You Thought NSA and DEA and the Rest of the Alphabet Agencies Were Invasive? You Ain't Seen Nothing Yet!

How different is that from Big Brother?

So wonders Alan Alda as yet another academic neuroscientist runs yet another subject through the functional MRI machine and gets a hint of what they may someday be able to tell.

Used to be if they wanted to figure out if someone was a witch, they'd tie the person up and toss her in the water.  If she sank, she was innocent.  Ah, but if she floated up to the surface and escaped . . . . Only a witch could do that.  How much better we are now, what with lie detectors and the collective guesses of 12 good men (and women) and true.  And we have all that nifty forensic bullshit of fingerprints and bite marks and ballistics that trained lookers just know provides proof positive because dammit those things look alike and they can't ever be mistaken about that sort of thing.  Just ask Brandon Mayfield, who was positively and repeatedly identified by the best fingerprint examiners at the FBI as the guy who bombed the train in Madrid because his

Ooops.  Son of a bitch.  They fucked up.  Not him.  Innocent guy.  Shit.  That can't happen.

But just suppose. Suppose that the next wave of forensic scientists can look inside your brain.  Imagine that they can roll you into the magnetic resonance imaging machine, do what's called a functional MRI (fMRI to the cognoscenti), and tell from the parts of your brain that light up when you answer questions whether you're lying.  Or whether that person you identified is someone you've actually never seen before.  Or whether the guy who says I was never in that 7-11 actually has a picture of it etched into his brain in a way that the fMRI can develop.

That's the sort of thing that explored in a frankly fascinating - and if you believe in autonomy and civil liberties and due process and our adversary system of justice fairly terrifying - two-part series on PBS to be shown September 11 and 18.  (And thanks to PBS and WNET for providing me with an opportunity to screen the series in advance.)  It's called Brains on Trial, and it's well-worth watching.

Start with a fake crime.  Three guys burst into a carry out to rob the joint.  One's pointing a gun at the guy behind the register.  It's loud and messy and naturally the guy's wife comes out from a room at the back and the one with the gun is startled and frightened and turns and pulls the trigger.  She lives, but with massive brain damage.

From fake crime to fake trial.  But in a real courtroom with real lawyers, an AUSA and a criminal defense guy.  And a real judge, the Honorable Jed Rakoff.   And there's a jury (we don't learn who they are).  Of course, the trial is truncated and scripted and shown in fragments and lasts all of maybe 6 or 7 minutes if that (I didn't time it).

But the faux trial, like the faux crime, is just window dressing.  The real show is what the various neuroscientists and researchers show Alda about where their research seems to be heading.  And Alda's chats with Duke Law Prof Nita Farahany about what it all means and how it can be used in a courtroom.  (Gee, if they can read the defendant's brain from a distance does the Fifth Amendment's protection against self-incrimination apply?  Tough call, Nita says while ignoring completely the 4th Amendment implications.)

Some of this stuff isn't quite so cutting-edge as they'd like you to believe.  We've known for a while now that the brain does not fully develop, it's wiring doesn't get properly wrapped, until a person is around 25. The loosely wired brain suffers from weak judgment and poor impulse control.  That's why kids are, well, kids.  And it's why the legal system treats them differently.  And, frankly, it's why it should treat young adults differently, too.  A point Alda and Farahany discuss and agree on.

And some of it - well, the idea of running scans of psycopaths so that (at least this is the suggestion) similar scans can be done of the convicted to determine whether they're psychopaths and should therefore be locked up forever.  Except, of course, the whole idea of psychopathy is something of a parlor trick and psychological charlatanism.  And the test - we'll look at the brains of psychopaths to tell whether they're different so we can figure out who's a psychopath - is self-referential and circular and built on a foundation of bullshit.

Some of what we learn about, on the other hand, is quite stunning.  It turns out, at least according to one study, that when adolescents are with their friends, just the fact of the friends' presence makes a serious difference in their behavior.  Alone, they're just like adults.  But while adults are the same with friends as they are alone, adolescents become more reckless, more impulsive, inclined to show off. It's not that the friends distract or egg them on.  It's just their presence.

It's when you put adolescents with their friends that their behavior and their brain pattern changes.

Maybe.  As I said, it's one scientist's study.  And of course it's preliminary.  And maybe there are a dozen other neuroscientists who get contradicting results.  I don't know.  That's the problem across the board.  Where the studies are truly at the forefront, breaking new ground, figuring out how they can use fMRI to measure and predict and reveal details about behavior, they're not trustworthy - at least, not yet.

This not-science-but-we're-working-on-it isn't ready for prime time (except on TV where it's in fact being shown in prime time).  When it is, if it is someday, if the scientists can simply look inside the brain and see just what happened and why, if they'll be able to determine actual remorse, if they can show that to the jury.

Which brings us back, of course, to the adversary system and those 12 good people and true.  And again to Nita Farahany who observes, rightly, that

every time they bring new science into the courtroom, there's an overreliance by the jurors.

They believe.  They want to believe.  Because the men in lab coats who speak with such certainty.

Of course, this is television even if it's PBS.  That means sexy wins out over careful.  It means more focus on the hocus pocus and the sci-fi and less on the hang-on-this-may-just-be-bullshit.  See, here's a clip that didn't make it into the finished product.  But it's an essential caveat.