A few scholars have written about the emerging legal and ethical implications of neuroscience-bsaed memory research. Adam Kolber has a very interesting piece on memory dampening, and Carter Snead has a fascinating one on memory and punishment. Both papers are being published by the fabulous Vanderbilt Law Review. (Both Professors Kolber and Snead will also be speaking at the Law and Memory Conference at Stanford Law School on April 1, 2011 — save the date!).

Memory claims (often drawing from emerging neuroscience) are also already being made in myriad legal cases (like the blackout defense, challenging eyewitness testimony, and for procedural tolling). The digest today summarizes two cases that introduce brain-based memory claims—memory impairment for disability benefits, and the credibility of witness memory. Memory claims will undoubtedly expand as the science in this area improves.

Brain Dysfunction, Social Security Disability Benefits, and Memory
Burnett v. Astrue, 2011 WL 486600 (M.D. Fla. 2011)
Impairment to memory systems may suffice to establish severe mental impairment for social security disability benefits. Plaintiff sought judicial review of the final decision of the Commissioner of Social Security denying his claim for Disability Insurance Benefits. Plaintiff claims severe mental impairment from residuals from a stroke that occurred after he was assaulted several years prior. Plaintiff’s application was both initially and later denied upon reconsideration. The administrative law judge (“ALJ”) found that Plaintiff has a severe impairment from the stroke but that impairment does not satisfy one of the statutorily listed ones. Because of Plaintiff’s complaints about memory problems two expert consultative exams were performed. The expert who evaluated Plaintiff’s memory impairment concluded that the Plaintiff suffered “memory impairment secondary to organic brain damage.” The ALJ acknowledged that Plaintiff’s auditory immediate memory is in the bottom one percentile, but emphasized that Plaintiff “seemed to recall visual stimuli memory somewhat better.” Ultimately, the ALJ found that Plaintiff did not have a mental impairment that would prevent him from meeting the intellectual and emotional demands of a competitive work environment. On review, the court found that the ALJ inappropriately disregarded the expert opinion and substituted his own opinion for the medical opinion of a health care source. Consequently, it found a lack of substantial evidence to support the ALJ’s finding that Plaintiff has no severe mental impairment and remanded for additional fact-finding.

Brain Dysfunction, Witness Credibility and Memory
State v. Kleine, 2011 WL 116835 (Mo. App. S.D. 2011)
Apellant was convicted following a jury trial and sentenced by the court of two counts of first-degree murder that took place in 1970. Appellant claims the trial court erred in allowing Appellant’s ex-wife to testify against him. On appeal, the court found no error and affirmed the conviction. Appellant sought to both exclude (on spousal privilege grounds) and to impeach the testimony of his ex-wife. In seeking to impeach her, he claimed that suffered a head injury that caused her problems with her memory, so that her statements about his confession to the double homicide were unreliable. The jury heard that testimony and still convicted Appellant. On appeal, the Court refused to second guess that determination of credibility.