Mastering a New Language
The ability to understand and interpret scientific data has become an important skill for lawyers — and critical to the clients and communities they serve.
More than 15 years after he was sent to death row for murder — a killing the judge at his trial described as particularly cruel — science saved David Scott Detrich from execution.
On Nov. 4, 1989, after drinking heavily for several hours, Detrich sexually assaulted a woman he and a co-worker had picked up near Tucson, Ariz. He then slit her throat, stabbed her more than 30 times, and the two men abandoned her mutilated body in the desert. After one mistrial, a jury convicted Detrich of first-degree murder, and in 1995 he was sentenced to death. But in 2010, the U.S. Court of Appeals for the Ninth Circuit held that at the trial’s penalty stage, his lawyer had been negligent in failing to fully investigate and present mitigating evidence that likely would have spared Detrich the death penalty: brain damage and neuropsychological dysfunction caused by childhood neglect and abuse.
The opinion is one of a number of rulings that show that neurobiological evidence is becoming firmly entrenched in criminal courtrooms, says Professor Nita Farahany ’04. “Without investigating a neurobiological defense, lawyers run the risk of being seen as ineffective as if they had failed to mount a defense at all, or had slept through the entire trial,” she says.
— Professor Nita Farahany ’04, Without investigating a neurobiological defense, lawyers run the risk of being seen as ineffective as if they had failed to mount a defense at all, or had slept through the entire trial.”
director of the Duke Initiative for Science & Society
In an empirical study reported in the January issue of the Journal of Law and Biosciences (a journal that is a collaboration between Duke Law School, Harvard Law School, and Stanford Law School and published by Oxford University Press), Farahany found that the number of cases in which judges cited evidence in their opinions related to the brain and the nervous system — neurobiology — increased from 112 in 2007 to more than 300 in 2012. The study, the first comprehensive review of its kind, found lawyers used such evidence to address a defendant’s competency to plead guilty or confess and mental state during the commission of the crime, and as mitigating evidence in sentencing, among other uses.
The ability to understand and interpret scientific data has become an important skill for lawyers engaged in criminal and civil cases, even for those who have consciously avoided science-heavy fields such as intellectual property, health care, environmental, and regulatory law. That development was a major impetus for the founding of the Duke Initiative for Science & Society (Science & Society), which engages faculty and students across a range of disciplines in addressing the legal, ethical, and policy implications of scientific and technological advances. Farahany, who holds a joint appointment in law and philosophy and is a member of the Presidential Commission for the Study of Bioethical Issues, directs the cross-campus initiative, and 10 Duke Law faculty participate in related research and inquiry. In addition, seven Duke Law students are pursuing a new master’s degree in bioethics and science policy offered through Science & Society concurrent with their JD, becoming well-versed in scientific principles and their societal implications, and learning how to communicate essential information to clients, policymakers, and courts.
“Many aspects of legal practice now require you to have the ability to understand science and be able to talk to experts,” says Michael “Buz” Waitzkin, deputy director of Science & Society, who advised clients in the biomedical research community on issues relating to legal and regulatory strategy and ethics during his 35-year law practice in Washington, D.C. “Regardless of whether you are in private practice, the nonprofit sector, or government, science is a very important issue. We think it is important to teach lawyers how to engage scientific experts, and teach scientists not just how to do bench science but also how to convert their findings into a language that lawyers can use.”
Farahany, who has extensively studied the legal, social, and ethical application of the biosciences, believes neurobiology, in particular, has the potential to generate profound insights into human behavior, motivation, intention, and action. But she is also wary of its limitations.
“Neurobiological evidence has profound implications for some of the most significant decisions we make in law and policy,” she explains. “It’s time we better understand how science is being used in the legal system, and start to address how it may be better used across law and policy.”
— Senior Lecturing Fellow Michael “Buz” Waitzkin, deputy director of the Duke Initiative for Science & Society
Because the courts clearly play an important role in crafting policy, our goal is to ensure they rely on accurate science when making decisions.”
Befriending the courts
A course called the Amicus Lab, introduced at Duke Law in the fall semester as a collaboration with Science & Society, launched the effort to evaluate and translate science for the courts. Under Waitzkin’s direction, the class of five law students and two bioethics and science policy graduate students produced source material to help lawyers writing amicus briefs address the use of emerging technologies.
The class was based on the assumption, which Waitzkin admits is somewhat heretical for a longtime litigator, that the adversary system does not offer the courts unbiased, accurate information. Although the practice of non-parties contributing to the decision-making process as amici curiae is one of longstanding, over the last century their briefs have become ever-more numerous and partisan, with many reflecting the vested interests of the filing scholars, groups, and individuals in the outcome of particular cases. For example, Waitzkin says many of the 82 amicus briefs filed with the Supreme Court in Burwell v. Hobby Lobby, in which private employers successfully sought an exemption on religious grounds from the Affordable Care Act’s mandate to offer contraception coverage in health insurance, were submitted by doctors and women’s organizations, theologians, and religious groups aligned with one side or the other.
