These documents all seek with rights. The rights of crossexamination. The right to be confronted. The right until tonight. We produced of the witnesses in court i learning about the opportunity to crossexamine. All but one. The most devastating witness against my client is not a human being. It is a machine. A computer log of the enterprise. Let me as of this courts adjourn. [captioning performed by national captioning institute] [captions Copyright National cable satellite corp. 2013] i am done. [applause] we have time for one or two questions. I think im going to take one of them. Justice scalias opinion in sharpnd versus king, a instrument or blunt instrument . Questions other than rhetorical. After this you have a break which is probably why there are no questions. You are on break back here at 10 30 a. M. We get back here in about 30 minutes or so. See you here at 10 30. All right. I declare the presence of a quorum. In our next speaker, this is going to move from the Supreme Court to the brain. We think there is a correlation there. Theyre going to be talking neuroscience and what science can tell us about Human Behavior in the ways that may be relevant. Is this on now . And honor to be here with you today. And to have an opportunity to talk to you about Behavioral Sciences are impacting the legal system. This morning you heard about the extraordinary roles of dna, inlysis of bones are playing identifying individuals and identifying criminals in order to cause crime. Im going to shift our focus a little bit to talk about what Behavioral Sciences tell us about why a person has committed a crime. Or not an improved understanding of why people theit crimes or contributions to Human Behavior should impact how we think about responsibilities for criminal conduct and the punishment for criminal conduct. Of all of the risk factors that are most notable for the development of antisocial personality disorder that have a new mode in basis, what is the most predictive seizure is . B y chromosome. B y chromosome. Being a male. Is as a significant biological disadvantage. That this might be part of the explanation to us. What youre looking at here is this. Gene that happens to appear on the x chromosome. It turns out that it is an lot of ourene and a behavior. Why is that . And a lot of our behavior. Why is that . This is essential as an enzyme for the regulation of a lot of neurotransmitters in your brain. Those include things like serotonin, dopamine. They are essential to our happiness, dispositions, ability to control our impulses. It turns out that men are not only a sick to begin to biological disadvantage by the fact that they are man significant biological this advantage by the fact that they are man but it is more likely to appear more likely and the low producing forms and men. Whichis a variation regulates how much is expressed in the body. Because of this, men are more likely to have a lower amount explain which may help some of the differences and the increasing criminality. This is a theory. It is not proven. It has an interesting support. Some researchers published a remarkable study in 2002. The remarkable study showed the first of its kind gene environment interaction. It is not all nature. It is also nurture. Of thebination interaction between the two has never been shown before this study which conclusively show there is an interaction. What you are looking at here is two different lines. Is thisre what you see gray is high. We are looking a antisocial personality. Theres not a huge amount of difference between the low and high activity. There is some difference between the two but not much. You see there is a big difference over here. What is that difference . Nd look at aake a cohort of individuals. This group looked at boys over a 20 year time frame, whether they have been subject to sexual abuse or physical abuse in childhood and the presence or absence of the low form or high form of mono antioxidants. Low and had severe childhood mistreatment that there was a significant, four likelihood that you would be an antisocial individual adults. How do they define antisocial personality . The likelihood of committing either violent offenses or property offenses over time. Is remarkable and interesting. We can actually see that there environmentalnd specific contribution to a particular personality. Even if you do not have the childhood maltreatment, there are still a difference. Member use at gang of weapons. On the left is high activity and on the right is low. There is a big difference between the white bar on the left and right. What is the difference . The likelihood of using a weapon. Memberse cohort of gang they were significantly more likely shes a weapon than those who had high which is a normal phenotype to use a weapon than those who have high which is a normal phenotype. Likely. More the mere presence of the gene matters. Why does this matter to us . It has implications for how we think about individuals who might commit crimes. This is just an example. It is one example of the growing field of behavioral and euros science which looks to genetic andhe biological contributions to behavior. Thingss out these two are quite related. In many criminal trials across countries and in pretrial negotiations, criminal defendants are coming in and saying do not blame me, blame my genes or my brain. Yourme ways, of course brain made you do it. What does that mean . What does it mean to try to say there is Something Different about your brain then your decisionmaking, processing of the information and deliberative and rational thought. Should it matter to our criminal Justice System . Looking at the increase of incidents of criminal defendants coming into the criminal court and introducing evidence about their biological or an urological predisposition to behavior. This is also about predisposition. Theres a correlation between a genetic difference and an agical difference neurological difference. The curves that you see there is what it would look at if it was an exponential increase. 2005, 2006, 2007 there are about 100 cases. Most of your recent year is 300 cases. The most recent year is 300 cases. Defendant coming into a courtroom and using evidence from behavioral genetics from neuroscience to decrease the responsibility or punishment for a crime. That is a tiny subset of the world. 