In this serious spoof, neurologist and best-selling writer on the brain Richard Restak looks back from the future, wishing that we had scrutinized more carefully the first suggestions, in 1999, that brain scanning could reveal “the Mark of Cain.” Then perhaps neuroscientists would have rejected the role of expert witnesses on moral and social issues, and saved the good name of brain science as the second decade of the twenty-first century began.*

*Note: In the 1999 “panel discussion,” the comments by Lonnie Athens, Edward Bullmore, Adrian Raine, and Richard Rhodes are direct quotations from their published writings.

DECEMBER 2010

Looking back now with the wisdom of hindsight, most reasonable people would agree that we should have anticipated the impact of the Cerebroscope.

As we know, researchers working at five research centers in 2005 developed a scanner capable of revealing subtle and heretofore hidden aspects of brain processing. Thanks to this new and revolutionary technology, neuroscientists could study the brain in “real time” and in exquisite detail as people made decisions, reminisced, or thought about important topics.

After several months’ experience with the Cerebroscope, a young post-doctoral student made an astounding and controversial observation. As part of a research grant jointly funded by the Justice Department and National Institutes of Health, this student performed Cerebroscopic recordings (“Cerebrograms”) on every prisoner in the nation awaiting execution for capital murder. In each instance, she noted abnormalities, sometimes very subtle, in their frontal lobes.

Upon publication of what became known as the “Cerebroscope Death Row Study” in the Journal of Neuroscience, the director of the American Civil Liberties Union’s Capital Punishment Project got in touch with this young neuroscientist. (At her request I omit her name here because, as she told me when I called her for an interview, “I only reported the findings. I don’t want to be attacked all over again.”) Months later, based on the publication and wide dissemination of the Cerebroscope Death Row Study, all executions were put on hold. What’s more, lawyers for many of the prisoners requested that their clients be re-tried. In the interval, these clients should be transferred to mental hospitals, the lawyers argued, because the Cerebroscope findings established that they were not responsible for their crimes; they met the requirements for a plea of “not guilty by reason of insanity.”

Within a year or so of its introduction, the Cerebroscope, with new technical refinements, began to serve as a kind of brain fingerprint to identify people likely to commit even relatively minor crimes, such as petty theft or cheating on income tax returns.

Additional enhancements of the Cerebroscope led to applications entirely outside the criminal justice system, such as cheaper and easier screening of job applicants. Applicants with frontal lobe or other Cerebroscope “abnormalities” not only didn’t get the jobs; personnel departments began referring their names to law enforcement officers for observation and monitoring.

“NORMAL” ABNORMALITIES

As the Cerebroscope became cheaper and more generally available, neuroscientists recognized the need for obtaining a larger baseline of “normal” Cerebrograms. Gathering this information involved testing hundreds of thousands of people picked at random from the general population. An important but initially puzzling finding emerged.

The Cerebroscope detected in significant numbers of people drawn from the general public abnormalities similar to those described earlier in death row prisoners. While in many cases the abnormalities weren’t quite as prominent as those of some prisoners, the frontal areas nevertheless seemed to show some deviation from “normal.”

In fairness, no one could have anticipated this development. Prior to the national testing in 2007, no one had ever carried out a large-scale study estimating the prevalence of brain abnormalities in the general population—not abnormalities detectable by a test as sensitive as the Cerebroscope. Neuroscientists and others expressed uncertainty about what conclusions to draw.

Had neuroscientists developed an instrument sensitive enough to detect “lesions” that had escaped surveillance by earlier less sensitive scanners? Or were the “lesions” just normal variations that, once again, could only be revealed by the supersensitive Cerebroscope? And, while deciding these questions, what should be done about people in the general population with abnormal Cerebrograms? Despite never having committed a crime, should they be considered, along with the job applicant rejects, as possible or even as probable violent criminals?

In a sensible effort to avoid new controversy, neuroscientists and the Cerebroscope manufacturer shifted their emphasis to less contentious applications. A paper published in Science on September 12, 2008, reported on the usefulness of the Cerebroscope as a predictor of academic achievement. Within months of the Science report, Harvard became the first of the Ivy League universities to drop the requirement for a written exam for acceptance. Instead, prospective students had only to submit their Cerebrograms.

