Revealing Injured Minds: Harnessing Cutting-Edge Neuroimaging for Enhanced Brain Injury Claim Validity

Policy Brief by Kathleen Carmichael

Executive summary

Advances in neuroscience have the power to inform and improve many aspects of our legal system (Chorvat & McCabe, 2004). In the context of civil cases, new and enhanced neuroimaging technologies offer an unprecedented opportunity to generate additional scientific evidence for brain-related or otherwise “invisible” injury claims that have characteristically been difficult to substantiate (Wilkinson, 1997). Traditionally, claims related to chronic pain, depression, post-traumatic stress disorder (PTSD), traumatic brain injury, and many other cognitive-related conditions have had to rely on self-reports and expert testimony (Kolber, 2009). Now, as neuroimaging evidence becomes more common, accurate, and even expected, those unable to provide this type of evidence due to cost constraints or privacy concerns may be disadvantaged (Jwa & Poldrack, 2022; Jiang et al., 2023). Clear guidelines for the collection of neuroimaging data and its interpretation in courtrooms will be critical for mitigating any inequalities and misapplications that may emerge from greater use of neuroimaging evidence in legal contexts.

Key messages

• Although the use of neuroscientific evidence in court cases is not new (Aono et al., 2019), its application has primarily been limited to criminal cases.
• Neuroimaging technologies can provide evidence supporting neurological, psychological, or otherwise “invisible” injury and suffering claims in civil cases.
• To ensure equitable access and limit the misuse and misinterpretation of evolving neuroimaging technologies, steps need to be taken to 1) provide adequate funding for its use, 2) protect the privacy of acquired brain data, and 3) require basic education on proper interpretation of neuroscientific evidence.

Introduction

Neuroimaging is a type of noninvasive imaging that uses cutting-edge technologies to study the structure and function of the brain (Fulham, 2004). Various neuroimaging techniques exist, and each has its own advantages and disadvantages (Camprodon & Stern, 2013). The quality of  neuroimaging techniques has rapidly improved in recent years, making them powerful tools for diagnosing disease and assessing brain health. While neuroimaging is most commonly used for studying and treating brain disorders, its practical influence extends to the legal system as well. Neuroimaging can offer tangible evidence of brain injuries that are otherwise challenging to objectively prove.

Almost two decades ago, legal and neuroscience experts convened to envision the future of neuroscience and law (Garland, 2004). Since then, the use of neuroscientific evidence has rapidly increased. Most frequently presented in the context of criminal sentencing, neuroscientific evidence has often been used to minimize the culpability of a defendant (Meixner, 2016). Between 2005 and 2015, over 2,800 judicial opinions reported that criminal defendants used neuroscience in their defense (Greely & Farahany, 2019; Figure 1).

Figure 1. Judicial opinions from 2005-2015 documenting the use of neuroscience by criminal defendants in their defense. The data reveals a consistent increase in the number of homicides (both capital and noncapital) and serious felony cases where neuroscientific evidence is presented (Greely & Farahany, 2019).

What is the problem?

Despite its favorable impact for many criminal defendants, neuroscientific evidence has seen limited use in the civil legal domain. This is notable given the recent surge in the number of filings for civil cases compared to criminal cases (United States Courts, 2020). Fortunately, the usage of brain imaging data has the potential to provide additional objective support for injuries related to PTSD, emotional suffering, and other mental disorders that have historically been hard to substantiate to the level needed in the legal system (Cassin, 2013). Even without a pre-event baseline brain scan, valuable insights about brain function can still often be gleaned from post-event neuroimaging data (Churchill et al., 2020). And better yet, given the growing rates of diagnostic and research-related neuroimaging in the United States, more individuals will now have prior neuroimaging data that can further support claims of brain damage (Smith-Bindman et al., 2008; Szucs & Ioannidis, 2020).

Despite its potential utility, many new bioethical, fairness, privacy, and legal issues will also emerge as neuroimaging evidence becomes more prevalent. These issues will need to be comprehensively addressed if neuroimaging evidence is to be equitably and effectively utilized in court cases going forward. The following recommendations offer actionable solutions aimed at mitigating unequal access, discrimination, and misinterpretation relating to the use of neuroimaging evidence in the United States legal system.

