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Neuroforensics: Exploring the Legal Implications of Emerging Neurotechnologies PROCEEDINGS OF A WORKSHOP Lisa Bain, Noam I. Keren, Sheena M. Posey Norris, and Clare Stroud, Rapporteurs Forum on Neuroscience and Nervous System Disorders Health and Medicine Division Committee on Science, Technology, and Law Policy and Global Affairs PREPUBLICATION COPY: UNCORRECTED PROOFS
THE NATIONAL ACADEMIES PRESS 500 Fifth Street, NW Washington, DC 20001 This activity was supported by contracts between the National Academy of Sciences and the Alzheimerâs Association; Brain Canada Foundation; Cohen Veterans Bioscience; Department of Health and Human Servicesâ Food and Drug Administration (5R13FD005362-02) and National Institutes of Health (NIH) (HHSN26300089 [Under Master Base #DHHS-10002880]) through the National Center for Complementary and Integrative Health, National Eye Institute, National Institute of Mental Health, National Institute of Neurological Disorders and Stroke, National Institute on Aging, National Institute on Alcohol Abuse and Alcoholism, National Institute on Drug Abuse, and NIH Blueprint for Neuroscience Research; Department of Veterans Affairs (VA240-14-C-0057); Eli Lilly and Company; Foundation for the National Institutes of Health; Gatsby Charitable Foundation; George and Anne Ryan Institute for Neuroscience at The University of Rhode Island; Janssen Research & Development, LLC; Lundbeck Research USA; Merck Research Laboratories; The Michael J. Fox Foundation for Parkinsonâs Research; National Multiple Sclerosis Society; National Science Foundation (BCS-1064270); One Mind; Pfizer Inc.; Pharmaceutical Product Development, LLC; Sanofi; Society for Neuroscience; Takeda Pharmaceuticals International, Inc.; and Wellcome Trust. Any opinions, findings, conclusions, or recommendations expressed in this publication do not necessarily reflect the views of any organization or agency that provided support for the project. International Standard Book Number-13: International Standard Book Number-10: Digital Object Identifier: https://doi.org/10.17226/25150 Additional copies of this publication are available for sale from The National Academies Press, 500 Fifth Street, NW, Keck 360, Washington, DC 20001; (800) 624-6242 or (202) 334-3313; http://www.nap.edu. Copyright 2018 by the National Academy of Sciences. All rights reserved. Printed in the United States of America Cover image courtesy of Dr. Jack Gallant, University of California, Berkeley. Suggested citation: National Academies of Sciences, Engineering, and Medicine. 2018. Neuroforensics: Exploring the legal implications of emerging neurotechnologies: Proceedings of a workshop. Washington, DC: The National Academies Press. doi: https://doi.org/10.17226/25150. PREPUBLICATION COPY: UNCORRECTED PROOFS
The National Academy of Sciences was established in 1863 by an Act of Congress, signed by President Lincoln, as a private, nongovernmental institution to advise the nation on issues related to science and technology. Members are elected by their peers for outstanding contributions to research. Dr. Marcia McNutt is president. The National Academy of Engineering was established in 1964 under the charter of the National Academy of Sciences to bring the practices of engineering to advising the nation. Members are elected by their peers for extraordinary contributions to engineering. Dr. C. D. Mote, Jr., is president. The National Academy of Medicine (formerly the Institute of Medicine) was established in 1970 under the charter of the National Academy of Sciences to advise the nation on medical and health issues. Members are elected by their peers for distinguished contributions to medicine and health. Dr. Victor J. Dzau is president. The three Academies work together as the National Academies of Sciences, Engineering, and Medicine to provide independent, objective analysis and advice to the nation and conduct other activities to solve complex problems and inform public policy decisions. The National Academies also encourage education and research, recognize outstanding contributions to knowledge, and increase public understanding in matters of science, engineering, and medicine. Learn more about the National Academies of Sciences, Engineering, and Medicine at www.nationalacademies.org. PREPUBLICATION COPY: UNCORRECTED PROOFS