While this seemed like an eminently practical application of the Cerebroscope, the issue of frontal abnormalities raised its ugly head once again. A surprising number of applicants turned out to show abnormalities on their Cerebrograms. Once again, the findings were often subtle: the frontal areas not quite “normal” but yet not clearly “abnormal” either. Not certain how to interpret these findings, the admissions committees of most schools decided that their respective institutions should play it safe, rejecting candidates with the suspicious Cerebrograms. If left at that, things probably would not have gotten so out of hand. Unfortunately, some committees went a step further. They added to their rejection letters a “tactfully worded suggestion” that unsuccessful candidates might wish to seek a neuropsychiatric evaluation.

Not surprisingly, the uproar that ensued on the college and university front (remember the intense and sometimes hostile focus groups on campus a year or so ago composed of prospective students, parents, and faculty?) brought into sharp focus several questions that everyone concerned with the Cerebroscope had been ducking for too long: What was the appropriate response to an abnormal Cerebrogram? And, getting back to the original findings on death row prisoners, was it possible on the basis of any brain test to make confident assertions about a person’s state of mind, motives, intentions, and culpability when he or she killed another human being?

The need to address these questions became urgent after editorials in the New York Times, Washington Post, and Los Angeles Times suggested neuroscientists were overstepping their bounds. How dare they arrogate to themselves determinations such as who might later commit a criminal act, who should be hired for a particular job, or how universities should go about choosing their students? The Times editorial even made an unfortunate comparison between the then current president of the Society for Neuroscience and the late actor Peter Sellers in his role as Dr. Strangelove.

What would have been the best approach to take a decade earlier (in 1999) to a claim that brain-imaging abnormalities might someday explain why people kill others?

LOOKING BACK AT 1999

Responding to the ensuing uproar and growing animus toward neuroscientists and neuroscience, the NIH this month established a commission to make recommendations. The commission’s chairman, a professor of the history of science at Princeton University, is making the unusual but intriguing suggestion that the Cerebroscope controversy should be examined from a historical perspective. Instead of letting the advanced technology of the Cerebroscope shape our responses, he urged, we should put ourselves back to the time before the Cerebroscope existed. What would have been the best approach to take a decade earlier (in 1999) to a claim that brain-imaging abnormalities might someday explain why people kill others?

For the “1999 perspective” he is distributing the transcript of a panel discussion held that year about violence and the brain. What follows are selected statements of three panel members on what had been referred to in 1999 as the “neurologic defense.” Also included are thought-provoking comments by a neuroradiologist, a lawyer, and a psychoanalyst who attended the discussion. Here are excerpts from that 1999 panel.

MODERATOR: Before we get into the neuroscience, let’s hear from a man who has interviewed and studied more violent people than anyone else alive. Lonnie H. Athens is a criminologist with two qualifications for understanding and explaining violence. First, he speaks from experience: As a young child Athens regularly suffered violent beatings at the hands of his father. Second, Athens, in his capacity as one of the nation’s foremost criminologists, spent more than 30 years interviewing hundreds of violent people. In those interviews, Athens discerned a pattern. Violent people are violent because they incorporate the attitudes and values of other violent people they have been exposed to. This “phantom community,” as Athens puts it, is the “hidden source of emotions like fear, anger, hate and love. It also provides a skewed interpretation of people and situations that serves to justify violence in the eyes of the violent offender.”

As I understand it, Mr. Athens believes that violent criminals, as a result of early exposure to violence, interpret their world differently from their non-violent neighbors and that their violence emerges from these different interpretations. Mr. Athens and his research inspired the new book by Pulitzer prize winning author Richard Rhodes, Why They Kill: The Discoveries of a Maverick Criminologist. Mr. Athens, perhaps you could elaborate for us.

Just as people who have never read a physics book do not make earth-shattering discoveries in natural science, people who have never had any prior violence-related experiences whatsoever do not suddenly commit heinous crimes.

ATHENS: “Engaging in violence is not only a matter of having nothing to lose, but also a matter of having something to gain. People who have a greater commitment to a violent social world than to a non-violent one perceive they have less to lose and more to gain by engaging in violence. The more committed a person is to a violent social world than a nonviolent one, the more violent he or she will likely be. Violent people consciously construct violent plans of action before they commit violent criminal acts. Just as people who have never read a physics book do not make earth-shattering discoveries in natural science, people who have never had any prior violence-related experiences whatsoever do not suddenly commit heinous crimes.”

MODERATOR: What you’re saying seems sensible regarding people living in neighborhoods or communities where violence is a way of life. But what about violent people who don’t grow up under such circumstances? What about the so-called “good” children from “good families” who later turn out to be violent?

