November 24, 2008

Do We Want Neuroimaging In Court?

Or, more specifically: do we want psychiatrists to help judge other people based on pictures even less useful than a Rorschach?


The New Yorker  has an article about Kent Kiehl, a researcher who studies psychopaths using neuroimaging techniques; he has a mobile MRI scanner that he takes to prisons.

Brain imaging is rarely used in criminal trials (no reference, but I believe the number is <100.)  But when it is used, and it will be more used, it has fairly important effects not just on the case, but on society, e.g.,

  1. Ask any resident about the anatomic correlates of schizophrenia, and they inevitably mention widened sulci-- which isn't actually specific or useful.  What most residents don't know is that this "finding" was made real by the trial of John Hinckley Jr: the defense showed that the cortical atrophy and widened sulci was similar to the brains of schizophrenics (and neglected to mention it was similar to findings in a dozen other non-psychotic conditions.)  Hinckley was found NGRI, which means hospital, then free; because of this case, we now have  "guilty but mentally ill" which means hospital, then jail.
  2. Brain scans were also used in the (failed) attempt at banning violent video games, on the assertion that it caused patterns in the frontal lobe similar to clinically violent adolescents (never mind that "patterns" doesn't mean anything, let alone predict thought.) 
  3. We can't execute juveniles anymore (Roper v. Simmons) because of the evidence of ongoing myelination of neurons in the DFC in adolescents as they aged.  (Never mind that all the kids in this study were relatively homogeneous anyway, so differences are not to be expected; never mind that this evidence is a long way from saying they lack the ability to take moral responsibility; never mind that, oh, never mind.)  Not executing juveniles is a wonderful idea; not executing them because of a lack of myelin is dangerously absurd.  So if science discovers their brains are completely mature after all, then what?

These imaging techniques only tell you one story, and it's not even a very good story.  They cannot tell you the impact of other forces, including genetics, lifestyle habits, and even the effect of chronic thought patters on brain function or anatomy.

Neither are scans themselves showing what you think they are showing.  They are showing something (e.g. glucose utilization) that we interpret as function ("region is activated") which is then used to say, "the amygdala is involved in..."  You may as well say Nebraska is involved in. 

They are, in essence, a videotape of someone's house while it's raining, from which you are supposed to deduce based on the amount of water collecting on the second floor bedroom window, that he was unable to avoid masturbating at work.

Unfortunately, juries love videotapes.


But more importantly, forensic brain scans represent the worst kind of classism.  They say, essentially, that because your brain looks very similar to other brains, then you belong in that class; and you take on their other qualities.  They may be appropriate for scientific investigations-- as early clues directing further research, "hey, this is interesting, let's look over here from now on"-- but they have no place in the justice system.  I'd argue any association studies have no place in court, especially when they are read backwards ("because he has this, he is this.")

Social scientists are hoping that these anatomic associations to psychopathy will show it to be a mental illness just like any other.  Consider the quote from Jean Decety, a professor of social neuroscience at the University of Chicago:

"We still basically work out of a Biblical system of punishment--we don't consider, in most cases, to what extent the offender's actions were intentional or unintentional. But what neuroscience is showing us is that a great many crimes are committed out of compulsion--the offenders couldn't help it. Once that is clear, and science proves it, what will the justice system do?"

Not withstanding that nearly every single proposition in this paragraph is flawed, let's take it to its conclusion: he wants us to consider psychopathy the way we consider, say, bipolar.

Currently, psychopathy is considered an aggravating factor-- if you have it, it's worse for you.  This is opposite to bipolar, for example, which can be a mitigating factor.  (For example, the coming exemption from execution for "mental illness" won't include psychopathy.)  But take a step back: both psychopathy and bipolar are heuristics.  They both have about as much and as good anatomical and genetic evidence.  In other words, they are formally equivalent.  They shouldn't be considered any differently in court.  Right?  Well, don't get excited: society could just as easily decide that bipolar should become an aggravating factor.

And, importantly, society--psychiatry-- can then change its mind every ten years or so.

