Neuroimaging: Correlation, Validity, Value, and Admissibility: Daubert—and Reliability—Revisited

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Notes

As based upon Daubert v. Merrell Dow Pharmaceuticals Inc. 509 U.S. 579, 589 (1993), vide infra.

While attempts to date using fMRI for deception detection have been highly criticized, and deemed inadequate, ongoing efforts are dedicated to more accurately defining both how veracity and deception may be processed by various neural networks, and how such network activity patterns could be assessed using extant or newly developed neurotechnological means. Simply put, as representative of the heuristic engagement of tools and theories in neuroscience, the more that is known about the brain, the more technologies can be developed to assess access, and in some cases control its functions. Still, any such information must be regarded as putative, and this bolsters the points and position we offer in this article.

United States Federal Rules of Evidence, Article IV: § 403, 702.

The distinction between neuroethics and neurolaw is becoming obscured, and we view these two fields as collaborative, if not reciprocal. If we address neuroethics’ “first tradition” perhaps more appropriately as “neuro-ecology,” that is, studies of human proto-moral cognitions and behaviors within defined environmental (sociocultural) niches and contexts, this may enable development of certain metaconstructs for human thought and actions that are descriptive and explanatory (but not necessarily prescriptive or predictive) within contexts of law. The second “tradition,” namely, ethical issues generated by neuroscientific research and applications, dictates appreciation of the ways that science and ethical systems and practices contribute to and are affected by a host of social factors, inclusive of law (i.e., neuroscience, ethics, legal, and social issues—NELSI). Ongoing activities of the U.S. Presidential Commission for the Study of Bioethical Issues certainly, and encouragingly, reflect this movement toward a more proactive and integrative orientation and approach to neuroscience, ethics, and law.