ATHENS: “People who commit heinous violent crimes always have some violence-related experiences in their backgrounds, although such experiences may sometimes be deeply hidden from others and not apparent without a thorough and painstaking investigation of their biographies.”

MODERATOR: What about the relationship of violence to mental illness? I believe you wrote something about your father and why, despite his violent temperament, he was not suffering from a mental illness.

ATHENS: “He wasn’t illogical. There was a logic to his violence. So I never really believed in the mental illness model of violence. I knew you could be mentally ill and not violent. And I knew you could be violent and not mentally ill. There’s no one-to-one correspondence.”

Richard Rhodes in his recent book describing my work, Why They Kill, wrote that “‘crazy’ is a value judgment. Athens’s work demonstrates from evidence that people who commit violent criminal acts have reasons for doing so that they believe to be significant, not trivial or senseless—reasons they do not usually share with mental health professionals.”

MODERATOR: So I take it that you would not agree that there is a “Mark of Cain,” a telltale neurologic sign by which potentially violent people can be identified? Or that a person’s brain organization predetermines their propensity for violence?  

ATHENS: “Since human beings are normally aware of at least some of the contingencies that confront them in any situation, they can always exercise some degree of control over their conduct. At bare minimum they can decide whether to pursue or avoid a particular course of action.”

The author Richard Rhodes summed up my opinion: “Athens’s discovery that violent criminals know what they are doing when they decide to act violently means that murders are never senseless from the murderer’s point of view; that motives however ‘trivial’ and ‘apparently unimportant’ they may seem to psychologists, do inform violent criminal acts; that violent criminals do not ‘snap’ but make decisions and act on them; that in every case where a violent criminal is willing to discuss his violent criminal acts honestly it is possible to know why he committed them.”

MODERATOR: The next two speakers will get us into the neurobiology of violence. Each differs in background and experience; each holds fundamentally different views about violence and the brain.

Adrian Raine is a leading researcher on the biosocial basis of violent behavior and the author of a recent paper “Murderous Minds: Can We See the Mark of Cain?” published in the Spring 1999 issue of Cerebrum, a journal on brain research for professional and general audiences.

RAINE: “My colleagues and I scanned the brains of 22 murderers and compared them with the brains of 22 nonmurderers. We found a select deficit (a lack of activation) in the prefrontal cortex in the murderers.

When we increased our sample from 22 to 41 murderers we confirmed the significant reduction in prefrontal activity and found the brain structure known as the left angular gyrus functioned more poorly in the murderers.”

MODERATOR: What did you conclude from that? Would you summarize your conclusions as you did in Cerebrum?

RAINE: “We think poorer functioning of the prefrontal cortex predisposes an individual to violence while damage to the angular gyrus has been linked to deficits in reading and arithmetic. Such cognitive deficits could predispose to educational and occupational failure, in turn predisposing to crime and violence.”

MODERATOR: Of course, the vast majority of people who fail at school and work aren’t violent. But go on with your presentation.

RAINE: “Our specific pattern of findings, involving the prefrontal cortex, corpus callosum, angular gyrus, amygdala, hippocampus and thalamus suggests a unique PET ‘signature’ of the brains of some murderers.”

MODERATOR: You say only “some murderers”?

RAINE: “We do not yet know if violent offenders in the community who commit serious nonlethal violent acts also have prefrontal dysfunction, nor have we established causality [in our sample of murderers].”

MODERATOR: As you heard, I asked Professor Athens about violent people from “good” homes versus “bad” ones. Could you comment as well, please?

RAINE: “We identified 12 murderers as having experienced significant psychosocial deprivation and 26 as having experienced minimal deprivation. While the deprived murderer shows relatively good prefrontal functioning, the non-deprived murderer shows the characteristic lack of prefrontal functioning. At first these findings seemed unexpected, but from another perspective they made sense. If a seriously violent offender comes from a bad home, it is plausible to seek the causes of his violence there. If he comes from a good home biological deficits become a more likely explanation.”

MODERATOR: Mr. Athens suggested that those from either the good or the bad home became violent on the basis of their personal experience with violence. So far I haven’t heard you address the issue of a violent person’s earlier experience with violence; nor did you address it in your Cerebrum article, which I read earlier today. It sounds like you’re saying, at least in regard to violence, that environmental experiences exert a determining influence in a deprived environment while in a more privileged one biological effects take precedent. I’m a bit confused at the logic here, but please go on. Your conclusions from all of this?

