pseudoscience infects litigation and the law

Law&Biosciences | If you’ve been following along, you know already that in some cases defense counsel choose not to introduce evidence of cognitive neuroscience or genetic defects because of its double-edged potential. Convincing a judge or a jury that the defendant is predisposed to act the way that he did may backfire against, rather than help, a criminal defendant.

In some cases, the state is already using cognitive neuroscience and behavioral genetics to substantiate predictions of future dangerousness. Whether for death penalty aggravators or the diagnosis of psychopathy, neurological and biological predisposition evidence is being used by prosecutors and not just criminal defendants.

The first case today is representative of that trend. In civil commitment hearings, neuropsychological testing has been used by the state as evidence to bolster a “sexually violent predator” (“SVP” or a sexually dangerous individual) diagnosis to justify confinement. By all indications, this use of cognitive neuroscience is on the rise.

The second case is a bit of GINA bummer, since the pro se litigant botched the case. The Genetic Information Nondiscrimination Act went into effect on November 21, 2009. It largely tracks to Title VII, but has an interesting additional feature that has proven a bit thorny. It makes illegal the mere acquisition (although not inadvertent) of genetic information by an employer. Already over 200 cases are pending with the Equal Opportunity Employment Commission (EEOC), largely based on improper acquisition. While none of these cases have yet to come to trial, and it’s unclear what the damages will be in these cases, this will be an interesting area to watch nonetheless.

As a side note, although we aren’t there yet, I suspect that as more information becomes available linking genetic variation to behavioral variation, there will be greater interest in acquiring and potentially discriminating between individuals based on their genetic information. So despite the botched claim below, the case raises an interesting substantive point: While discrimination is always difficult to prove, discrimination based on genetic information may be even more so. Fist tap Big Don.