Recommendations

1. Ensure equitable access to neuroimaging evidence.
   Evidence suggests that judges often exhibit implicit socioeconomic bias in the form of disproportionate favor and positive rulings for wealthy litigants versus those living in poverty (Neitz, 2013). Failure to obtain informative neuroimaging data solely due to financial barriers will only exacerbate discriminatory rulings. Therefore, should a party recognize the significance of neuroimaging evidence for their claims, cost should not be a barrier for obtaining it.One approach for helping lower-income individuals obtain neuroimaging evidence is to ensure adequate funding for the Legal Services Corporation (LSC), a significant supporter of civil legal aid. The LSC’s annual budget is established through the Congressional appropriations process (Saturno & Lynch, 2023) and is overseen by the House and Senate Subcommittees on Commerce, Justice, Science, and Related Agencies. It is therefore imperative that these budgetary decision-makers prioritize the allocation of sufficient funding to the LSC.In addition to acquiring adequate funding, the LSC must also effectively allocate an appropriate amount of its resources towards obtaining neuroimaging evidence. Since legal aid organizations receiving LSC funding must adhere to the corporation’s guidelines, the LSC’s Board of Directors should establish clear expectations for helping lower-income individuals get access to neuroimaging evidence.
2. Protect the privacy of those who obtain neuroimaging evidence.
   To protect the privacy of individuals who acquire neuroimaging data for legal purposes, there must be clear limitations on the access and use of such data by outside parties. Neuroimaging data could be used by employers or insurers to influence hiring or insurance decisions based on inferences about an individual’s health and mental capabilities. Therefore, a robust regulatory framework modeled after the Genetic Information Non-Discrimination Act of 2008, which garnered bipartisan support (Asmonga, 2008), would help safeguard the collection, storage, and sharing of neuroimaging data, including incidental brain findings, within legal cases. To ensure comprehensive protection, a bill for brain data privacy should be proposed for consideration by relevant committees such as the Senate Committee on Health, Education, Labor, and Pensions. Perhaps Chile’s unprecedented constitutional amendment in 2021 establishing protection for brain information can serve as a reference for brain-specific non-discrimination legislation (McCay, 2022).To ensure compliance with privacy guidelines, strict penalties, such as fines and/or legal repercussions, can be established to deter employers or insurance companies from illegally acquiring and discriminating based on protected brain function findings obtained for legal cases (Jwa & Poldrack, 2002). Federal agencies such as the Department of Health and Human Services and the Equal Employment Opportunity Commission can be tasked with developing and implementing the necessary guidelines for enforcement and compliance.
3. Provide sufficient judicial and juror education on interpreting neuroimaging evidence.
   Judges and jurors are frequently given neuroscientific evidence to consider despite not being properly informed about the underlying technology and its limitations (Wilkinson, 1997). Furthermore, judges are responsible for determining if expert testimony is admissible and may mistakenly deny sound testimony while permitting biased or incorrect testimony (Hans & Saks, 2018). The failure of judges and jurors to correctly evaluate evidence can result in undue weight being given to neuroimaging data solely based on its apparent “scientific” nature (Schweitzer & Saks, 2011; Weisberg et al., 2008). While courts may choose to appoint an expert advisor with specialized knowledge to aid the judge and/or jury in comprehending complex evidence, the appointment process varies across jurisdictions (Rubinfeld & Cecil, 2018). To guarantee consistent and equitable use of expert advisors for neuroimaging data, standardized policies governing their presence and the independent analysis of evidence should be established.

   Judges and jurors are frequently given neuroscientific evidence to consider despite not being properly informed about the underlying technology and its limitations

   Going forward, it is also essential to ensure that basic education is provided for lawyers, judges, and jurors about the use of neuroscience in the legal system, including its potential and limitations. With a better understanding of fundamental scientific concepts (such as the difference between correlational and causative evidence), legal professionals and jurors can then more appropriately interpret and evaluate the significance of neuroimaging evidence. One study from the Australian Institute of Criminology showed that introducing a brief pre-recorded tutorial about DNA testimony improved juror understanding in a simulated trial (Goodman-Delahunty & Hewson, 2010). A similar approach could be employed for educating jurors about neuroimaging evidence.The Federal Judicial Center does provide educational materials covering various topics, including scientific evidence, for legal professionals. Although there exists a neuroscience reference guide for judges (Greely & Wagner, 2011), the most recent edition is over a decade old. Therefore, more up-to-date materials pertaining to the evaluation of neuroimaging data are needed. Similar to the introduction of expert advisors, the specific utilization of educational materials may vary based on the judge’s discretion and jurisdiction-specific rules. To ensure consistency and that a minimum level of juror education is met, it is imperative to encourage standardized guidelines for cases with neuroimaging evidence.

Conclusion

Given the growing number of civil cases, the integration of cutting-edge neuroimaging evidence in courtrooms presents an opportunity to help substantiate brain-related injury claims more effectively. However, if the legal system is to fully embrace the potential of neuroscientific evidence, it is crucial to acknowledge and address the associated limitations and challenges. Neuroimaging, although valuable in many court cases, can also be overly technical, difficult to interpret, or at times inconclusive. An ongoing integration of neuroimaging evidence will require not only adequate funding and privacy protections, but also comprehensive education on its proper interpretation. These actions will allow the legal system to more effectively incorporate neuroimaging evidence, ultimately fostering fairer outcomes in civil cases.

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Written by Kathleen Carmichael

Edited by Shiri Spitz Siddiqi and Lupita Valencia

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