My brain made me do it

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“>> The year was 1991 and Herbert Weinstein was retired at executive.”

>> He's 65 years old and he's living in Manhattan, a 12-story apartment. >> I called up Josh May to tell me this story. He's an ethics professor at the University of Alabama at Birmingham. It gets into an argument with his wife at the time, and he apparently got into such a fit that he strangled her,

and then tried to make it look like a suicide by pushing her body out of the 12-story window. [MUSIC] >> There was a 911 call. The officers responded to claims that a woman may have jumped. [MUSIC]

When the police arrived, they saw a woman lying on the sidewalk in broad daylight, and they saw a window open in the building above. Weinstein was in the lobby. One of the officers asked the man if he lived there, he did. He replied and gave them his name.

He said he lived upstairs with his wife, Barbara. He didn't know where she was. Then Weinstein and the officers went up to the 12th floor. He got agitated once they reached the apartment. Where was she, why were their officers there?

The officer told him that there was a woman dead on the sidewalk. And Weinstein's like, is it Barbara? >> He was acting kind of strangely. Apparently seemed a bit unconcerned that his wife had just died, and that he was being assessed back in this case.

[MUSIC] >> The officers asked him questions. Why do you have a scratch in your face? And they noticed that one of his hands was black and blue, with a spot of blood on it, and so then he came clean.

There were witnesses, or people who saw the head pushed on the body out. And he pretty readily confessed to it. >> To everything, he confessed to strangulation, he confessed to throwing her out the window in a panic, and he admitted to covering up the crime.

And so the officers arrested him. [MUSIC] Weinstein's defense attorney was struck by how relaxed his client seemed in the days after the crime. And so he ordered a psychiatric evaluation.

The man's history indicated nothing glaring. He had no criminal record, no history of violence. And there was no known motive. His defense team did a pet skin,

basically a snapshot of his brain.

What they found was shocking. [MUSIC] And in the ensuing trial, people versus Weinstein. It was the first time a judge allowed a pet skin, as evidence, to determine the defendant's guilt or innocence.

What I find so fascinating though, is that this pet skin sort of opened up, a Pandora's box in the courts. As one near times writer put it, this case was arguably the moment that neuroscience began to transform the American legal system. [MUSIC]

“Today, what is the role of neuroscience in the law?”

And what are its limits? I'm Amy Padula, and this is unexplainable. [MUSIC] So, when Weinstein's pet skin came back, the image revealed something alarming.

A big dark circle. And he had a orange-sized cyst pressing on his frontal lobe. It was an arachnoid cyst, which forms in the arachnoid tissue of the brain. There are sort of multiple layers of protective tissue that surround the brain.

The arachnoid sort of the middle layer predominantly

has super spinal fluid in it.

“These tissues essentially provide some protection to the brain.”

Anthony Wagner is a neuroscientist at Stanford University. So, the cyst was on the left side of Weinstein's brain. Essentially, it's sort of a filling up. It's a little sack within the arachnoid space. It's the filling up of that space with cerebral spinal fluid.

And so, it begins to fill up. It can actually sort of impinge on the underlying brain tissue. In a small percentage of cases, it can impact brain function. Most individuals who have arachnoid cysts, there are no consequences per behavior for

neural function, but a small percentage, it can.

And so, it's this sort of impinging on the brain that can perhaps change brain function for some individuals. Weinstein's cyst was also critically pressing up against his frontal lobe. At high level, we know a lot about the frontal lobes, the frontal lobes roles, and allowing us to sort of represent our goals, our plans, to represent the context we're in and to

try to bring our behavior in line, act appropriately within a particular context. So, Anthony says, "For instance, if you had a wound in this area of the brain, your behavior might change." Say you're in your doctor's office, maybe the phone rings. Someone with damage in that part of the brain might simply just pick up the phone.

That's a habitual response.

These are things we do with phones, but given the context in which one is in, it's not

your home, it's not your office, it's your doctor's office.

“Most of us would not sort of go ahead and pick up the phone, right?”