“[Filing briefs] has now gotten to be a cottage industry,” says Waitzkin. “The Supreme Court is increasingly relying on amicus briefs for its facts. If we could create an entity that everyone agrees has no stake in the case and is only motivated by the desire to provide an update on where the science actually stands, that would be a very important contribution.”
During the Amicus Lab’s inaugural semester, three student teams each tackled a different subject: the use of DNA from crime- scene evidence to create facial reconstructions of suspects as the basis for probable cause for an arrest; the usefulness of a technology called quantitative encephalography (qEEG) as a diagnostic test for brain injury after concussion or traumatic brain injury; and the potential of a technique called functional magnetic resonance imaging (fMRI) as a more accurate means of lie detection. The teams studied the technology, identified cases where it appeared in the judicial system, and offered an opinion as to whether or not it should be admissible in future cases.
On one team, Melany Cruz Burgos and Bob Zhao, second-year law students who are both also pursuing the MA in bioethics and science policy, along with MA candidate Darrell White, assessed the potential for fMRI brain scans to catch people in a lie. In presenting their white paper to their classmates late in the semester, Zhao, who holds an undergraduate degree in psychology and neuroscience, was charged with explaining how the fMRI works: When a neuron fires, it needs to replenish its energy, which it takes in the form of oxygen delivered through the bloodstream; because fMRI can indirectly assess neural activity by measuring changes in the concentration of oxygen in the blood, it can be used to pinpoint what brain regions are responsible for particular behaviors. Scientists have implicated hundreds of different regions in lying using fMRI. But the team pointed out that, to the extent demanded by judicial evidentiary standards, the brain regions or patterns responsible for lying have not been firmly established. “There is no evidence that current fMRI lie detection tests can consistently and accurately capture deception in real-world settings,” said Zhao. For that reason, the students concluded that fMRI as a lie detection test isn’t ready for the courtroom.
Their report, as well as those of the other Amicus Lab teams, became the first entries in a library of white papers that will be updated and supplemented as new research and technologies emerge. Waitzkin thinks that creating the resource could give lawyers facing a tight filing deadline a head start in drafting briefs around the merit of new technologies.
"This is all an experiment,” says Waitzkin. “We are testing a hypothesis to see if this can be done, if can it be done well, and if the courts will acknowledge it. Because the courts clearly play an important role in crafting policy, our goal is to ensure they rely on accurate science when making decisions.”
Learning the language
Cruz, who entered the dual-degree program as soon as it was established in 2015, says she relishes the opportunity to help law- and policymakers understand the full implications of science and technology, which, like law itself, can be opaque.
A native of Puerto Rico who moved to New Jersey as a first-grader, Cruz was drawn to become a lawyer after a high-school friend’s father was unable to navigate the immigration law system and was deported. “He was an outstanding person and was probably eligible for some kind of reprieve,” she says. “I suddenly realized there was this need for translation of the law, which is really a language in and of itself.”
Having grown up in the shadows of drugmakers like Bayer, Johnson & Johnson, and Merck, she also wondered about ethical issues that arise in the pharmaceutical and health care industries: How are participants treated in clinical trials? What is informed consent, really? What obligations do health insurance companies have to their enrollees? Cruz’s MA concentration on health law and policy allows her to delve deeply into those questions and lay the groundwork for her long-term plan: crafting a career at the intersection of bioscience and health care.
Zhao also enrolled in the dual-degree program in his first year after finding that his interests point to a career in Silicon Valley, which he calls “the epicenter of science, business, and innovation.”
“It was the perfect opportunity to learn why laws are structured this way and the policy considerations behind each statutory sentence,” says Zhao, who is co-president of the Health Law Society and a staff editor on the Duke Law & Technology Review, as well as a member of the Intellectual Property and Cyberlaw Society. Bound for a 2L summer position at Simpson Thacher & Bartlett in Palo Alto, Calif., Zhao believes his focus on science and bioethics will be an asset in representing technology companies, whether in helping to launch a start-up, negotiating mergers, prosecuting patents or litigating infringement cases, or advising on regulatory and privacy issues.
“Even more important,” he says, “is understanding how the statutes are flawed: what they failed to consider, what they cannot have anticipated, and the challenges presented by such gaps. How do legislatures, courts, and businesses keep up and adapt in a world where advances in science and technology are far outpacing our ability to fully understand their implications? This is the big question I hope to explore, and something we as a society will have to learn to navigate.”
JD/MA candidates work towards their degrees over three years and one summer, taking 75 credits at Duke Law and 30 in the graduate school, where the curriculum includes five core courses and four electives selected from dozens of options. Students can choose to pursue a specialized concentration in health law and policy or another in intellectual property, or they can build one to suit their interests. Each also spends the summer after the first year working on a capstone project, which can be a research paper on a specific issue in bioethics or science policy or a practicum in the field.