Consensus Study Reports published by the National Academies of Sciences, Engineering, and Medicine document the evidence-based consensus on the studyâs statement of task by an authoring committee of experts. Reports typically include findings, conclusions, and recommendations based on information gathered by the committee and the committeeâs deliberations. Each report has been subjected to a rigorous and independent peer-review process and it represents the position of the National Academies on the statement of task. Proceedings published by the National Academies of Sciences, Engineering, and Medicine chronicle the presentations and discussions at a workshop, symposium, or other event convened by the National Academies. The statements and opinions contained in proceedings are those of the participants and are not endorsed by other participants, the planning committee, or the National Academies. For information about other products and activities of the National Academies, please visit www.nationalacademies.org/ about/whatwedo. PREPUBLICATION COPY: UNCORRECTED PROOFS
PLANNING COMMITTEE ON NEUROSCIENCE AND THE LAW: EXPLORING THE LEGAL IMPLICATIONS OF EMERGING NEUROTECHNOLOGIES1 HENRY T. GREELY (Co-Chair), Stanford University STEVEN HYMAN (Co-Chair), Broad Institute of Massachusetts Institute of Technology and Harvard University JOE S. CECIL, Federal Judicial Center (retired) NITA FARAHANY, Duke University OWEN JONES, Vanderbilt University BEATRIZ LUNA, University of Pittsburgh BENJAMIN NEALE, Harvard Medical School HOWARD NUSBAUM, The University of Chicago JED S. RAKOFF, U.S. District Court for the Southern District of New York KHARA RAMOS, National Institute of Neurological Disorders and Stroke ADINA ROSKIES, Dartmouth College BARBARA J. ROTHSTEIN, U.S. District Court for the District of Columbia JOSHUA R. SANES, Harvard University Health and Medicine Division Staff CLARE STROUD, Forum Director SHEENA M. POSEY NORRIS, Program Officer NOAM I. KEREN, Associate Program Officer DANIEL FLYNN, Research Assistant ANDREW M. POPE, Senior Director, Board on Health Sciences Policy ANNE-MARIE MAZZA, Senior Director, Committee on Science, Technology, and Law 1The National Academies of Sciences, Engineering, and Medicineâs planning committees are solely responsible for organizing the workshop, identifying topics, and choosing speakers. The responsibility for the published Proceedings of a Workshop rests with the workshop rapporteurs and the institution. v PREPUBLICATION COPY: UNCORRECTED PROOFS
FORUM ON NEUROSCIENCE AND NERVOUS SYSTEM DISORDERS1 STEVEN HYMAN (Chair), Broad Institute of Massachusetts Institute of Technology and Harvard University STORY LANDIS (Vice Chair), Director Emeritus, National Institute of Neurological Disorders and Stroke SUSAN AMARA, Society for Neuroscience RITA BALICE-GORDON, Sanofi KATJA BROSE, Chan Zuckerberg Initiative EMERY BROWN, Harvard Medical School and Massachusetts Institute of Technology DANIEL BURCH, Pharmaceutical Product Development, LLC JOSEPH BUXBAUM, Icahn School of Medicine at Mount Sinai SARAH CADDICK, Gatsby Charitable Foundation ROSA CANET-AVILES, Foundation for the National Institutes of Health MARIA CARRILLO, Alzheimerâs Association E. ANTONIO CHIOCCA, Harvard Medical School TIMOTHY COETZEE, National Multiple Sclerosis Society JONATHAN COHEN, Princeton University FAY LOMAX COOK, National Science Foundation JAMES DESHLER, National Science Foundation BILLY DUNN, Food and Drug Administration MICHAEL EGAN, Merck Research Laboratories JOSHUA GORDON, National Institute of Mental Health HENRY T. GREELY, Stanford University RAQUEL GUR, University of Pennsylvania MAGALI HAAS, Cohen Veterans Bioscience RAMONA HICKS, One Mind RICHARD HODES, National Institute on Aging STUART HOFFMAN, Department of Veterans Affairs MICHAEL IRIZARRY, Eli Lilly and Company INEZ JABALPURWALA, Brain Canada Foundation FRANCES JENSEN, University of Pennsylvania 1The National Academies of Sciences, Engineering, and Medicineâs forums and round- tables do not issue, review, or approve individual documents. The responsibility for the published Proceedings of a Workshop rests with the workshop rapporteurs and the institution. vii PREPUBLICATION COPY: UNCORRECTED PROOFS
GEORGE KOOB, National Institute on Alcohol Abuse and Alcoholism WALTER KOROSHETZ, National Institute of Neurological Disorders and Stroke JOHN KRYSTAL, Yale University ALAN LESHNER, American Association for the Advancement of Science (Emeritus) HUSSEINI MANJI, Janssen Research & Development, LLC ATUL PANDE, Tal Medical STEVEN PAUL, Voyager Therapeutics, Inc. EMILIANGELO RATTI, Takeda Pharmaceuticals International DOUGLAS SHEELEY, National Institute of Dental and Craniofacial Research TODD SHERER, The Michael J. Fox Foundation for Parkinsonâs Research DAVID SHURTLEFF, National Center for Complementary and Integrative Health PAUL SIEVING, National Eye Institute NORA VOLKOW, National Institute on Drug Abuse ANDREW WELCHMAN, Wellcome Trust DOUG WILLIAMSON, Lundbeck STEVIN ZORN, MindImmune Therapeutics, Inc. Health and Medicine Division Staff CLARE STROUD, Forum Director SHEENA M. POSEY NORRIS, Program Officer NOAM I. KEREN, Associate Program Officer DANIEL FLYNN, Research Assistant BARDIA MASSOUDKHAN, Financial Associate ANDREW M. POPE, Senior Director, Board on Health Sciences Policy viii PREPUBLICATION COPY: UNCORRECTED PROOFS