So, lateral, do our lateral prefront cortex, or lateral prefrontal cortex, interacting with other brain regions, allows to represent our goals, our context, bring our behavior in line with and to produce contextually appropriate behavior. One might be a bit more impulsive, on average individuals who have prefrontal lesions, or impairment, and prefrontal function might be a bit more impulsive, they might struggle

to regulate emotion, they might struggle to regulate, overlearned, or habitual behavior that are not context-relevant. So, wine science defense team has the scan at their disposal. The prosecution was really anxious about it, because even though winestein had already admitted to what he had done, was he going to get off easy because of the cyst?

Because maybe winestein was one of the unlucky ones that did have cognitive impairment, but it's tricky. The pet image was taken after the crime was committed, not the day of the crime. The scan proved he had a cyst in his brain, but that's about all it showed. One of the challenges for the courts is to try to figure out what evidence should

they allow in. The prosecution or the defense one side wants to bring the evidence forward, and Judas have a free for all, or is there some process upon which, or by which, the court should be making these decisions? We actually have a special process in the court system to help us figure out what scientific

evidence is admitted and not admitted. One is something called the "Fry Standard". Today we have another one called Dober. The "Fry Standard" at the highest level is to have experts or have one or both sides of the case, weigh in on whether or not this new scientific method is generally accepted

as doing the thing that it's being offered to do in that particular case, sort of setting up the judge as essentially the gatekeeper.

“Should I let this particular scientific evidence enter the courtroom be presented to the jury?”

Does it meet this set of criteria? What do we know about that? So, in "Fry Herings" and Dober Herings, these are pre-trial hearings where there's presentation from both sides about the state of the science. In the wine-stine case, the judge conducted a special hearing for the scan, and the fry standard

was applied. If you found that the PET scan was a generally accepted technological tool, then experts could testify about whether that scan supported a claim of brain dysfunction. They could argue that because of this cyst and its location near the frontal lobe, wine-stine lacked the capacity to behave normally, that he had gone temporarily insane.

But this hearing would also give the prosecution the opportunity to ask questions and bring an experts. So, are you like, well, just because wine-stines frontal lobe was affected, it doesn't mean it could cause violent behavior. And it doesn't follow that it caused him to commit this crime.

Biology says one thing, "There was a cyst on this man's brain. We know that from the PET scan."

Really, in the law, it's not largely about the science, it's about, you know, can you convince a jury? Okay, so the judge poured over the testimonies of physicians and scientists who had defended both arguments that the scan showed that the cyst could reasonably have impacted how he behaved. Other experts testified that the mere existence of the cyst was not the cause of this man's

actions. So wine-stines lawyer suggests that his client should not be held responsible for his actions because of this, because of the presence of this. That's essentially the argument. Yep, that he's not fully in control, and the very least he should be held less responsible.

The question here is about whether he really had control over it, and so that could be a mitigating factor.

This is really what we call the brain defense, basically my brain made me do it.

Was wine-stine in control of what he did, or was his brain impacted by the cyst in this specific

“area of the brain that we know controls executive function, personality, and some behavior?”

Because of that, did he make a sudden, awful choice? The district attorney got worried that a jury would possibly a quit if they saw this large cyst pressing on his frontal lobe. Basically, oh, so there's a cyst on his brain. They might assume his brain made him do it, and then let him off.

The prosecution, I think it's mostly that they're worried that even if it's a bad argument that a jury might be swayed by it, and especially in wine-stine's case, the brain imaging

is very powerful, compelling evidence that there is that brain abnormality, and it is

so tempting to go from brain abnormality to absolving of guilt in the minds of some people at least. It's a hard argument for the prosecution. They want to argue that this man was not insane, and that he committed this crime, that he admitted to it, sister not, he did this.

“So I think that the prosecution is hedging their bets there, and they're worried that”

some people might make that inference even if it's not a very good one. I think that's exactly what the district attorney was worried about, is that this could be convincing or compelling to a jury, and it is, right, if you can have some, it feels like very solid, hard evidence through some real actual physical object pressing on his brain, that can be pretty compelling to some jurors.

