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In 2019, the residual hearsay exception, Federal Rules of Evidence 807, was amended to fix a number of problems that courts had encountered applying the rule. Hearsay is generally not admissible evidence because the speaker is not subject to examination or cross-examination to determine accuracy or truthfulness. But there are several enumerated exceptions to the general rule, as well as a residual exception for hearsay that does not satisfy an enumerated exception, but that has "sufficient guarantees of trustworthiness." Amendments include a required consideration of corroboration and changes to the notice requirements.

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In this module, Amanda C. Pustilnik, professor of law at the University of Maryland, discusses approaches that judges could employ when evaluating emerging neurotechnology. She provides insight into the following questions:

  • What sort of framework can judges use in their approach to evaluating emerging neurotechnology?
  • Should there be specific standards for using neuroscience evidence?
  • What emerging technology do you foresee or predict lawyers will attempt to introduce as evidence in the near future?

Objectives:

  • to identify potential standards for neuroscience evidence
  • to examine emerging neurotechnology from which the court could benefit

To learn more about Amanda Pustilnik, click here.

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This module introduces the neuroscientific evidence underpinning the differences between adolescent and adult brains and how this may inform legal decision-making. Dr. Robert Kinscherff, associate professor in the doctoral program in clinical psychology and associate vice president for community engagement at William James College, talks about ways to gain a better understanding of how the brains of young adults differ from those of children and adults and how this affects young adult behavior. He also elaborates on the importance of considering how culpability and punishment should be viewed differently in cases involving young adults.

Objectives:

  • to understand the fundamental differences between adolescent and adult brains
  • to understand how maturation of the adolescent brain could affect the behavior of young adults

To learn more about Dr. Kinscherff, click here.

Additional Resources:

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In this module, Dr. David Thomas, founding member of the National Institutes of Health (NIH) Pain Consortium, provides an overview of the neuroscience of pain and seeks to answer the following questions:

  • What is pain? What do we know about the brain pathways involved in acute and chronic pain? What treatments are available?
  • What are the social costs of pain?
  • What are the current diagnostic techniques used to detect pain?
  • Are there objective measures of pain, and what are the drawbacks of technologies that try to achieve this?

Objectives:

  • to understand the difference between pain and nociception, how clinicians define acute and chronic pain, and the pain pathways in the brain
  • to understand the variability of the experience of pain
  • to obtain a basic understanding of the current diagnostic techniques related to pain detection

To learn more about Dr. Thomas, click here.

Additional Resources:

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Judge Jed S. Rakoff provides concluding remarks.

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Traumatic brain injury (TBI) is a rich area of research that is growing in public interest and increasing in funding due to the rising awareness of brain injuries related to military service and athletic activities. This module highlights the ways in which TBI may alter brain function.

Dr. David Brody, director of the Center for Neuroscience and Regenerative Medicine at the Uniformed Services University, is considered one of the world’s foremost researchers on traumatic brain injury and neurodegenerative diseases. In this segment, Dr. Brody describes the symptoms, pathology, and treatment of TBI and how these injuries affect behavior in patients.

Objectives:

  • to understand how TBI is defined and detected
  • to understand how these conditions are diagnosed and the legal issues that might stem from such a diagnosis

To learn more about Dr. Brody, click here.

Additional Resources:

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In this module, Dr. Craig Stark from the University of California, Irvine, discusses how memory is encoded in the brain, how memories can be manipulated, and why these topics are relevant to the courts. He addresses the following questions:

  • What are some common misperceptions about memory (e.g., are memories of stressful events more reliable than other memories)? How are these relevant to legal matters?
  • How do memory distortions occur, and what factors affecting memories should we be aware of?
  • How does stress affect memory retrieval?
  • What are some potential uses for lie and recognition detection?

Objectives:

  • to understand how memories are encoded in the brain
  • to define lie and recognition and understand how these terms relate to both law and neuroscience

To learn more about Dr. Stark, click here.

Additional Resources:

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This module provides a basic overview of how functional magnetic resonance imaging (fMRI) technology works, what the data can tell a researcher, and what challenges those who seek to introduce fMRI data in court face.

Dr. John VanMeter, director of the Center for Functional and Molecular Imaging at Georgetown University, applies his significant expertise in the analysis of magnetic resonance imaging data to demonstrate an experiment using fMRI and discusses caveats of this technology, experiment structure, the group-to-individual inference problem, and how these things could be useful to the courts.

Objectives:

  • to understand what fMRI is measuring and how the data is analyzed
  • to understand the caveats of fMRI studies
  • to gain awareness of the types of cases that might draw upon fMRI data

To learn more about Dr. VanMeter, click here.

Additional Resources:

  • Prospects of Functional Magnetic Resonance Imaging as Lie Detector
  • Martha J. Farah, J. Benjamin Hutchinson, Elizabeth A. Phelps & Anthony D. Wagner, Functional MRI-Based Lie Detection: Scientific and Societal Challenges, 15 Nature Reviews Neuroscience 123 (2014).
  • Michael S. Pardo, Lying, Deception, and fMRI: A Critical Update, in Neurolaw and Responsibility for Action: Concepts, Crimes, and Courts 143 (Bebhinn Donnelly-Lazarov ed., Cambridge University Press 2018).
  • Anthony D. Wagner et al., fMRI and Lie Detection, MacArthur Foundation Research Network on Law and Neuroscience (2016).

There are many disciplines and experiences that go into the successful supervision of justice-involved individuals. On this episode of Off Paper, the criminal justice podcast from the FJC, host Mark Sherman talks to an individual whose career weaves together many of those threads. Dr. Robert Kinscherff is a clinical forensic psychologist and attorney  with more than thirty years of experience in forensic mental health. He has been a Senior Fellow in Law and Neuroscience at the Project on Law and Applied Neuroscience, a collaboration between the Center for Law, Brain and Behavior at Massachusetts General Hospital and the Petrie-Flom Center for Health Law Policy at Harvard Law School. Dr. Kinscherff also has broad governmental experience having held senior state positions in Massachusetts administering in-patient forensic mental health services , juvenile and adult court clinic operations and diversion programs, as well as specialty courts for persons with mental illness and significant addiction, trauma and multi-system involvement. Mark’s discussion with Dr. Kinscherff explores all those facets of his training and experience and his observations regarding important issues in supervising justice-involved individuals.

Episode 4: An interview with Daniel Pink, bestselling author, contributing editor at Fast Company and Wired, and business columnist for The Sunday Telegraph.

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