The question that law courts ask when dealing with a defendant is “did he do it?” But the more important question—one that courts rarely ask—is “Why did he do it?” The violent offender is like a jigsaw puzzle.

RAINE: “The political, legal, and moral questions raised by this research are complex and worrisome, but they are too important to ignore. The question that law courts ask when dealing with a defendant is ‘did he do it?’ But the more important question—one that courts rarely ask—is ‘Why did he do it?’ The violent offender is like a jigsaw puzzle.

Decades of careful psychosocial research have identified some of the pieces (e.g. child abuse, delinquent peers, and gangs). Recently we have begun to identify the biological pieces (low physiological arousal, high testosterone, birth complications, and low serotonin). Now brain-imaging research is beginning to identify the brain mechanisms. The challenge is to uncover more neurobiological pieces and put them together with the social pieces to fill out our picture of the violent offender.”

MODERATOR: Thank you, Prof. Raine. The next panelist is Richard Restak, a neurologist and neuropsychiatrist. He has written on the relationship of brain damage and criminal responsibility in The Sciences, the Archives of Neurology, and the Washington Post. Dr. Restak has also appeared as an expert witness in many cases involving capital murder and the death penalty. Dr. Restak, your comments.

RESTAK: Of course brain damage can cause violent behavior. Or perhaps it would be more correct to say, “brain damage can be associated with violence.” But certain distinguishing features identify brain-damagerelated violence. Such violence usually involves sudden, explosive, and often unprovoked attacks. Afterwards, the attacker frequently speaks of “losing control”or suddenly being overwhelmed by aggressive, even murderous impulses. The technical term for this condition is “episodic dyscontrol syndrome.” The name is an apt description of its two distinguishing features. So far, no one has presented a convincing instance of a person with a damaged brain who, as a necessary consequence of that damage, carried out a coldly premeditated act of violence.

It’s also true that violent criminals show a higher incidence of some factors associated with brain damage—head injuries, abuse, seizures, attention deficit disorder, low IQ scores, and subtle neuropsychological deficits—than do people in control groups. More significant, however, most people with these afflictions do not commit violent criminal acts. Nor does the presence of any of these factors in a person’s past necessarily imply in a particular instance any appreciable impairment of that person’s ability to control violent impulses toward others. This is especially true with regard to crimes like serial killing or stalking that involve premeditation or are carried out over extended periods of time.

At the maximum, brain damage—in the frontal lobe or elsewhere—has the potential to decrease a person’s threshold for sudden impulsive violence. While this may be mitigating in some instances, it is neither exculpatory nor explanatory in others. Most violent people are neurologically normal.

At the maximum, brain damage… has the potential to decrease a person’s threshold for sudden impulsive violence. While this may be mitigating in some instances, it is neither exculpatory nor explanatory in others. Most violent people are neurologically normal.

As an example of where the neurologic defense (more appropriately termed “the neurologic excuse”) can lead, consider Prof. Raine’s comments about abnormalities in the left angular gyrus. This same brain area is abnormal in people with dyslexia—the basis, I assume, for his comment about “deficits in reading and mathematics.” Yet very few dyslexics are violent. So what should we tell the parents of a dyslexic kid? “Your son may turn out to be a murderer?”

Nor do I think that Prof. Raine’s sample of 41 “referrals from defense attorneys” qualifies as a large enough sample. And why just referrals from defense attorneys? Because “their clients will die unless mitigating circumstances such as an abnormal PET scan revealing brain abnormalities can be found,” Prof. Raine tells us. This hardly sounds like the statement of an objective scientist. Why didn’t Prof. Raine contact prison wardens and others and try to study death row prisoners not engaged in active efforts of appeal or in a search for “mitigating circumstances”? They would have formed an interesting control group. And while we’re on that subject, who constituted his control group of non-murderers? Other incarcerated criminals? Volunteers? Surly graduate students?

A careful reading of Prof. Raine’s article reveals that it is as much about why we should eliminate the death penalty as it is about violence and brain abnormalities. “Will we look back aghast at the execution of seriously violent offenders? Will we view execution of prisoners as we now view the burning of witches?” Prof. Raine doesn’t fudge in his response to that question. “I would like to think so.” While Prof. Raine has every right to hold this particular view, should he employ his status as a neuroscientist to promote it?