In October of 1992, the judge decided that wine-stine's scan could be admitted as evidence, but they couldn't explicitly say that the cyst caused him to be violent, tensions rose. The prosecution worried that this was the end of their case, the pet scan was so promising it could sway the jury, and then, on the morning of jury selection, the prosecution team made a deal.

They would let wine-stine plead guilty for a less significant sentence. Arguably brain imaging really reduced someone's sentence, where you had a charge of second degree murder down to manslaughter.

Wine-stine was sentenced to seven to twenty-one years in prison, he also never got the

cyst removed, was too risky. But the thing that strikes me the most, the entire time he was there, more than 12 years, he showed no signs of violence. After the break, how neuro-imaging changed and entered the courts after wine-stine, and what's next.

So-clinked-frische music and so-clinked-frische-by-aldee. Emma Good, Emma Günstig, Emma Vielfeldig, kurz gesagt, "Frische for all." To all the prizes, this week, Mini Cherry-Risben Tomaten 300 gram for Nur 2€ 1970, so that half-blender, the kilo for Nur 1€ 1949, and that much further on, to all the prizes, now in their all-dee-naught filiale, and two-ter-gates with frischer-musique

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Hope to see you there! The decision to admit the pet scan in Weinstein's trial in 1992 had enormous implications. And arguably pushed Nero Imaging into the courtroom for good. In 2005, a super high-profile Supreme Court case called Roper versus Simmons, overturned the juvenile death penalty, an argument that was made citing Nero Imaging Research, showing

differences between teenage and adult brains. Nero Imaging has this much of an impact on the court system, a system that operates completely differently than science. And yet both fields are sort of bound up in each other, nodded like cats cradle. Scientists, we have high thresholds for wanting to draw an inference and believe that we've

discovered something and our comfortable sort of reporting it out to the broader scientific community. We want there to be fairly convincing evidence that it's more likely than not due to chance that we see something. We still have the luxury that when we do our experiments, we should have, and we typically

set our standard exceptionally high, and we want to have compelling evidence before we're going to draw an inference. So we can wait out, we can do additional experiments, we can gather more evidence before

“we actually make a decision, make a determination, write a paper and say, "Hey, I think”

I've discovered X." The courts have a different challenge. They have a singular case, it's sitting in front of them. They have a particular defendant, and they have to make a determination. Look, we have to make a decision, that jury, or that judge has to make a determination.

You can't punt it down the road, you can't do another trial five years from now and get more evidence. The jury has to make some determination. The basis upon their decision about guilty, the ability to sort of form intent, the ability to engage in more reasoned, goal-directed, sort of thoughtful, sort of behavior.

That seems like it's often a key question in these trials. I keep thinking about something Adina Roskees told me, she's a philosopher of neuroscience who specializes in cognitive neuro-immiging and neuro-ethics. She says scientists are interested in understanding how things work and what we know and don't know at a moment in time.

But that is a very different project than holding someone responsible for their actions. We often have to average across multiple trials, often across multiple people in order to get any kind of general statement about how brains do the kinds of things that they do. What we reach is some kind of biological, mechanistic understanding, actually the level of neuro-immiging, we rarely get to the level of mechanism, what the kinds of results of the

science give you tend to be general statements about populations when you're talking about

The law is typically concerned with social structure and individual acts and it's really

hard to take the kind of science that's predicated on populations and generalities and apply it to these individual acts and the law works with a very different framework than the sciences work with. I mean, this very unclear how to apply knowledge in one domain to another domain. I don't think there are any clear deductions.

If the evidence is imperfect, if an image of a brain only suggests something about that brain, without being definitive about it, should this kind of evidence have been admitted in a case like Weinstein's after all? Do you think that we have to compare it to other kinds of evidence that we already allow

into courts and really, science has revealed that a lot of the evidence we admit is not

very reliable. Things like, "I witnessed testimony is not very reliable," we know, and yet we don't banish it from courts.

