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
Board on Health Sciences Policy
Health and Medicine Division
Committee on Science, Technology, and Law
Policy and Global Affairs
THE NATIONAL ACADEMIES PRESS
Washington, DC
www.nap.edu
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This activity was supported by contracts between the National Academy of Sciences and the Alzheimer’s Association; Brain Canada Foundation; Cohen Veterans Bioscience; Department of Health and Human Services’ 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 Parkinson’s 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: 978-0-309-47779-6
International Standard Book Number-10: 0-309-47779-4
Digital Object Identifier: https://doi.org/10.17226/25150
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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.
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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
National Academies of Sciences, Engineering, and Medicine Staff
CLARE STROUD, Director, Forum on Neuroscience and Nervous System Disorders
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
___________________
1 The National Academies of Sciences, Engineering, and Medicine’s 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.
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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, Alzheimer’s 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
___________________
1 The National Academies of Sciences, Engineering, and Medicine’s forums and roundtables 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.
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, Inc.
DOUGLAS SHEELEY, National Institute of Dental and Craniofacial Research
TODD SHERER, The Michael J. Fox Foundation for Parkinson’s 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
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 Wisconsin–Madison
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
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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 carefully considered. Responsibility for the final content rests entirely with the rapporteurs and the National Academies.
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Contents
The Emerging Use of Neurotechnologies in the Legal System
Exploring the Future of Neuroforensics
Organization of the Proceedings
2 USE OF NEUROTECHNOLOGIES AND NEUROSCIENCE IN LEGAL SETTINGS: CASE STUDIES
State of the Art of Technologies Relevant to the Legal System
Detecting Deception with Neuroimaging
Identifying Pain Through Neuroimaging
Genetic Contributions to Behavior Prediction
Closed-Loop Deep Brain Stimulation
Continuous Recording of Brain Activity
4 DEVELOPING A FRAMEWORK FOR USE OF EVIDENCE FROM EMERGING NEUROTECHNOLOGIES