We’re not entitled to use our scientific credentials to advance personal political agendas. To do so devalues the contributions neuroscience can make toward clarifying when and under what circumstances legitimate brain impairment may limit the control of violent impulses.

When it comes to evaluating violence, and criminality in general, neuroscience is a newcomer compared to criminology, sociology, and psychology. As a result, we should be careful not to let personal opinions about highly controversial and polarizing social issues like the death penalty determine our professional judgments. Is the death penalty a barbaric practice that should be eliminated from a humane and enlightened society? Perhaps it is. There is no easy answer to that question; we are entitled to our personal opinion about it. But we’re not entitled to use our scientific credentials to advance personal political agendas on capital punishment. To do so devalues the present and future contributions neuroscience can make toward clarifying when and under what circumstances legitimate brain impairment may limit the control of violent impulses.

MODERATOR: You sound rather critical of both motives and techniques. Let’s talk about your experience with death penalty cases.

RESTAK: I have testified both for the defense and the prosecution in murder cases where brain damage was raised as a defense.

MODERATOR: You have appeared as an advocate for the neurologic defense and, on other occasions, as an opponent of that same defense? Isn’t that somewhat inconsistent?

RESTAK: I don’t think so. In some instances brain lesions in the frontal lobe or elsewhere result in perceptions, feelings, and behaviors that can compromise a person’s autonomy. In other cases, lesions are of dubious relevance. As I implied a moment ago, attacks of sudden uncontrollable rage that proceed from temporal or frontal lobe damage could explain a killing that took place in a burst of fury or temper. But that same damage would be incidental to offenses such as a planned murder preceded by months of stalking.

Besides, as Prof. Athens pointed out, violent people come from violent backgrounds. Head injury with frontal damage would not be unexpected in such settings. If such a person goes on to commit murder, his frontal injury, while perhaps a consequence of the violence done to him, isn’t necessarily a sufficient explanation for his own subsequent violent actions. So in answer to your question about my experience as a witness, the neurologic findings are sometimes relevant and sometimes irrelevant. A violent person may have some form of frontal impairment and yet that impairment doesn’t provide a forensically satisfying explanation of why that person kills his spouse or hires someone else to kill her. Each case must be looked at individually.

A currently favored defense holds that frontal damage renders a person less anxious about acting violently, or less able to foresee the consequences of violent actions. In a recent issue of Nature Neuroscience, Raymond J. Dolan, a cognitive neurologist in London, suggests on the basis of some instances of damage to the orbitofrontal cortex that “knowledge acquisition relevant to moral and social behavior has a neurobiological substrate dissociable from that of other forms of knowledge acquisition.” If that proves correct, “we will need to reappraise the societal challenges posed by psychopathy and related disorders which currently (and inconveniently) linger in a hinterland between psychiatry and criminal services.”

It doesn’t require a lot of social savvy to foresee that killing somebody is wrong and likely to lead to some serious personal consequences.

Aside from the fact that, as Dolan readily admits, “such patients are exceedingly rare,” a person with an orbitofrontal lesion isn’t prevented from foreseeing the likely consequences of his actions. Although he—or she (although such criminals are almost exclusively men)—may “display profound and pervasive difficulties in social behavior,” it doesn’t require a lot of social savvy to foresee that killing somebody is wrong and likely to lead to some serious personal consequences. Perhaps this is one of the reasons why the vast majority of people with orbitofrontal lesions have never harmed anyone.

In addition, a person with frontal damage may satisfy the requirements for insanity by one legal criterion but fail to meet other, more stringent requirements. Let me give a specific example. On January 22, 1997, Mir Aimal Kansi, a Pakistani native recently arrived and seeking asylum in the United States, bought an AK-47 style assault rifle and ammunition at a Chantilly Virginia gun store. Three days later, Kansi stepped out of a car outside Central Intelligence Agency headquarters in Langley, Virginia, and shot five people as a protest against U.S. foreign policy towards Muslims in the Middle East. Two of the victims, CIA employees, died; three others were seriously wounded.

At Kansi’s much-publicized trial, I argued that Kansi “was significantly mentally impaired from brain damage his whole life” and, as a result of this impairment, lacked the ability to anticipate the consequences of his acts. “He was impaired by his lack of empathy and caring about other people,” I concluded.

