Applications of neuroscience in criminal law: legal and methodological issues.

The use of neuroscience in criminal law applications is an increasingly discussed topic among legal and psychological scholars. Over the past 5 years, several prominent federal criminal cases have referenced neuroscience studies and made admissibility determinations regarding neuroscience evidence. Despite this growth, the field is exceptionally young, and no one knows for sure how significant of a contribution neuroscience will make to criminal law. This article focuses on three major subfields: (1) neuroscience-based credibility assessment, which seeks to detect lies or knowledge associated with a crime; (2) application of neuroscience to aid in assessments of brain capacity for culpability, especially among adolescents; and (3) neuroscience-based prediction of future recidivism. The article briefly reviews these fields as applied to criminal law and makes recommendations for future research, calling for the increased use of individual-level data and increased realism in laboratory studies.

Detecting knowledge of incidentally acquired, real-world memories using a P300-based concealed-information test.

Autobiographical memory for events experienced during normal daily life has been studied at the group level, but no studies have yet examined the ability to detect recognition of incidentally acquired memories among individual subjects. We present the first such study here, which employed a concealed-information test in which subjects were shown words associated with activities they had experienced the previous day. Subjects wore a video-recording device for 4 hr on Day 1 and then returned to the laboratory on Day 2, where they were shown words relating to events recorded with the camera (probe items) and words of the same category but not relating to the subject's activities (irrelevant items). Electroencephalograms were recorded, and presentation of probe items was associated with a large peak in the amplitude of the P300 component. We were able to discriminate perfectly between 12 knowledgeable subjects who viewed stimuli related to their activities and 12 nonknowledgeable subjects who viewed only irrelevant items. These results have strong implications for the use of memory-detection paradigms in criminal contexts.

Review of recent studies and issues regarding the P300-based complex trial protocol for detection of concealed information.

In this review, the evolution of new P300-based protocols for detection of concealed information is summarized. The P300-based complex trial protocol (CTP) is described as one such countermeasure (CM)-resistant protocol. Recent lapses in diagnostic accuracy (from 90% to 75%) with CTPs applied to mock crime protocols are summarized, as well as recent enhancements to the CTP which have restored accuracy. These enhancements include 1) use of performance feedback during testing, 2) use of other ERP components such as N200 in diagnosis, 3) use of auxiliary tests, including the autobiographical implicit association test, as leading to restored diagnostic accuracy, and 4) a study of the mechanisms underlying CMs. A novel, doubly efficient version of the CTP involving presentation of two probes in one trial is described as a new way to improve accuracy to levels above 90% in mock crime situations. Finally, a thorough analysis of the legal issues surrounding use of the CTP in U.S. is given.

P900: a putative novel ERP component that indexes countermeasure use in the P300-based concealed information test.

Countermeasures pose a serious threat to the effectiveness of the Concealed Information Test (CIT). In a CIT experiment, Rosenfeld and Labkovsky in Psychophysiology 47(6):1002-1010, (2010) observed a previously unknown positive ERP component at about 900 ms post-stimulus at Fz and Cz that could potentially serve as an index of countermeasure use. Here, we explored the hypothesis that this component, termed P900, occurs in response to a signal that no further specific response is required in a trial, and could thus appear in countermeasure users that respond differentially depending on the stimulus that appears. In the present experiments, subjects viewed four non-meaningful (irrelevant) dates and one oddball date. In three experiments, we examined P900's antecedent conditions. In the first, the unique item was a personally relevant oddball (the subject's birthdate). In a second, the unique item was a non-personally relevant oddball (an irrelevant date in a unique font color). In a third, all dates were irrelevant. We speculated that the presence of an oddball would not be necessary for P900. All participants made countermeasure-like responses following two specific irrelevant dates. As hypothesized, P900s were seen to non-responded-to irrelevant and oddball stimuli in all subjects but not to responded-to irrelevant stimuli, and the presence of an oddball was not necessary for elicitation of P900. This finding has potential application in deception settings-the presence of a P300 accompanied by the presence of a P900 in response to non-countered stimuli could provide evidence of incriminating knowledge accompanied by the attempt to use countermeasures to evade detection.

A novel countermeasure against the reaction time index of countermeasure use in the P300-based complex trial protocol for detection of concealed information.

A P300 deception detection protocol was tested using simultaneous versus serial countermeasures and stimulus acknowledgment responses. Previously, P300 showed recognition and elevated reaction time identified countermeasure use. Probe-irrelevant P300 differences were significant in both countermeasure groups and control group. Detection rates were 11/12 for controls, 10/12 for serial countermeasure users, and 11/13 for simultaneous countermeasure users. Reaction time detected countermeasure use in serial responders, but not simultaneous responders. The simultaneous response reaction times were indistinguishable from controls.

