMRI” Research on the neuroscientific reconstruction of visual memories may be understood not as a possible courtroom reality but as fantasy – an ideal object of the law’s desire for more certain visual proof. Visual memory reconstruction promises more than merely direct visual access to the facts; by enlisting mutually reinforcing forms of visual representation and visual knowledge as technology, artifact, and metaphor, it appeals to the law’s desire on multiple levels. Professor Neal Feigenson

“Brain Scans as ‘Truth Verification’: U.S. v. Semrau” In this 2010 decision, the district court judge conducted the nation’s first Daubert hearing on the admissibility of fMRI lie detection evidence. Although the court rightly excluded the particular evidence proffered, there remain a number of avenues by which the issue is likely to re-arise in different cases, involving different experimental conditions. This article uses the Semrau case to identify and to illustrate. Professor Francis Shen

11:35 a.m. –12:50 p.m.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Luncheon (invitation only) 1–2 p.m.. . . . . . . . . . . . . . . . . . . . . . . . . Evidentiary Considerations: Imaging and Admissibility “Race and Reason: An fMRI Study of Evidentiary Weight”

This presentation will describe an upcoming fMRI study examining the possible effect of a criminal defendant’s race on jurors’ evaluation of various items of evidence. Primary among the questions to be addressed is what, if anything, brain-imaging data can add to the ongoing debate about race and the criminal justice system. Professor Julie Seaman

“Serendipitous Timing: the Coincidental Emergence of the New Brain Science and the Advent of an Epistemological Approach to Determining the Admissibility of Expert Testimony” This is a survey of the recent trilogy on the admissibility of expert testimony in federal courts. Professor Edward J. Imwinkelried

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2–3 p.m.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . At the Edges of the New Brain Sciences Moderated by Professor Sarah Gerwig-Moore “The Implications of Neuroscience for Criminal Negligence Liability”

This presentation will critique the assumption that the negligent actor is impervious to influence or correction, arguing that it is increasingly at odds with evolving knowledge in the fields of cognitive psychology and cognitive neuroscience. The boundary between conscious and unconscious behavior is permeable and dynamic. Unconscious behavior can be shaped and trained, and legal institutions are in a unique position to shape norms that guide unconscious or subconscious behavior. Professor Susan Bandes

“Embodied Morality”: Physiology & Normativity in Dialogue Neuroimaging allows direct access to realms of physical experience that previously only could be guessed at by lawmakers. One of these important realms is pain. Neuroimaging can provide some information, albeit largely inferential and probabilistic, about the presence and intensity of pain. This may have a concrete pay off before neuroimaging work on the “sexier” legal questions of decision-making and responsibility. This payoff will be concrete in certain areas. For example, in disability law and in tort claims involving chronic pain, pain imaging may revise doctrinal standards and evidentiary practices. But in other areas, like torture, torture-murder, the death penalty, and abortion, legal disputes about pain will resist resolution about simple quantification. This program asserts that pain in these areas is a proxy for values that relate to or arise from human embodiment but cannot be resolved by physical measurement. Professor Amanda Pustilnik

3–3:10 p.m. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Break 3:10–3:50 p.m.. . . . . . . . . . . . . . . . . . . . . . . . . . . . The Use of Imaging Evidence in Capital Defenses Kathryn Kase and Emily C. Paavola, Moderated by Professor Tim Floyd 3:50–4:50 p.m.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Concluding Thoughts and Ruminations Moderated by Dean Gary J. Simson “Irrational Exuberance: Neuroscience in the Courts”

Many of the promises of neurosciences may be over-hyped. This presentation will explore the relationship between neuroscience and criminal responsibility, arguing that the enthusiasm of those who support the use of neuroscience in criminal cases cannot be sustained. Professor Stephen Morse

“Ten Legal Dissonances” This presentation will ferature failures of Bayesian reasoning (eye-witness ID, line-ups, forensic science and causation in general), in-group/out-group dissonances (cross-racial ID, peremptory challenges) and blaming/ punishment dissonances (felony murder rule, employment at will, harm subsuming fault). Judge Morris Hoffman

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Symposium Participants Professor Susan Bandes, University of Michi-

Professor of Law at the University of California, Davis, School of Law. Professor Imwinkelried is the former chair of the Evidence Section of the American Association of Law Schools.

gan, J.D., is a Distinguished Research Professor of Law at DePaul College of Law. Professor Bandes is a past fellow at the Gruter Institute for Law and Behavioral Research.

Kathryn M. Kase, St. Mary’s University School

Dr. Abigail Baird, Harvard University, Ph.D. in

of Law, J.D., is a senior staff attorney at Texas Defender Service, where she focuses on training and providing assistance to capital defense counsel at the trial level. She is a faculty member of the National Criminal Defense College and of NACDL’s Capital Voir Dire College.

developmental psychology, is an associate professor of psychology at Vassar College. Dr. Baird is a past fellow at the Gruter Institute for Law and Behavioral Research.

Professor Theodore Blumoff, Washington

University J.D., Ph.D., is professor of law at Mercer University School of Law and a regular contributor to The Gruter Institute and the Society for the Evolutionary Analysis of Law.

