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Event considers ethics of brain scans


April 10, 2007

The advantages and dangers of emerging technologies that may accurately read individuals' innermost thoughts and memories through brain scanning is the subject of a spring conference conducted by ASU's Sandra Day O'Connor College of Law.

“The Law and Ethics of Brain Scanning: The Next Big Thing Coming Soon to a Courtroom Near You?” will explore the societal and ethical impacts of emerging technologies, such as functional MRI (fMRI) and brain fingerprinting.

The program, co-sponsored by the College's Center for the Study of Law, Science and Technology and the Joan and David Lincoln Center for Applied Ethics at ASU, is scheduled from 9 a.m. to 5 p.m., April 13, at the Sandra Day O'Connor U.S. Courthouse, located at 401 W. Washington St., Phoenix. The event is free and open to the public.

Neuroimaging technologies measure changes in blood flow in the brain in response to specific questions and stimuli, rather than body changes used by “notoriously unreliable” polygraph tests, says Gary Marchant, executive director of the Law, Science and Technology center.

“Brain fingerprinting” could be capable of detecting whether people have previously seen images by monitoring their brains' instantaneous response to being shown objects, before they've made conscious decisions about whether they've seen the images before. An attorney could use such a test to demonstrate whether a defendant had been present at a crime scene.

Some brain-scanning techniques can detect brain injuries and abnormalities that may make an individual less able to control or understand his or her actions, according to several studies. Already, attorneys for several criminal defendants have introduced such evidence to argue their clients' diminished competence and culpability.

“For now, there's just been a trickling of cases,” Marchant says. “But it could quickly become an avalanche, and lawyers have to be ready to deal with it.”

But he also points out concerns about its use, similar to those raised in the 2002 film “Minority Report,” in which police used neurological screening to arrest criminals before they committed crimes. Another concern, triggering fears of Big Brother, may be manufacturers and politicians using brain scanning in neuromarketing campaigns to tailor the effectiveness of their advertising messages, he says.

Marchant calls it a “new order of intrusiveness.”

“The brain is the last refuge we have of our own private selves,” he says. “Everything we say and do is tracked down and recorded, but what goes on in our brains is private domain.”

The conference includes several local and national experts, among them Daniel Langleben, an assistant professor of psychiatry at the University of Pennsylvania School of Medicine. Langleben is a brain-scanning researcher who praises the technology's accuracy, while admitting the jury is still out on when it will be accepted in courtrooms.

“Is there a formalized, cut-in-stone test that has been validated, run through clinical trials in thousands of people in many countries and in many languages?” he asks. “No. It will take time for it to be generally accepted.”

Other conference speakers and topics include:

• William Uttal, professor emeritus of engineering at ASU, “Brain Imaging and the Mind: Pseudoscience or Science?”

• John J.B. Allen, distinguished professor, Department of Psychology, University of Arizona, “Overview of Brain Scanning Technologies.”

• Archie A. Alexander, legislative fellow, University of Houston Law Center, Health Law & Policy Institute, “Legal Admissibility of Neurological Lie Detection Evidence.”

• Larry Cohen, of counsel, Meyer Hendricks, Phoenix, “Demonstrating Brain Injuries with Brain Scanning.”

• Owen D. Jones, professor, Vanderbilt University Law School and Department of Biologic Sciences, “Harm and Punishment: An fMRI Experiment.”

• James H. Fallon, professor, Department of Psychiatry and Human Behavior, University of California-Irvine, “Through a Glass Darkly: Transdisciplinary Brain Imaging Studies to Predict and Explain Abnormal Adolescent Behavior.”

• Emily Murphy, post-doctoral fellow, Stanford Center for Biomedical Ethics, “Authenticity, Bluffing, and the Privacy of Human Thought: Ethical Issues in Brain Scanning.”

• Stacey Tovino, assistant professor, Hamline University School of Law, “Health, Disability, and Employment Law Implications of MRI.”

For more information about the conference, which also is being supported by the U.S. District Court in Phoenix and the Steele Foundation, and to pre-register, go to www.law.asu.edu/brainscanning or call (480) 965-2465.