Journal Article

The case for pain neuroimaging in the courtroom: lessons from deception detection

Natalie Salmanowitz

in Journal of Law and the Biosciences

Published on behalf of Harvard University Law School

Volume 2, issue 1, pages 139-148
Published in print February 2015 |
Published online February 2015 | e-ISSN: 2053-9711 | DOI: https://dx.doi.org/10.1093/jlb/lsv003

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From an observer's perspective, pain is a fairly nebulous concept—it is not externally visible, its cause is not obvious, and perceptions of its intensity are mainly subjective. If difficulties in understanding the source and degree of pain are troublesome in contexts requiring social empathy, they are especially problematic in the legal setting. Tort law applies to both acute and chronic pain cases, but the lack of objective measures demands high thresholds of proof. However, recent developments in pain neuroimaging may clarify some of these inherent uncertainties, as studies purport detection of pain on an individual level. In analyzing the scientific and legal barriers of utilizing pain neuroimaging in court, it is prudent to discuss neuroimaging for deception, a topic that has garnered significant controversy due to premature attempts at introduction in the courtroom. Through comparing and contrasting the two applications of neuroimaging to the legal setting, this paper argues that the nature of tort law, the distinct features of pain, and the reduced vulnerability to countermeasures distinguish pain neuroimaging in a promising way. This paper further contends that the mistakes and lessons involving deception detection are essential to consider for pain neuroimaging to have a meaningful future in court.

Keywords: fMRI; courtroom; deception; neuroimaging; pain

Journal Article.  4502 words. 

Subjects: Medical and Healthcare Law ; Bioethics

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