10 of criminal cases only make it to trial. Only 1 ever make it to appeal. The number of them that actually discussed the neurological evidence is even smaller. They will not tell me what the inclusion price is. Talk to Defense Attorneys the more they tell me thisin the pretrial phase evidence is being used to try to plea for a lesser offense or punishment. Having an increased role. In what way . Prevalent is in cases of homicide. In Death Penalty cases this is where i first showed up. In the sentencing phase of a capital phase a criminal defendant tried to present as mitigating evidence that they should be treated less harshly because of their genetic and urological predisposition. They have less control over their behavior less culpable therefore they should not get this. If you look at this chart, you will see there are many other offense types that are on here. From felony murder to child , across thecking gamut defendants are coming into the courtroom and introducing evidence that they are a genetics or their brain helps to explain why they behaved to the way that they did. Here juste chart shows you that the majority of these cases are now becoming neurological cases. These are intricately related. The blue bar in the front is just genetic evidence. The red bar in the back is an urological evidence. Neurological evidence. What kind of claim are they making . The biggest bar is mitigation. Which makes sense. It started as a punishment theory. There are some other surprising features which i will go into with some illustration of the cases. In competency cases it is showing up all the time. In challenges to the mental state of the individuals there are claims about whether or not the person had the ability to have the mental state necessary to commit the crime. The gamut. S it is not just a punishment theory anymore. That is where i want to start. I just started by criminal law class this past week. The first day of criminal law what i always do is have a conversation with students about why do we punish criminals. We hold people accountable for their actions . Is it just an eye for an eye . Is it retreated. . Base theirerrent to he . Are we doing it for the utilities of society to safeguard individuals . It trying to reintegrate people into societies . Our answersrs are coming from neuroscience. How we answer why we punish should help us determine what the role this evidence should play in the criminal Justice System. Thereeath penalty case was a criminal defendant who came in and he said the reason i acted the way that i did was because of a serotonin deficiency that i had. That is the respective and the homicide. That is a true jewel to my genetic predisposition. Attribute a bowl to my genetic predisposition. He said after my arrest, this was discovered. I started prescription medication. My behavior change. My behavior changed so much that the Death Penalty was not warranted because my aggressive behavior was genetic. It is now treated. It is a treatable condition. I am not the worst of the worst kind of criminal offenders. Retributive theory it is based on the moral culpability of the offender. If they person has less control are they less morally culpable . Is there a current value and executing executing them . Is a question that is showing up repeatedly in quite a few cases. Quite a few were ineffective. The answer seems to be at least from the Supreme Court that failing to investigate in urological basis for a persons behavior does constitute an effective counsel. No investigation for a persons behavior in many cases that constitutes this counsel. Not sure if it is this cumulative. They tried to show that the person was had some Mental Health component to their behavior. A complete failure seems to be problematic. Say thisright to evidence is mitigated . If a defendant comes in and says i cannot control my behavior, i cannot stop myself from killing people or from committing crimes , is that a sympathetic claim . Going to think then you should go back on the street . Probably not. Is welly question before we have an answer. In this case they refuse to cooperate with the introduction of mitigating this on their capital sentencing phase of the trial. Later after refusing, he says i an assistance to counsel because they did not present any mitigating evidence on my behalf. You do not let them. It goes up to the ninth circuit. I would have cooperative. My father was violent. My grandfather was violent. There is a heritable basis for the violence in our family. Said we thinkuit it is probably pretty unlikely that if the jury had heard a violenthat he was killer whos genetically programmed to be violent from the fact that he comes from a long line of violent killers that it would be all that compelling. United state the Supreme Court. Is this mitigating . What is this . The court did not have to resolve that question in this case. It inere able to resolve the other issue. Can he voluntarily waive your rights . Yes. He loses. He did say we are not sure it would be all that helpful. It turns out that they could have picked up on this. There are cases where the issue is civil commitment. Is there a biological basis that makes it likely they will do the bases for and definitely committing a person . Some of the evidence theyre introducing at trial is now showing up in the basis. Is it aggravating . It is hard to know. The theory seems to be based on this idea that our genetics and neurological predispositions rob us of free will. By were to ask you to raise your right hand, many of you might be able to do so. Many might refuse. Use that example . You have the capability of deciding to engage in simple action. Is it right to say that because i cant describe genetically your behavior and some of the causal contributions that you do not have the ability to make theces that seems to be theory that criminal defendants are introducing. They are saying that it is not voluntary. I am like an atomic tom. Automaton. I explained the concept. I explained the concept of involuntary nantz involuntariness. We just sleepwalking through life . That is seems to be what a lot of criminal defendants are saying. Theyre acting out of