Law and the Brain

Article excerpt

Law and the Brain, by Semir Zeki and Oliver Goodenough, (New York, NY: Oxford University Press, 2006), 271 pp., $59.50.

According to a popular television show, "Space is the final frontier" (Star Trek 1966-present). Before the fantasy of television, a variety of terrestrial "final frontiers" such as Alaska, Antarctica, and the deep seas beckoned intrepid explorers. The notion of a "final frontier" conjures up images of bold people pursuing larger than life challenges. Society is the ultimate beneficiary of these individual acts of audacity.

The mental image of the explorer rarely extends to the staid discoveries of academicians. Cloistered safely in their offices and confronting nothing more threatening than internecine academic politics, the intellectual probing of academicians lacks the sense of danger faced by traditional explorers. However, the influence of philosophers and scientists can be just as epochal as an explorer who unearths a long lost Egyptian tomb.

The authors of "Law and the Brain" clearly believe a seismic event is near in which science triumphs the antiquated legal system. Standing on the pinnacle of neuroscience research, the authors cast their gaze on the horizon and see a time when, ". . . the law itself will come under more intense scrutiny when neurobiologists begin to probe the brain's sense of justice." (p. xiv)

A more practical, albeit questionable claim, suggests, "It is quite possible that, in the very near future, brain-imaging techniques will replace finger-printing and lie-detector tests as reliable indices of identity and of the truthfulness of a witness's statement." It seems curious that "Law and the Brain" raises the specter of lie-detector tests as a measure of scientific credibility. Few technical advances have such a storied and controversial legal history. (http://en.wikipedia .org/wiki/Polygraph)

The history of the polygraph began early in the twentieth century. A number of technical advances improved the physiologic monitoring of subjects but limited scientific study, brash marketing tainted the polygraph's credibility. Nearly a hundred years after its introduction, and dozens of studies later, the polygraph still lacks evidence of significant validity. Despite its lack of accuracy, the polygraph is widely used in certain employment and forensic settings.

The legal profession has steadfastly maintained a distant and cool relationship with the polygraph. Extending from the brief 1923 opinion in U.S. v. Frye to the 1998 opinion in U.S. v. Scheffer, the polygraph proponents failed in their bids to achieve legal "respectability." As it stands now, relatively few courts admit polygraph evidence, and then only with significant limitations. If the forecasters in "Law and the Brain" tout polygraphs as emblematic of neuroscience's contributions, then the future will be one characterized by controversy and marginalization.

Some readers, particularly those with extensive medical-legal experience, may dismiss "Law and the Brain" for its sciencefiction like claims and philosophical musings. In a complex discussion of neuroeconomics, the author foresees a time when, "neural activity can be measured as rewards and punishments are varied to determine why most punishments fail. . . ." It seems hard to imagine a prisoner, defense attorney, and perhaps, Americans in general, accepting this Orwellian version of justice.

Some readers might also get trapped in a philosophical quagmire. …