The Limited Effect of Electroencephalography Memory Recognition Evidence on Assessments of Defendant Credibility

Journal of Law and the Biosciences (2017), lsx005. doi: 10.1093/jlb/lsx005

35 Pages Posted: 5 Jun 2017

See all articles by Francis X. Shen

Francis X. Shen

University of Minnesota Law School

Emily Twedell

Shen Neurolaw Lab

Caitlin Opperman

University of Minnesota - Twin Cities, School of Law, Students; Shen Neurolaw Lab

Jordan Krieg

University of Minnesota - Twin Cities, Medical School, Department of Neuroscience, Students; Shen Neurolaw Lab

Mikaela Brandt-Fontaine

University of Minnesota - Twin Cities, Medical School, Department of Neuroscience, Students; Shen Neurolaw Lab

Joshua Preston

University of Minnesota - Twin Cities, School of Law, Students; University of Minnesota - Twin Cities, Center for Bioethics, Students; Shen Neurolaw Lab

Jaleh McTeigue

Mount Holyoke College, Students; Shen Neurolaw Lab

Alina Yasis

Shen Neurolaw Lab

Morgan Carlson

Independent

Date Written: June 2, 2017

Abstract

The admissibility of neuroscientific evidence is becoming an increasingly important issue for American courts. Scholars have suggested that in the context of neuroscientific evidence generally, and brain evidence related to deception in particular, Rule 403 concerns may be particularly salient. Yet despite concerns under Rule 403 about the prejudicial effects of neuroscientific evidence, the scholarly empirical literature on the effects of such evidence is decidedly mixed.

This article reports on new results from a study examining the effect of neuroscientific evidence on subjects’ evaluation of a fictional criminal fact pattern, while manipulating the strength of the non-neuroscientific evidence. By manipulating the strength of the case, we are able to estimate the marginal effect of introducing neuroscientific evidence. We do this in the context of brain-based memory recognition with electroencephalography (EEG) evidence.

In two experiments, one using 868 online subjects and one using 611 in-person subjects, we asked subjects to read two short, fictional vignettes describing a protagonist accused of a crime. We manipulated (i) the expert evidence (none, incriminating brain evidence, exculpating brain evidence, incriminating polygraph evidence, and exculpating polygraph evidence), and (ii) the strength of the non-neuroscientific facts against the defendant (weak facts with an alibi, medium facts, and strong facts with a motive).

We found that although there is a statistically significant relationship between exposure to neuroscientific information and subjects’ evaluations of the fictional defendant, the neuroscientific evidence was not as powerful a predictor as the overall strength of the case in determining outcomes. Our primary conclusion is that subjects are cognizant of, but not seduced by, brain-based memory recognition evidence. Subjects consider the evidence, and it has an effect in some contexts on their evaluations, but they generally weigh it as just one of many facts on the record.

Keywords: Neurolaw, Law and Neuroscience, Brain, EEG, Memory Recognition, Deception, Lie Detection, Evidence, Rule 403, Electroencephalography

Suggested Citation

Shen, Francis X. and Twedell, Emily and Opperman, Caitlin and Krieg, Jordan and Brandt-Fontaine, Mikaela and Preston, Joshua and McTeigue, Jaleh and Yasis, Alina and Carlson, Morgan, The Limited Effect of Electroencephalography Memory Recognition Evidence on Assessments of Defendant Credibility (June 2, 2017). Journal of Law and the Biosciences (2017), lsx005. doi: 10.1093/jlb/lsx005. Available at SSRN: https://ssrn.com/abstract=2968480

Francis X. Shen (Contact Author)

University of Minnesota Law School ( email )

Minneapolis, MN
United States

Emily Twedell

Shen Neurolaw Lab ( email )

Walter F. Mondale Hall
229-19th Avenue South
Minneapolis, MN 55455
United States

Caitlin Opperman

University of Minnesota - Twin Cities, School of Law, Students ( email )

Minneapolis, MN
United States

Shen Neurolaw Lab ( email )

Walter F. Mondale Hall
229-19th Avenue South
Minneapolis, MN 55455
United States

Jordan Krieg

University of Minnesota - Twin Cities, Medical School, Department of Neuroscience, Students ( email )

321 Church Street SE
Minneapolis, MN 55455
United States

Shen Neurolaw Lab

Walter F. Mondale Hall
229-19th Avenue South
Minneapolis, MN 55455
United States

Mikaela Brandt-Fontaine

University of Minnesota - Twin Cities, Medical School, Department of Neuroscience, Students ( email )

321 Church Street SE
Minneapolis, MN 55455
United States

Shen Neurolaw Lab

Walter F. Mondale Hall
229-19th Avenue South
Minneapolis, MN 55455
United States

Joshua Preston

University of Minnesota - Twin Cities, School of Law, Students ( email )

Minneapolis, MN
United States

University of Minnesota - Twin Cities, Center for Bioethics, Students ( email )

Minneapolis, MN
United States

Shen Neurolaw Lab

Walter F. Mondale Hall
229-19th Avenue South
Minneapolis, MN 55455
United States

Jaleh McTeigue

Mount Holyoke College, Students ( email )

50 College Street
South Hadley, MA 01075
United States

Shen Neurolaw Lab ( email )

Walter F. Mondale Hall
229-19th Avenue South
Minneapolis, MN 55455
United States

Alina Yasis

Shen Neurolaw Lab ( email )

Walter F. Mondale Hall
229-19th Avenue South
Minneapolis, MN 55455
United States

Morgan Carlson

Independent

No Address Available

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