My testimony was based on my examination of Kansi, which turned up frontal lobe findings along with abnormal MRI and SPECT scans that showed frontal abnormalities. The legal standard in Virginia, the McNaughton Rule, holds that a person is not responsible for criminal acts when, because of a “disease of the mind,” he does not know the “nature and quality” of his acts or does not know they are “wrong.”

On cross-examination I was asked, “When Kansi walked up to those cars and fired at point blank range, do you believe he knew that his actions were wrong and that as a result of those actions the people in the car could suffer death or serious injury?” I answered truthfully and affirmatively to both parts of that question. Frontal lesion or not, Kansi knew the nature of his action and its likely consequences and therefore did not meet the McNaughton standard for a determination of not guilty by reason of insanity. The jury found him guilty of first degree murder and sentenced him to death.

The legal system, not neuroscience, determined Kansi’s guilt. It’s helpful to remember that when we think we have “scientific proof” of an accused person’s “innocence.”

Would Kansi have met less stringent criteria for the “insanity defense,” such as some version of the “irresistible impulse” standard? I believe that he would. But “insanity,” as in the Kansi case, is a legal and not a medical determination. The jurors in one jurisdiction applying one standard found him guilty; jurors in another jurisdiction applying a different standard for “insanity” might well have reached a different conclusion and Kansi would not now be awaiting execution. While in each instance my testimony would have been the same, the difference in outcome might literally have been a matter of life versus death. The legal system, not neuroscience, determined Kansi’s guilt. It’s helpful to remember that when we think we have “scientific proof” of an accused person’s “innocence.”

MODERATOR: We have time for three comments from the audience. First, an expert on neuroradiology will comment on whether or not we can look forward someday to a brain imaging device that might settle some of the differences of opinion we have heard thus far.

AUDIENCE MEMBER: “I’m Edward Bullmore from the Institute of Psychiatry in London. In a recent issue of Human Brain Mapping we wrote of an instructive and perhaps analogous episode in the history of astronomy. In the late sixteenth century, a new-fangled imaging device became available for the first time, thanks to technological developments in optics. Astronomers were able to look at the planets through a telescope, but what they saw when they looked at the planet Saturn was both unpredicted and the subject of disagreement between [sic] them. The planet was obviously not always a perfect disc, as had been expected, but it was not obvious how it should be regarded instead. Different astronomers mapped it as a circle flanked by two smaller circles, or two triangles, or one or two crescents. Strangely, its appearance was also noted to change between observations by the same astronomers.

“This phenomenal inconstancy was ultimately resolved not by the development of much better telescopes, but by the development of a much better theoretical model of the observations. Christian Huygens understood that Saturn was constantly surrounded by rings and that its inconstant appearance viewed through a telescope was the result of a confounding interaction between the different orbits of Saturn and Earth around the sun. The point of this story is that a major technological development does not automatically clarify phenomena. It may even introduce new sources of bias.” 

Imaging devices can’t make up for mistaken or muddled theories. No imaging device presently exists that will enable any scientist to read another person’s intentions and imaging devices alone aren’t going to give us the answer why some people kill others.

MODERATOR: You seem to be saying that imaging devices can’t make up for mistaken or muddled theories. No imaging device presently exists that will enable any scientist to read another person’s intentions and, if I understand your astronomical analogy, imaging devices alone aren’t going to give us the answer why some people kill others.

You, sir, would like to make a comment? Please step up to the microphone.

AUDIENCE MEMBER: I am professor of law at the University of Pennsylvania, and I’d like to make a comment on something that seems to be largely absent from the discussion so far. As Dr. Restak briefly reminded us, judges and juries, not neuroscientists, make the final determination about insanity and responsibility. There is good reason and precedent for this. No test, no matter how reliable, will ever serve as the sole basis for deciding about mens rea, i.e., the state of mind and intention of an alleged murderer.

Remember the lie detector test? No one seriously believes anymore that the lie detector or any instrument can measure with certainty—the kind of certainty required in a court room—whether or not a person is telling the truth. If used at all— and lie detector evidence isn’t even admissible in some courts—the test provides only a small segment of the total evidence considered by the judge and jury.

Would tests demonstrating a so-called “Mark of Cain” be admitted as evidence in a murder trial? That would depend on how much influence such a test might have on jurors’ opinions. If the judge felt that the jurors would proceed—as some of you neuroscientists appear to be doing, incidentally —by using the test as ultimate determinant of guilt or innocence, I doubt the test results would be admitted.