Do you want to live in a world where the criminality of an act-- the culpability of a person-- is based essentially on the moral ADHD of a bunch of doctors with third hand understanding of  MRI results?  Strike that-- on a very select bunch of doctors who purport to speak for these other doctors, who claim to have the greatest grasp of the science, and who claim in complete and absolute seriousness to have the best understanding of the ethical progressivism of society-- better than lawyers or engineers or teachers or priests or anyone else-- ethics which they admit are constantly evolving-- but have thankfully, magically, and conveniently reached their culmination with today.  The end of history.   4000 years of ethics, useless; they got it all right with a grant from the NIH and a subscription to The New Yorker.

As if the science really mattered anyway:  no matter what those brain scans show, they'd find a way to make them support whatever ethical position is fashionable at the time.


This is one of your most co... (Below threshold)

November 24, 2008 5:59 PM | Posted by theskepticalshrink: | Reply

This is one of your most cogent posts yet. I'm sorry you're not publishing these arguments in medical, legal or social science journals, because on this blog you only reach fringe-dwellers and crackpots like me. ("If you're reading it, it's for you....")

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I've been going through you... (Below threshold)

November 24, 2008 7:01 PM | Posted by Shay: | Reply

I've been going through your archives, I just found your blog today while I was supposed to be doing work on my applications to Clinical Psych PhD programs. I highly enjoy your blog, and I've got you bookmarked. Your opinions, while maybe unpopular and probably misunderstood, hit home with me.

Keep fighting the good fight.

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Bookmarked? My good person,... (Below threshold)

November 24, 2008 10:06 PM | Posted, in reply to Shay's comment, by Fargo: | Reply

Bookmarked? My good person, you should look into using RSS feeds. Especially combining them with something like Google Reader.

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Thanks for this post -- I w... (Below threshold)

November 25, 2008 12:40 AM | Posted by Siderea: | Reply

Thanks for this post -- I was just in this argument elsewhere on the net, and it's nice to see someone working out ramification in a different area.

BTW, the myelination "evidence" link is broken, which is a bummer because I would like to know what article it pointed to.

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Shhh. This could seriously... (Below threshold)

November 25, 2008 3:26 AM | Posted by David: | Reply

Shhh. This could seriously screw up Daniel Amen's money-making franchise.

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<a href="http://hal.psych.u... (Below threshold)

November 25, 2008 6:19 AM | Posted, in reply to Siderea's comment, by Anonymous Hero: | Reply

Here is an alternate link for the paper.

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Great issue. And I believe ... (Below threshold)

November 25, 2008 9:38 AM | Posted by MedsVsTherapy: | Reply

Great issue. And I believe you are on the correct side of this one.

I have looked at all the pictures in these magazines (but really, I read them for the articles).

Here are the two main conclusions: either:
1. (in two parts)
1a. the hypothalamus is involved in this process (the typical finding if any sort of learning is being investigated;
1b. the hypothalamus and the amygdala are involved in this process (the typical finding if there is some notable emotional dimension, such as processing of fear (i.e., PTSD), or anxiety (i.e., OCD), or recognizing the "disgusting" face, along with the "learning") - thus all of these problems look the same;

2a. the frontal cortext is involved (even better if you can confidently say "pre-frontal cortex" which actually is not "pre" to any part of the frontal cortex, but is just part of it): the answer for anything requiring attention, judgment, thought, self-monitoring, restraint (thus, public speaking and resisting temptation look the same);
2b. the frontal cortext (or prefrontal cortex of your machine and fourier processing are good enough) should be involved but is not (the conclusion when studying psychopaths, etc.).

But that is about it. All of these various, qualitatively disparate phenomena look the same in the pictures. So, I believe, it is misleading to show relatively low prefrontal activity, and conclude that the finding indicates psychopathology.

Occasionally you see a study where the technology was good enough to pick up on activity in the nucleus accumbens, and those are generally studies where some sort of pleasure or emotional reward was involved.

That's abt it. After that, it is all guesswork. Many many brain observations have the same conclusion. This is like seeing callused hands and concluding that a person is a carpenter. Well, how many other jobs can lead to callused hands? Carpal tunnel - must be a secretary or word processor. Well, maybe not. Pipe fitter. Cable guy. Fisherman. Etc.

Plus, this area of research suffers the same way the spine/back pain research suffers: if you image the spine of any of us, we will have "lesions;" If you ONLY image back pain sufferers, you may conclude that the lesions indicate the problem. But what abt the rest of us, with no back pain, whom you did not image? Ya never know because ya did not image us as well. In the handful of studies where imaging has been done on no-back-pain grp as well as back-pain-group, ya realize: some of back pain grp have no lesion, and some of no-back-pain have lesion.