“And I think part of that reason is that we often don't have a lot of evidence when it”

comes to these very high stakes decisions. And we're trying to figure out whether somebody is committed murder or at least certain degree of murder, and it'd be helpful if we had more evidence rather than less. So I'm a bit concerned about pulling evidence off of the table and presuming that juries aren't capable of trying to assess that evidence, it's a hard issue to resolve,

but I think it's better in general to get them more evidence rather than less.

A more fine-tuned technology emerged after PET, called FMRI, functional magnetic resonance imaging. FMRI is really the workhorse now of modern sort of human systems neuroscience. It's transformed our field in so many different ways. FMRI today is the dominant technique used to try to understand brain function. FMRI looks at changes in oxygenated blood flow in the brain that shows changes in brain

activity. Anthony Wagner says, after FMRI broke through in the '90s, there have been these bursts of development with the technology, and another phase has been underway for a while. The combining of current modern-day AI tools and systems with behavioral, phenotypes of people behavioral, rich behavioral, assayin of people, but also underlying neural signals.

“And I think that that's going to give rise to an explosion in the field.”

Neuroscience, as well as obviously in many other fields. So we have these moments of sort of with seem like bursts of discovery, often tied to changes in what we can do as scientists, the techniques we have. But on the whole, science is slow, it's incremental, it's accumulating evidence over years.

He says we can now get closer and closer to understanding the brain at increasing levels of specificity. Right now, FMRI has been used in combination with machine learning tools. Classifiers that can be trained over brain patterns to detect mental states like, is the person remembering the face that they're being presented at this moment versus perceiving

the face's novel. Are they perhaps lying versus not lying? There's been a tremendous push from the mid 2000s onward to develop a reliable brain-based lie detector. Anthony was actually part of a huge effort through the MacArthur Foundation to assess

the literature on the validity of brain-based lie detection. The details of what's in somebody's mind are still fairly limited.

“I think it's not clear how far we'll get, but I'm pretty confident that leveraging brain”

patterns as inputs to AI models will allow us to do. We already begin to see this on the visual perceptual reconstruction. We will do even better in terms of being able to, until they'll scary this notion of mind-rating trying to understand and reconstruct. And I think that those discoveries will continue to come and they'll be many others.

It's pretty clear to me that there's not consensus within the neuroscience community that FMI can be used to differentiate with unknown precision, differentiate between truth and lie. It's really hard science to do. I think of myself as a memory scientist.

Some of the problems we work on, they're easier problems because in a lab setting, you really cannot create lies of real-world experiences with real stakes that are going to elicit the kind of potential threat. It's very hard to concoct a lie in a lab.

are analogs of what might be happening in the real-world. The short answer to the question is, it too early.

The answer is yes, it's too early from my perspective, which is we just don't know.

So brain-based lie detection is unlikely to get anywhere near something, like the frystandard, but it could. I keep thinking about something Josh may ask, are we really just these physical things controlled by our brains?

“And do we actually have any agency over our actions?”

That's still half a lead debated. You might think that we have made some progress, but even neuroscientists will tell you, especially when it comes to consciousness, our experiences. We really just have no idea how that arises in the brain.

And there are these deep questions about whether that is a fundamentally different thing,

or our private experiences versus this brain activity. Could they just be one in the same thing, or are they just fundamentally different? And that's still a hotly debated issue in philosophy, but also in neuroscience. There are these longstanding philosophical questions about does that mean that we are just our brains?

The answer to that big question is best left to neuroscience. And as science evolves, our understanding of justice could too.

“If you want to read more about the Weinstein case, you can read a great book by journalist”

Kevin Davis called the Brain Defense. This episode was produced by me, Amy Padula. It was edited by Joanna Solitarov. Missing and sound design from Joe Plord, and music from Noam Hasenfield. Melissa Hirsch checked the facts.

Julia Lungorea and Jorge Just are our editorial directors. Sally Helm is the fact that brain information travels its speeds up to 268 miles per hour. And Bird Pinkerton headed for the subway. And as soon as she walked down the stairs, she looked at the walls. White tiles in a station.

She must be close.

“So she got on the first A train and headed towards Manhattan.”

As always, thank you to Brian Resnick for co-creating the show with Noam and Bird.

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