COMMITTEE ON SCIENCE, TECHNOLOGY, AND LAW DAVID BALTIMORE (Co-Chair), California Institute of Technology DAVID S. TATEL (Co-Chair), U.S. Court of Appeals for the District of Columbia Circuit THOMAS ALBRIGHT, Salk Institute for Biological Studies ANN ARVIN, Stanford University JOE S. CECIL, Federal Judicial Center (retired) R. ALTA CHARO, University of WisconsinâMadison HARRY T. EDWARDS, U.S. Court of Appeals for the District of Columbia Circuit CHARLES ELACHI, California Institute of Technology JEREMY FOGEL, Federal Judicial Center HENRY T. GREELY, Stanford University MICHAEL IMPERIALE, University of Michigan ROBERT S. LANGER, Massachusetts Institute of Technology GOODWIN LIU, California Supreme Court JUDITH MILLER, Independent Consultant JENNIFER MNOOKIN, University of California, Los Angeles, School of Law MARTINE A. ROTHBLATT, United Therapeutics JOSHUA R. SANES, Harvard University WILLIAM B. SCHULTZ, Zuckerman Spaeder LLP SUSAN S. SILBEY, Massachusetts Institute of Technology DAVID VLADECK, Georgetown Law School SUSAN WESSLER, University of California, Riverside Committee on Science, Technology, and Law Staff ANNE-MARIE MAZZA, Senior Director STEVEN KENDALL, Program Officer KAROLINA KONARZEWSKA, Program Coordinator ix PREPUBLICATION COPY: UNCORRECTED PROOFS
Reviewers This Proceedings of a Workshop was reviewed in draft form by individuals chosen for their diverse perspectives and technical expertise. The purpose of this independent review is to provide candid and critical comments that will assist the National Academies of Sciences, Engineering, and Medicine in making each published proceedings as sound as possible and to ensure that it meets the institutional standards for quality, objectivity, evidence, and responsiveness to the charge. The review comments and draft manuscript remain confidential to protect the integrity of the process. We thank the following individuals for their review of this proceedings: MARTHA FARAH, University of Pennsylvania WALTER KOROSHETZ, National Institute of Neurological Disorders and Stroke PATTI SARIS, U.S. District Court for the District of Massachusetts Although the reviewers listed above provided many constructive comments and suggestions, they were not asked to endorse the content of the proceedings nor did they see the final draft before its release. The review of this proceedings was overseen by ELI Y. ADASHI, Brown University. He was responsible for making certain that an independent examination of this proceedings was carried out in accordance with standards of the National Academies and that all review comments were xi PREPUBLICATION COPY: UNCORRECTED PROOFS
xii REVIEWERS carefully considered. Responsibility for the final content rests entirely with the rapporteurs and the National Academies.
Contents 1 INTRODUCTION AND BACKGROUND 1 The Emerging Use of Neurotechnologies in the Legal System, 2 Exploring the Future of Neuroforensics, 3 Workshop Objectives, 6 Organization of the Proceedings, 8 2 USE OF NEUROTECHNOLOGIES AND NEUROSCIENCE IN LEGAL SETTINGS: CASE STUDIES 9 State of the Art of Technologies Relevant to the Legal System, 10 Detecting Deception with Neuroimaging, 12 Identifying Pain Through Neuroimaging, 14 âBrain Reading,â 18 Genetic Contributions to Behavior Prediction, 21 3 LOOKING INTO THE FUTURE: NOVEL USES OF EMERGING NEUROTECHNOLOGIES WITH POTENTIAL LEGAL APPLICATIONS 25 Closed-Looped Deep Brain Stimulation, 26 Continuous Recording of Brain Activity, 27 4 DEVELOPING A FRAMEWORK FOR USE OF EVIDENCE FROM EMERGING NEUROTECHNOLOGIES 31 Admissibility of Expert Testimony: Batter of the Experts, 32 xiii PREPUBLICATION COPY: UNCORRECTED PROOFS
xiv CONTENTS Translating Scientific Concepts into Legal Constructions (and Vice Versa), 35 Evaluating Neuroscientific Evidence, 37 5 MOVING FORWARD: POTENTIAL NEXT STEPS 41 Building the Next Generation of Tools, 42 Considering the Legal and Ethical Implications of Using Neuroscience Tools in Court, 43 APPENDIXES A References 45 B Workshop Agenda 51 C Registered Attendees 57 PREPUBLICATION COPY: UNCORRECTED PROOFS