reflex or compulsion. Is a really interesting area. There is strong evidence there is a significant predisposition to becoming addicted. You have your first hit of the tog you are more likely become addictive than the next person. It makes it harder to resist afterward. Unless you actually do with one of the tests. It also look at your Family History. This is showing up a lot. The idea is the same kind of in voluntariness. I cannot voluntarily waive my it was involuntary. My brain made me do it. I cannot have the capacity to do otherwise because i hit my head in means it is not the same. Evidence shows up in the criminal courtroom. In one case, a defendant comes in. It was a genetic and neurological basis. The court says we agree he never and was unable to exercise free choice regarding drugs. We are not there would neuroscience yet. Cannot explain 100 your behavior. For theyou need to have criminal Justice System to think that you have voluntarily acted with the requisite mental states in order to be convicted of a crime . This shows up a lot. It is an interesting area where it seems to be gaining traction in court. Ordinarily i would not have a legal basis to doing so. This shows that i cannot voluntarily waive my rights. The of the problems is difference between an objective observation and neurological evidence. Normal. Introduces these are issues we are going to the perceptions of behavior. Should we care . It shows up in many cases the claims for unintentional a la intention un intentionality. This is a tough sell. This is an interesting concept. You pull aat which trigger, did you intend to pull the trigger . Is it a fully knowledgeable fractional irrational action . A lot of criminal defendants are saying it was not in my biological evidence shows this to be true. It seems to gain this. In juveniles, they are more impulsive. Part of the explanation is the frontal lobe region of the brain is not fully developed. It is essential for executive functioning, for planning, for premeditation. With many agiles there are also deficiencies in the frontal lobe. Theyre appearing in your brain. Does it matter . Does this tell us about the moments in which a person decided to pull the trigger of a gun . Us ats determinative for that moment in time . This is genotyping them. To find out if they have the ammunition they say and another , the serotonin gene, theyre going into criminal cases. Was convicted of Second Degree murder. He testified that the defendant have those serotonin levels and the capacity to control impulses was virtually nonexistent. He refuses to challenge the. Ental state theyre trying to mitigate the senate. It did not work in this case. It has worked in a lot of cases. Difference than the neurological evidence. Were taking into a place, pulling the trigger, saying di e. Were going to have to square them. Tells you the chart and how it is burying. The red bar is bad for criminal defenses. Criminalood for the defendants. Wherever you are you should see a lot of red. You should see a little bit of blue. This is around mitigation. There is some aggravation. Is that working. This is a subset of cases. In much the much more effective than pleabargaining. It may never get to trial. At least in the cases that i am looking at it is not having a huge impact. So, it is an issue that we are going to have to addressed. Addressed. In conclusion, the use of this is rapidly expanding, and we are going to have to figure out what it means for the concept of punishment. In sentencing,p but also pretrial, trial and sentencing. Ourauses us to reevaluate norms in terms of holding a person responsible and punishing them. And it is increasingly an behavior across the law. One area i would address but we can talk about in questions and this isis whether essential and civil society. It can be used to substantiate injuries. You can look at a persons brain and see if they have a headache, if they actually have pain. There have been fascinating studies that show you can cease you can senior a logical you can see neurological indicators of pain. This is evidence we are going to have to address. We have to think about the role this in criminal justice and the civil system. Thank you, and i look forward to your questions. We have time for one or two questions. Although you will get another chance and about half an hour. Questions . They are all saving them for the whole group. Off, we have a question coming. Marching down the aisle. I have no choice. Thank you for the wonderful discussion. I am an addiction psychiatrist. I do have some of these cases, and i do some talking about this as well. One of the problems in a lot of inse cases is that voluntariness, as you said, is really defined, but there is a difference between having a hard choice and having no choice. Richard bonnie first but for that distinction, and i think it is really, really useful. I wonder if you would comment on that. Exactlynk that is right. We treat it as black and white, voluntary or involuntary, not that there are shades of gray of well, it was voluntary but a harder choice. And that is because in criminal law we treat people according to the norm. We say if you are able to reach that norm, great. If you fall below it, you do so at your own peril. Are going to have to reevaluate that now that we have much better evidence that some people really cannot live by that standard. And it goes to our question about the theory of punishment. Why do we punish people . Civility, for safeguarding society . These shades of gray that science is aching apparent now are things we are really going to have to think about. Thank you, nina. Great job. Give me 15 minutes. I do not know if your last speaker needs an introduction, but he is not going to get one. It is me. So far, we have heard people talk about science largely in the court room context. I want to open up the frame and talk about how genetics in particular are going to change our world in a way that will have some effect in courtrooms and in law. Asse of you who are here judges or lawyers or spouses and partners of judges and lawyers will see some of this professionally firsthand or secondhand. This is also going to have an enormous effect on each of us as patients, as citizens, as parents, and grandparents, a