Panel discusses neuroscience in the courts at Stanford Law School

Four professors joined actor Alan Alda on the Stanford campus to discuss cognitive ability and incarceration at the Oct. 2 panel, "Brains on Trial."

“Studies show that prison leads to crime,” said Silvia Bunge, an associate professor of psychology at UC-Berkeley. Noting that 18-year-old brains are still developing, she added, “If you take a half-baked brain and put it into prison, you’re not getting the best results. A teen put into prison is much more likely to repeat, whereas a teen put into an educational program is much more likely to rehabilitate.”

Bunge (pronounced boon-GAY) studies the prefrontal cortex: how it controls volition and behavior as well as reasoning. She joined Stanford Law Professor Hank Greely, psychology Professor Anthony Wagner and biology Professor Robert Sapolsky.

The panel was moderated by Alda, who hosted a two-hour PBS television series of the same title. The series examines advances in neuro-imaging and how they play out in the court system. The Stanford Center for Law and the Biosciences and the Stanford Interdisciplinary Group on Neuroscience and Society hosted the event at the Stanford Law School.

Alda played clips from the series, including a bit in which he removes a ring from a drawer, then lies about his deed in a functional magnetic resonance imaging (fMRI) machine. The results suggested that the machine could tell he was lying, but the panelists were skeptical.

Wagner said that some studies have shown that fMRI can indicate when an individual reacts with emotion to a question, but the situations are too manufactured to have any real value. “There are no real-world stakes,” he said. He added that there are many reasons the fMRI can falsely record a lie: memory can take many forms, he said, some of it conscious, some unconscious. People can “recognize” the face of someone they’ve never met. And research shows some people can learn to beat the machine.

Before courts can use such images, he said, researchers need to conduct longitudinal studies of many real court cases. If hard evidence such as DNA shows guilt, and if fMRI images correlate, he said, then we can be more confident that the scans can pick up a falsehood.

Greely said that U.S. judges so far have refused to introduce evidence of brain scans, but a judge in India permitted it, and the defendants were found guilty in part because of the images.

“Even if the science isn’t good enough, if someone thinks it’s good enough, it can be used against you,” he cautioned.

Alda asked the panelists whether recent advances in reading brain activity should cause the legal system to treat defendants differently. People who were deprived or abused as children have less ability to react well in stressful situations, he noted. Should judges reduce sentences for people whose brain scans show damage? 

The panelists agreed that prison isn’t just about punishment — dangerous people need to be prevented from causing more crime. “If the car’s brake is not working, you ought to get it off the road,” opined Sapolsky.

Bunge added that neuro-imaging may help determine whether a prisoner is ready to be released. “You might start to see changes in someone’s brain,” she said.

She also spoke in favor of rehabilitation.

“It seems rehabilitation is a bad word," she said. "The thinking is it doesn’t work.” But she believes the justice system gave up on it too soon.

“Brain plasticity continues throughout life,” she argued. “You can shape the brain and see changes.”

She cited scans she and colleagues took of law graduates before and after they studied for the LSAT. The later images showed more neural connections.

“In some cases damage is irreparable,” she acknowledged, “but we don’t know the limits.”

Mandy Erickson writes frequently for the graduate school of education.

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This story was revised on Oct. 8 to reflect a change in Silvia Bunge's plans. After the story was first published, Bunge informed the Stanford Graduate School of Education that she would no longer be joining its faculty next year.

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This story was corrected on Oct. 4. Bunge said that neuro-imaging may help to determine whether a prisoner should be released. She did not say that it may be able to to prevent violence.