I believe there is a lot to be done before this brain imaging stuff can actually reveal the things that a jury might believe it reveals.

One day, I was able to hear a colleague who is a psychiatrist, a technology geek, and a computer programmer geek, give a great presentation on how the mri works to give you such pretty pictures. This will pretty much end the belief that you are just taking some snapshot.

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Confidence level about the ... (Below threshold)

November 25, 2008 9:51 AM | Posted by marcia (2): | Reply

Confidence level about the same for phrenology.

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Thanks for this. With all o... (Below threshold)

November 25, 2008 10:33 AM | Posted by Sally: | Reply

Thanks for this. With all of the ballyhoo about this crap out there sometimes I fear there really is evidence I haven't seen that this stuff is real.

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Great post. Such horrors ar... (Below threshold)

November 25, 2008 1:53 PM | Posted by S.Gerund Bollard: | Reply

Great post. Such horrors are evoked by the image of some eager doc toting around a portable fMRI. Immediately brings to mind another traveling neurologist cum huckster -- Walter Freeman.

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I reread the New Yorker<... (Below threshold)

November 25, 2008 3:38 PM | Posted by Per Jørgensen: | Reply

I reread the New Yorker article again, and I still can't see how it, or magazine for that matter, promotes the argument you're counterarguing.

There are two quotes raising the question at the very bottom of the article -- hardly enough to declare the New Yorker guilty of wanting to donate 4,000 years of ethics down the sewer system.

I'm not disagreeing with your argument. I'm saying the New Yorker is not the problem. Mother Jones, maybe, but not the New Yorker.

Alone's response: Sorry, that's another example of my bad writing. That wasn't my point at all. The New Yorker wasn't arguing for (or against) neuroimaging in court, they were just profiling Kiehl who does that kind of work. I was only using the article as a launching pad for why I think neuroimaging, while it is obviously useful clinically, shouldn't be allowed in court. My offhand comment about 4000 years of ethics and the New Yorker was about people's tendency to derive ethical notions from quasi-intellectual, but not rigorous sources (e.g. the new yorker). So in my example, a scientist would, in fact, have an ethical position already (supported by those things that match his inclination) and then pretend that these ethical ideas are what science has discovered.

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I would actually like to he... (Below threshold)

November 25, 2008 10:32 PM | Posted by Agnes Davis: | Reply

I would actually like to hear more about your thoughts on the video game and brain scanning studies. I am somewhat familiar with the 2005 Matthews and Kronenberger research that the Killology group likes to toss around. (My rant on Dr. David Grossman, himself, is for another time.) But I guess I just wasn't around when this was new and being actively debated.
Reading that particular research on my own, it troubled me that people were paring it down to "video games = violence" instead of looking at other possible cognitive problems. If we're actually seeing an "alteration in brain function associated with media violence exposure", doesn't this have more repercussions than just aggressive behavior?

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I agree that functional bra... (Below threshold)

November 25, 2008 11:46 PM | Posted by Jack Coupal: | Reply

I agree that functional brain imaging doesn't have a place in the justice system...yet. Thankfully, it's still mostly done in the clinic, and will be for several years to get the kinks worked out.

It is actually PET imaging that uses a radioactive glucose analogue - not glucose itself - that shows metabolic uptake and concentration within the brain. Importantly, there is objective accurate quantitation of degree and localization of the radioisotope, three dimensionally. None of that subjective interpretation by experts flinging film around.

It's only a matter of time until brain metabolic activity (if that's actually what's being measured) is measured scientifically along with corresponding symptoms, gut feelings, and DSM criteria, leading to its incorporation into the justice system, as well as into the consumer marketing business for detergents and automobiles.

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Thanks! ... (Below threshold)

November 27, 2008 6:39 PM | Posted, in reply to Anonymous Hero's comment, by Anonymous: | Reply


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Some time ago, I did need t... (Below threshold)

November 28, 2010 7:52 AM | Posted by MurielGates24: | Reply

Some time ago, I did need to buy a good car for my corporation but I didn't have enough money and couldn't purchase something. Thank goodness my mother suggested to take the home loans at reliable bank. Thence, I acted that and used to be satisfied with my consolidation loan.

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