A mock terrorism application of the P300-based concealed information test.

Previous studies examining the P300-based concealed information test typically tested for mock crime or autobiographical details, but no studies have used this test in a counterterrorism scenario. Subjects in the present study covertly planned a mock terrorist attack on a major city. They were then given three separate blocks of concealed information testing, examining for knowledge of the location, method, and date of the planned terrorist attack, using the Complex Trial Protocol (Rosenfeld et al., 2008). With prior knowledge of the probe items, we detected 12/12 guilty subjects as having knowledge of the planned terrorist attack with no false positives among 12 innocent subjects. Additionally, we were able to identify 10/12 subjects and among them 20/30 crime-related details with no false positives using restricted a priori knowledge of the crime details, suggesting that the protocol could potentially identify future terrorist activity.

Lying in the scanner: covert countermeasures disrupt deception detection by functional magnetic resonance imaging.

Functional magnetic resonance imaging (fMRI) studies have documented differences between deceptive and honest responses. Capitalizing on this research, companies marketing fMRI-based lie detection services have been founded, generating methodological and ethical concerns in scientific and legal communities. Critically, no fMRI study has examined directly the effect of countermeasures, methods used by prevaricators to defeat deception detection procedures. An fMRI study was conducted to fill this research gap using a concealed information paradigm in which participants were trained to use countermeasures. Robust group fMRI differences between deceptive and honest responses were found without, but not with countermeasures. Furthermore, in single participants, deception detection accuracy was 100% without countermeasures, using activation in ventrolateral and medial prefrontal cortices, but fell to 33% with countermeasures. These findings show that fMRI-based deception detection measures can be vulnerable to countermeasures, calling for caution before applying these methods to real-world situations.

Countermeasure mechanisms in a P300-based concealed information test.

We recently introduced an accurate and countermeasure (CM)-resistant P300-based deception detection test (J.P. Rosenfeld et al., 2008). When subjects use CMs to all irrelevant items in the test, the probe P300 is increased rather than reduced, as in previous P300-based deception protocols, allowing detection of CM users. Evidence herein suggests this is partly due to an omit effect; the probe was the only uncountered item. Three groups were tested: a guilty omit probe group performed an explicit response to each irrelevant item but not to the probe, an innocent omit irrelevant group saw only irrelevant items and omitted a response to one item, and a guilty no omit group had a concealed information item as probe and performed an explicit response to each. We found a greater P300 amplitude to probes in the guilty omit probe condition as compared with the other two conditions, indicating a P300 enhancing effect of omitting a response to a single stimulus.

Assigned versus random, countermeasure-like responses in the p300 based complex trial protocol for detection of deception: task demand effects.

We recently introduced an accurate and countermeasure resistant P300-based deception detection test called the complex trial protocol (Rosenfeld et al. in Psychophysiology 45(6):906-919, 2008). When subjects use countermeasures to all irrelevant items in the test, the probe P300 is increased rather than reduced (as it was in previous P300-based deception protocols), allowing detection of countermeasure users. The current experiment examines the role of task demand on the complex trial protocol by forcing the subject to make countermeasure-like response to stimuli. Subjects made either a simple random button response to both probe and irrelevant stimuli (experiment 1) or a more complex, assigned, button response to probe and irrelevant stimuli (experiment 2). We found that an increase in task demand reduced the effectiveness of the test. Using random responses we found a simple guilty hit rate of 11/12 with no false positives, but only a 4/11 hit rate for countermeasure-users. Using assigned responses we found a simple guilty hit rate of 8/15 with no false positives, and a 7/16 hit rate for countermeasure-users. We herein suggest that the high level of task demand associated with these countermeasure-like responses causes reduced hit rates.

The effects of asymmetric vs. symmetric probability of targets following probe and irrelevant stimuli in the complex trial protocol for detection of concealed information with P300.

The complex trial protocol (CTP, [J.P. Rosenfeld, E. Labkovsky, M. Winograd, M.A. Lui, C. Vandenboom & E. Chedid (2008), The complex trial protocol (CTP): a new, countermeasure-resistant, accurate P300-based method for detection of concealed information. Psychophysiology, 45, 906-919.]) is a sensitive, new, countermeasure-resistant, P300-based concealed information protocol in which a first stimulus (Probe or Irrelevant) is followed after about 1.4-1.8 s by a Target or Non-Target second stimulus within one trial. It has been previously run with a potentially confounding asymmetric conditional probability of Targets following Probes vs. Irrelevants. This present study compared asymmetric vs. symmetric conditional probability groups and found no significant differences in detection rates or Probe-minus-Irrelevant P300 differences between groups. Group differences were seen in error rates and reaction times (RT) to second stimuli. These differences were, however, not diagnostic for deception vs. truth-telling, and were attributable to response perseveration.