In addition, technology is advancing at such a pace that this year’s pet testing procedure (I mean no pun here) will be replaced in a year or so by something even more powerful. As a consequence, there simply isn’t enough time to gather the necessary database. You have tons of testing done on people afflicted with various illnesses but so far no really large database— I’m talking hundreds of thousands of people here—on the average neuropsychiatrically normal American. Do you have any statistics to prove that if you scan a large enough cohort of people you will not uncover a significant number with “abnormal” findings? Of course you don’t; such studies have never been done.

But even if you neuroscientists invent some incredible instrument that, as we laymen put it, can “read minds” you still can never be certain of why that person acted as he or she did. Courts don’t necessarily make that determination either, but at least the legal process approaches the problem in a far more sophisticated way than relying on some magic machine to decide everything. If that sounds harsh, I don’t intend it to. But most of you have never been in a courtroom in your life and haven’t a clue about law, court procedures, rules of evidence, and so on. To become an expert on these you’ll have to do more than watch Court TV. And even in those televised cases, nobody comes running into the courtroom brandishing some imaging report that, alone, necessarily determines an accused person’s guilt or innocence.

One final point. The track record of neuroscientists on social issues leaves much to be desired. Remember the psychosurgery fiasco of the 1940s and 1950s? Granted, the doctors involved in the 50,000-plus psychosurgical operations would not qualify today as neuroscientists according to the contemporary definition of that term. But the general public doesn’t know enough about neuroscience to make such fine distinctions and tends to group all of you into the general class of “brain doctors.” Thank you.

At this point an elderly, slightly built man stepped to the microphone and spoke briefly with a soft Viennese accent.

AUDIENCE MEMBER: Even though I am a psychoanalyst and not a neuroscientist, I can identify with what you are now facing. We encountered a similar challenge and failed miserably. Maybe I can help you avoid a similar mistake.

Sigmund Freud in his later years turned his attention away from what he knew best—patients and clinical issues—to concentrate instead on war, religion, politics, and other subjects far removed from psychiatry or psychoanalysis. Soon other psychoanalysts did the same. Almost overnight we became the authorities on everything. The public turned to psychoanalysts for child-rearing advice; businesses sought the advice of psychoanalysts on how to deal with personnel and management issues; governments applied psychoanalytic ideas to arrive at “profiles” of world leaders such as Freud’s own study on Woodrow Wilson.

Soon our entire profession was adrift in social and political issues on which we were not expert at all. Worse, we could never agree among ourselves on a particular issue. Was Hitler psychotic? A malignant narcissist? A megalomaniac? You could take your pick from dozens of characterizations and back up your opinion with the statements or writings of some psychoanalyst somewhere.

In time, the public caught on to our uncertainty and lack of depth in these areas. The credibility of our profession plummeted. Twenty years ago, after all, a panel discussing an issue like you’re discussing today would have had at least one psychoanalyst on it. Today I consider myself fortunate to be here as an observer.

At this time, when it’s vitally important to maintain public enthusiasm and funding for brain research, does it really make sense for neuroscientists to become identified in the public’s mind not as scientists but as advocates on controversial and contentious issues like capital punishment or proposed biological “markers” for criminality and violence?

At this time, when it’s vitally important to maintain public enthusiasm and funding for brain research, does it really make sense for neuroscientists to become identified in the public’s mind not as scientists but as advocates on controversial and contentious issues like capital punishment or proposed biological “markers” for criminality and violence?

Finally, if some of you decide, as individuals, to become involved in the neuroforensics of violence and crime, don’t do so as an ideologue. Don’t allow your political and social persuasions to influence your expert opinions. Stick to what you know. Avoid the temptation of believing neuroscience can provide explanations for everything. At this point, the moderator of the 1999 panel called the discussion to a halt. His final comments, made a decade ago, can be recognized today, in 2010, as prophetic in regard to our present situation:

MODERATOR: You have heard the main arguments for and against the view that neuroscience is in a unique position to understand why people kill and therefore should play a major role in influencing the disposition of violent criminal offenders.

Think about what Athens, Raine, and Restak have said. Try to decide what conclusions seem reasonable. What position on all of this should you take? In essence, can neuroscience really make the kinds of distinctions required under the law to separate the mad from the bad? Is there any reason to think that it will ever be able to do so?

I’m convinced that it is important to reach a consensus now about the appropriate role, if any, for neuroscience in our legal system. Let’s do so now, while the technological and ethical questions are still manageable.