During her 1L summer, Cruz worked on criminal and civil investigations in the Health Care and Government Fraud Unit of the U.S. Attorney’s Office in Newark. One case involved a laboratory diagnostics company that was charging customers to have their blood work analyzed by licensed professionals when it was in fact being read by employees who did not have the appropriate certification. Zhao spent his summer practicum at j2 Global, Inc., an internet services company in Los Angeles, where he gained broad transactional experience in software licensing and the merger and acquisition of technology companies, assisted in an ongoing trademark infringement case, and helped craft policy relating to health privacy compliance procedures required by federal laws as well as anti-spam policies that integrated international regulations.
The path that Cruz and Zhao are taking did not exist when Farahany entered law school with an undergraduate degree in genetics, cell, and developmental biology from Dartmouth College. Interested not only in how research in science and technology could deepen the understanding of the natural world but also how they can improve institutions dedicated to health, law, and public safety, she ended up designing her own course of study connecting science, policy, and ethics, earning an MA in philosophy along with her JD, and staying on to complete her PhD.
“Rather than having lots of students create an ad hoc way of getting there like I did, I thought I could use the benefit of hindsight, and my own understanding of what pieces are necessary, to gain the expertise to work at this intersection, to create a combined degree program that gives students at Duke that same opportunity,” she says.
Shaping the debate
Today, Farahany is a sought-after public commentator on issues ranging from the ethics of mail-order genomics testing to whether colleges should allow students to take so-called “smart pills” to boost academic performance. She gives talks regularly at judicial conferences, has spoken at the World Economic Forum in Davos, and has testified on Capitol Hill on such policy matters as the implications of facial recognition technologies for privacy and civil liberty. And she’s not alone within Science & Society: Many of the initiative’s affiliated faculty are active in public discourse about science policy decisions being made through legislative, regulatory, and executive action.
In November, Science & Society launched a website that tracks science-related bills and policy proposals, the first undertaking of its kind. Modeled after Politico Pro, a subscription-based policy news service popular among federal agency personnel, the site employs a team of Duke faculty and law and graduate students to scour proposed policies and create easily digestible summaries on what they seek to accomplish, who endorses and opposes them, and their likelihood of adoption. The briefs analyze and explain the science underlying each policy, a feature designed to influence debate, says Farahany. As with the Amicus Lab and other programs within Science & Society, the goal of the Science Policy Tracking site (sciencepolicy.duke.edu), “is to position Duke as a neutral and educational translator of what’s happening in science for legal and policy decision-makers,” she says.
The site also covers news and upcoming events, such as congressional hearings and calls for public comment, and lists influential policymakers on matters of science and technology. Recent briefs have looked at the Corolla Wild Horses Protection Act, DNA Testing in Refugee Family Reunification, the Safe and Accurate Food Labeling Act of 2015, and Federal Motor Vehicle Safety Standards for Motorcycle Helmets. Currently, the program is tracking developments in two key areas: neuroscience and genetics and genomics. In the future, the team plans to expand to other topics, including health policy, engineering, environment, and energy.
Waitzkin believes the Science Policy Tracking site offers students, scientists, lawyers, policymakers, and ordinary citizens a unique source for objective, unbiased information about society’s most pressing science policy issues. As it develops, he hopes the resource will help increase citizen interest in policymaking.
“Somebody can keep current on what’s bubbling along in Washington, not after it’s passed but while it is actually in process and they can elect to participate,” says Waitzkin. “If you conduct related research, are passionate about specific topics, or perhaps work for a small company that doesn’t have the wherewithal for lobbyists or government affairs staff, you can use this resource to track what is happening at a government level.”
Exploring new frontiers
In addition to keeping track of current policy debates, collaborative working groups across Duke are looking at options for regulating emerging technologies.
The Science, Law and Policy Lab (SLAPLAB), another core initiative of Science & Society, connects faculty, post-doctoral researchers, and students across disciplines to investigate how science interacts with law and policy. The SLAPLAB recently initiated five projects exploring how disruptive technologies like 3D printing and self-driving vehicles might be regulated. Each team is working to devise a model of governance for its particular technology, and then the entire group will gather to look for commonalities in their approaches that could be adapted or directly applied to other areas of innovation.
“We have to create regulations that work in the context of unknown risks and developments that don’t exist with current technologies,” says Farahany. “If we have a set of principles to start with that can guide us in regulating a new technology, we don’t have to reinvent the wheel every time something new like gene editing or bioterrorism tools come along.”
