I was fortunate enough to spend a few days with some of the nation's most innovative neuroscientists, psychiatrists, psychologist, and medical researchers as part of the founding of the new Center for Mental Health Research and Recovery at Montana State University. It was a powerful event that left me with a pragmatic hope for long-term improvements in the process of mental illness diagnostic and treatment. While the field is not changing fast enough for some of us, it is changing.
One of the avenues to that change will likely be the effective use of biological indicators of brain conditions in the courtroom. However, this avenue has had a rough start as court's have struggled to evolve their usual evidentiary standards to the dynamic, yet still developing world of brain scans, genetics and blood tests. It's hard for anyone, much less someone outside of the medical profession, to determine what kind of neuroscience evidence should be admitted and what kind of evidence is not ready for prime time.
According the researchers I met with and the general opinion of other in the field, most of that evidence is not ready to be introduced into court. (Brain Scans, Blood Tests). However, we are moving in that direction and approaching the kind of quandary that the discussed in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923):
Just when a scientific principle or discovery crosses the line
between the experimental and demonstrable stages is
difficult to define. Somewhere in this twilight zone the
evidential force of the principle must be recognized, and
while the courts will go a long way in admitting experimental
testimony deduced from a well-recognized scientific principle
or discovery, the thing from which the deduction is made must
be sufficiently established to have gained general acceptance
in the particular field in which it belongs. [emphasis added]
Frye's strong "general acceptance" test has given way in many courts to the standard described in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Under this standard, the factors that may be considered in determining whether the methodology should be admissable valid are: (1) whether the theory or technique in question can be and has been tested; (2) whether it has been subjected to peer review and publication; (3) its known or potential error rate; (4) the existence and maintenance of standards controlling its operation; and (5) whether it has attracted widespread acceptance within a relevant scientific community.
Frye's strong "general acceptance" test has given way in many courts to the standard described in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Under this standard, the factors that may be considered in determining whether the methodology should be admissable valid are: (1) whether the theory or technique in question can be and has been tested; (2) whether it has been subjected to peer review and publication; (3) its known or potential error rate; (4) the existence and maintenance of standards controlling its operation; and (5) whether it has attracted widespread acceptance within a relevant scientific community.
It's understandable that courts are getting lost when applying this standard to the rapidly evolving field of neuroscience and combining prongs (2) and (5). However, publication in a peer-reviewed journal does not equate to widespread acceptance within a relevant scientific community. Further, evidence of low statistical significance in many neuroscience studies suggests that prong (5) is as important as ever to ascertaining scientific validity.
I poised the question to these leading researchers about what could act as a concrete factor to demonstrate widespread acceptance within the neuroscience/psychological/psychiatric community and the answer was immediate - an independent replication study published in a peer-reviewed journal.
This answer is supported by a staff article in the American Psychological Association Monitor which stated,
"In psychology, as in other sciences, replication is the gold standard. In theory, new knowledge doesn't make it into the canon until the studies that produced it have been verified, independently, by more than one researcher. But in practice, critics say the field rarely lives up to that ideal — and the result is a psychological literature rife with findings that may or may not be true, yet are generally accepted as valid."
The adoption of this "gold standard" to Daubert's "widespread acceptance" prong would allow courts to utilize a clear standard to determine when brain biomarkers should be admitted into court. This standard is based upon the actual findings of the relevant scientific community, not the judge's estimate of the acceptance of the scientific community.
A Modified Daubert Standard for the Introduction of Brain Biomarker Evidence in the Courtroom
Under this standard, the factors that may be considered in determining whether the methodology should be admissable valid are: (1) whether the theory or technique in question can be and has been tested; (2) whether it has been subjected to peer review and publication; (3) its known or potential error rate; (4) the existence and maintenance of standards controlling its operation; and (5) whether it has been replicated by an independent research team with their results subjected to peer review and publication.
As an attorney who advocates for people who live with serious mental illness and their families, I'm convinced that the addition of valid neuroscience evidence in the courtroom will be a major addition to both the justice system and the overall fight to effectively diagnose/treat these conditions. However, the science has to be proven and accepted by the field.
Unproven brain scans and and genetic tests do not serve either the interests of justice or the people that depend on the mental illness treatment system.
No comments:
Post a Comment