Through a Scanner Darkly: The Use of fMRI as Evidence of Mens Rea

Article excerpt

MR. DE BANATE:

Good evening. Welcome and thank you for coming to the Journal of Law & Health's last speaker series event this year. My name is Fil de Banate [and] with Adam Saurwein, we serve as the editors-in-chief of the Journal. Last week we hosted an event focused on health care policy. Tonight we are pleased to host an event exploring fMRI and its legal significance.

Although [neuroimaging] is still an emerging technology, it has proven to be very consequential in at least one situation. In September 2008, the New York Times reported that a court in India allowed the use of brain scan images in a criminal case, which ultimately led to the conviction of an Indian woman accused of poisoning her fiance. To this day, the Indian woman maintains her innocence. (1) Hank Greely, a bioethicist at Stanford Law School and a colleague of our speakers, commented on the verdict, [characterizing it as] "both interesting and disturbing." (2) He also wrote in the American Journal of Law and Medicine the following:

   If brain scans are widely adopted, the legal issues alone are
   enormous, implicating at least the 1st, 4th, 5th, 6th, 7th and 14th
   Amendments to the U.S. Constitution. At the same time, the
   potential benefits to society of such a technology, if used well,
   could be at least equally large. (3)

Tonight, our speakers who are, as I said, Mr. Greely's colleagues, will present on this topic, but it will be more focused [on] evidentiary issues.... Adam will now present our speakers.

MR. SAURWEIN:

The Journal of Law and Health pulled some strings this week to welcome our guests with a little lake-effect snow.

Prior to joining Stanford, Teneille Brown practiced law for two years at Latham & Watkins in Washington, D.C., where she represented early-stage pharmaceutical device companies. Brown received her undergraduate degree in history and sociology of science at the University of Pennsylvania with a concentration in bioethics. While at Penn, she wrote an honors thesis on the ethics of elective cosmetic surgery and conducted HIV clinical research. She also conducted research at Penn Bioethics Center and drafted a bill on genetic testing informed consent. Brown graduated from the University of Michigan Law School focusing on bioethics in medicine and the law. She assisted in the creation of the Pediatric Advocacy Initiative, a legal clinic that offers free services to patients. Teneille Brown is a postdoctoral fellow at the Stanford Center for Biomedical Ethics, a fellow at the Center for Law & Biosciences and a research fellow at the MacArthur Foundation Law and Neurosciences Project. Her academic work focuses on the intersection of behavior, biology in the law with particular interest in evidentiary regulatory issues surrounding genetics and neuroscience.

Dr. Emily Murphy is a fellow at the Stanford Law School Center for Law & Biosciences and a research fellow on the MacArthur Foundation Law and Neuroscience Project based at the University of California, Santa Barbara. Murphy's current research focuses on issues surrounding the application of neuroimaging--of neuroscience and neuroimaging technology in criminal law and civil law, the effect of neuroimaging evidence on individual concepts of the agency and designing hypothesis-driven neuroimaging work that can directly inform legal or policy-based challenges. Murphy graduated from Harvard University and completed her doctoral work in the Department of Experimental Psychology at the University of Cambridge while on a Gates Cambridge scholarship. Her doctoral research examines neural and neurochemical bases of impulsivity and behavioral flexibility.

Join me in welcoming our guests.

MS. MURPHY:

Thank you so much for having us here today. It is interesting to see snow, as we're from California now. You'll forgive us if we're slightly casual in our presentation style. …