Judge Thomas Matthews is presiding Judge

Dr. Richard Elliott, University of Wisconsin

Professor Stephen Morse, Harvard University,

Medical School, M.D., is a professor of psychiatry at Mercer University School of Medicine. Dr. Elliott is also an adjunct professor at Mercer University School of Law.

J.D., Ph.D., is the Ferdinand Wakeman Hubbell Professor of Law and a professor of psychology and law in psychiatry at the University of Pennsylvania. Professor Morse is also the associate director of the Penn Center for Neuroscience and Society.

Professor Neal Feigenson, Harvard University,

Emily Paavola, Cornell Law School, J.D., is the

of the Juvenile Court in Bibb County, Georgia and an Adjunct Professor at Mercer University School of Law.

executive director of the Death Penalty Resource and Defense Center in Columbia, S. C., where she represents death-sentenced inmates in state post conviction proceedings and advocates for legislative reform aimed at addressing systemic flaws in the capital punishment process.

J.D., is professor of law at Quinnipiac University School of Law and a research affiliate in the Yale University Department of Psychology.

Professor Oliver Goodenough, University of

Pennsylvania, J.D., is a professor of law at Vermont Law School and a fellow at Harvard University, Berkman Center for Internet & Society, and at the Gruter Institute for Law and Behavioral Research.

Professor Amanda Pustilnik, Yale Law School,

J.D., is an assistant professor of law at the University of Maryland. Professor Pustilnik was also a visiting scholar at the University of Cambridge, Emmanuel College, in the History and Philosophy of Science Department.

Dr. Linda Hensel, University of Wisconsin, Ph.D., is chair and professor of the Biology Department at Mercer University. She is a former NIH-NIA postdoctoral fellow in genetics.

Professor Julie Seaman, Harvard University,

Judge Morris Hoffman, University of Colorado,

J.D., is an associate professor of law at Emory University Law School. Professor Seaman was awarded the Writing Prize for her article on law and biology by the Society for the Evolutionary Analysis of Law.

J.D., was appointed to the Denver District Court in December 1990. Judge Hoffman is also the judgein-residence at the Gruter Institute for Law and Behavioral Research and was nominated in 2002 to be a fellow at Stanford’s Center for the Advanced Study in the Behavioral Sciences. He is currently a member of the Network on Decision-making and of the MacArthur Foundation’s Law and Neuroscience Project.

Professor Francis X. Shen, Harvard University,

J.D., Ph.D., is a research fellow in the MacArthur Foundation Law and Neuroscience Project and a visiting scholar at Vanderbilt University Law School. Professor Shen was also a lecturer & assistant director of undergraduate studies with the Harvard University Department of Government.

Professor Edward J. Imwinkelried, University of San Francisco, J.D., is the Edward L. Barrett, Jr.

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Mercer Law Review The Mercer Law Review was founded in 1949 and is the oldest continually published law review in Georgia. Since its inception, the Mercer Law Review has served as an invaluable aid to practitioners and has provided a great service to the academic community through its publication of scholarly articles and its annual surveys of Georgia and Eleventh Circuit law. Each four-book volume of the Mercer Law Review is edited and published by students of Mercer University’s Walter F. George School of Law. The Annual Survey of Georgia Law reviews noteworthy opinions of the Georgia appellate courts decided in the preceding year. This is one of the most widely read books published by the Mercer Law Review because it provides practitioners with a concise overview of developments in the law for major practice areas. The Lead Articles Edition contains selected transcripts and related articles from each annual symposium hosted by the Mercer Law Review. The Articles Edition is a collection of articles selected for their timeliness and contribution to developing legal scholarship. Finally, the Eleventh Circuit Survey examines major developments in federal law by discussing noteworthy decisions of the United States Supreme Court, the United States Court of Appeals for the Eleventh Circuit, and various district courts within the Eleventh Circuit.

Mercer Law Review Board of Editors Editor in Chief. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Bowen Reichert Senior Managing Editor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Cassidy Flake Managing Editor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Adie Bershinsky Managing Editor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Jody Sellers Georgia Survey Editor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Stephen Floyd Lead Articles Editor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Courtney Ferrell Eleventh Circuit Survey Editor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Jeff Costolnik Articles Editor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Hayley Strong Student Writing Editor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Corrie Holton Administrative Editor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Whitney Johnson

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About Mercer Law School

The educational philosophy at Mercer University’s Walter F. George School of Law is based on a broadly shared commitment to prepare students for the high-quality practice of law in a dayto-day learning environment that is both strongly supportive and consistently professional. Its innovative Woodruff Curriculum—which focuses on ethics and practical skills amid small class sizes—earned the Gambrell Professionalism Award from the American Bar Association for its “depth of excellence.” With an enrollment of about 440 students, Mercer Law School is nationally recognized for its exceptional programs in legal writing, moot court, public interest, and ethics and professionalism. For more information about Mercer Law School, visit www.law.mercer.edu.

The Brain Sciences in the Courtroom | Mercer Law Review Symposium 1021 Georgia Ave. | Macon, GA 31207 | www.law.mercer.edu

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