Anthropology News Column
How Neuroscience Might Challenge Legal Anthropology
By Barbara Faedda (Columbia University).
Neurolaw is the study of the numerous applications of neuroscience in the legal system. With neuroscience increasingly entering into today’s legal debates, legal anthropologists should question their relationship to this new form of knowledge, and rethink how to intervene, as Carol Greenhouse puts it, “against the depersonalizing effects of law.” How might ethnographic intimacy, anthropological relativism, and respect for cultural differences deal with “laboratory oriented” neuroscientific analysis and technology?
A defendant’s or witness’s state of mind, as well as his or her beliefs, prejudices, and memory are all considered by the courts and in legal reasoning. There have been many studies done on the topic of memory in recent decades; both the neurosciences and anthropology have contributed to the sophisticated debate. This has sparked criticism, especially David Berliner’s warnings about the “danger of overextension” of the concept. Anthropologists are not the only ones who run the risk of an obsession with memory. In law, especially criminal law, the detection of deception and lies in remembered evidence is a crucial aspect of the proceedings. Nowadays the problem of the reliability of memory often addressed with data from neuroimaging, a technique that is used to provide many answers that legal reasoning is not always able to provide.
A decision by the Supreme Court of New Jersey in 2011 made some substantial changes to the instructions that judges give to juries in the state. The new instructions take into account research which demonstrated that human memory does not work like a video recording and thus is also the victim of a multiplicity of errors and distortions. These studies have established not only that eyewitnesses very often report misleading and inaccurate memories, despite their strong confidence in these memories, but also that (mis)information following the event itself contributes to the creation of false memories.
Further, how might anthropologists deal with neuroscience’s interest in issues like racism and discrimination? In October 2012, the Journal of Cognitive Neuroscience published the article “Amygdala Sensitivity to Race is Not Present in Childhood but Emerges over Adolescence”, the result of a series of neuroimaging experiments conducted on young people. Since previous experiments on adults showed that different perceptions of ‘race’ are associated with increased activity in the amygdala, scientists sought similarly different reactions to images of black and white faces in data from fMRIs of young people. But they found no differences in the brain activity of the amygdala in children in this study until they reach adolescence. At that stage, the amygdala’s activity in response to black faces may reflect an acquired cultural knowledge, as well as implicit and explicit stereotypes. The scientists’ hypothesis is in fact that “the increasing salience of race across development may shape the functional architecture of the amygdala.”
Neuroscience helps also in understanding the development of human brain. It is now generally accepted by the scientific community that the brain does not reach maturity in adolescence, but that some parts continue to grow until we are over twenty years of age. These studies led to the 2005 US Supreme Court decision in Roper v Simmons which abolished the death penalty for individuals under the age of 18. Neuroimaging studies have indeed shown that, due to the incomplete development of the frontal lobe, the brains of the teenagers rely more on the amygdala, at the base of the brain, in response to stressful stimuli. The acts controlled by the amygdala are characterized by impulsivity, emotionality, and often aggressiveness.
Nonetheless, there are those who don’t support the use of neuroscience and neuroimaging in their role as mitigators of punishment. Daniel A Martell, a neuroscientist who often comments on its legal applications, underlines that in no case is a defendant’s head in a scanner when she or he commits a crime, and what the jury needs to know is the mental state at the moment of the crime. There is no way to capture that information using functional Magnetic Resonance Imaging, and fMRIs cannot “read the mind.” They can certainly measure the changes in blood flow and oxygen, but the interpretation of these measurements is less obvious and one directional than we might think. Moreover, brain imaging is still fairly recent and many studies use focus samples that are too small and perhaps not truly representative of the diversity of brains, and of mental processes. In the light of Joseph Dumit’s research, anthropologists can play an important role, highlighting the interpretive and cultural stakes of legal applications of fMRI studies, and being, in Dumit’s words, “as aware as possible of the people who interpret, rephrase, and reframe the facts for us.” As Stephen Morse writes, “at present, neuroscience has little to contribute to more just and accurate criminal law decision-making concerning policy, doctrine, and individual case adjudication.”
Based on such studies, it seems that there is enough evidence to conduct an interdisciplinary debate. Anthropology can be a tool for reducing the distance between the real world and the lab, shining a spotlight on social norms and pressures, so that they can be studied from a fresh viewpoint. In legal anthropology, we need further deep reflection on issues such as individual responsibility, moral and legal reasoning, cooperation and social norms, compliance and violation, and memory and testimony. There’s no denying that the way in which we live and express our emotions has a direct connection with the social processes of sanctions and rewards: anthropology as a whole can also be instrumental in understanding the emotional response to elements of social control, especially now, when both neuroscience’s imaging tools and legal reasoning are not sufficient to capture the complex interactions between mind and action, social forces and individual responsibility.