Several members of the Duke Law faculty are engaged in research aimed at improving decision-making in a range of disciplines related to science, law, and policy. For example, Perkins Professor of Law and Professor of Environmental Policy and Regulatory Policy Jonathan Wiener, whose expertise lies in risk analysis and decision-making, studies how these factors feed into environmental protection and regulatory oversight. James Coleman, the John S. Bradway Professor of the Practice of Law and director of the Center for Criminal Justice and Professional Responsibility, and Neil Vidmar, the Russell M. Robinson II Professor of Law and Professor of Psychology, study the legal, political, and scientific causes of wrongful convictions.
Discussions with Coleman and Vidmar about the accuracy of eyewitness testimony so intrigued veteran Duke neurobiologist Pate Skene about the ways brain science and law could interact that he decided to pursue a JD at Duke Law in 2010. Skene, who continued his neurobiology research throughout law school, now studies the neural mechanisms involved in making legal decisions, an area of inquiry that didn’t even exist when he began his science career 40 years ago. “We can now study fundamental things like decision-making in a biological sense that we couldn’t when I got my first degree.”
— Duke neurobiologist Pate Skene ’14, a Science & Society affiliate We want to know how people weigh various pieces of evidence when making a decision. It’s hard enough to test experimentally, but it’s in a way the simplest kind of question you might want to ask in law.”
Skene’s current study stems from a first-year Torts lecture in which Professor Donald Beskind ’77 discussed different factors likely to influence a person who is evaluating a claim. Skene immediately recognized that neurobiology could provide a vehicle to study those different factors and to deduce how important each one might be in shaping the person’s final decision. After examining the question further with Beskind, Vidmar, and Duke neuroscience colleague John Pearson, they opted to collaborate on a related investigation: how people evaluate guilt in the context of a criminal trial.
“We want to know how people weigh various pieces of evidence when making a decision. It’s hard enough to test experimentally, but it’s in a way the simplest kind of question you might want to ask in law,” says Skene.
In the study, participants read a short description of a crime and use various pieces of information, such as eyewitness testimony, DNA evidence, or prior convictions, to decide whether a suspect is guilty. In addition to determining guilt or innocence, the participants answer other questions about the strength of the case or the individual pieces of evidence, what they think about the crime, and how much punishment it deserves. Over 1,000 people have gone through the process, each one assessing 33 different crime scenarios with 18 different possible combinations of evidence. The research team then applies a statistical modeling method to their responses to tease out how much weight people give to each piece of information. A subset of the subjects also undergo brain scans.
Skene, now a Science & Society affiliate, says the most recent analysis has yielded a few surprises — for one, that the more serious the crime, the more likely the participants were to find the suspect guilty. That result runs counter to the traditional aspirational view of the law, which suggests that people are more careful when deciding a verdict for crimes that carry stiffer penalties, he says. He suspects psychology plays a role by priming people to punish a crime when they perceive a dangerous threat to the community. The results of the brain scans could generate further insight into those motivations.
An ongoing dialogue
Understanding why humans behave the way they do is one of mankind’s greatest questions. On its face, the pursuit might seem scientific, but it is also now commonplace in the practice of law, whether it is in preparing a witness, crafting an argument, resolving a dispute, or establishing a policy. Advances in neuroscience, genetics, psychiatry, and psychology promise to give even greater insight into what makes people tick.
But Farahany warns that the latest tools of science are still in their infancy. Scientists must continue to perfect their methods so they can be ready for the courtroom or the legislative chamber. And lawyers must be careful not to over-hype new technologies. Farahany has called for “nuanced dialogue” between neuroscientists, advocates, judges, and the public about the role of neurobiological evidence in the legal system and its limitations, as well as its potential to generate profound insights into human behavior, motivation, intention, and action.
In her contribution to the second volume of “Gray Matters,” a report from the Presidential Commission for the Study of Bioethical Issues that focuses on the ethical issues associated with the conduct and implications of neuroscience research, Farahany stresses that current technology is most powerful when used not to show why any one individual has made a choice but why people in general make choices. Neuroscience research has, for example, linked the activity of specific regions of the brain with impulsive behavior. That doesn’t mean a brain scan can indicate that a criminal defendant acted impulsively. However, it could demonstrate that juveniles have less development in the frontal lobe region of the brain that makes them more likely to be impulsive as a group, which could enable lawmakers and policymakers to think about how they structure the juvenile justice system.
One of the report’s goals was to “shift the conversation away from the traditional way neuroscience is used in criminal law, to show the myriad ways that it could or that it does influence the legal system,” says Farahany, who notes that presidential commission reports tend to be highly influential policy guides. “At the same time, having unrealistically high expectations of new science and technology can make people lose faith in the system when those expectations aren’t met. That’s why we have called for more research on the use of neuroscience in legal decision- making and policy development.
“When used wisely, science has great potential to improve accuracy and decrease errors in the legal system,” she says. “I think science and law could be much stronger partners than they are today.”
— Marla Vacek Broadfoot