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Judicial conclave delves into implications of tech advances

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Last week, the UNM School of Law, the Judicial Education Center, and the New Mexico Supreme Court presented the 2013 New Mexico Judicial Conclave here in Albuquerque. The conclave is an annual event which provides an educational forum for judges from the state and tribal courts on a wide range of topics.

Attendance is mandatory, but ties, and even long pants, are not. We didn’t have any line-dancing classes, “happiness experts,” or free baseball tickets.

This year’s curriculum focused on developing technology and the challenges that rapid advances in neuroscience and communications bring to the courts. Set against the backdrop of national news stories on the IRS’ disparate treatment of certain political groups, the NSA’s broad telephone surveillance program of us all, and the latest in now all-too-common public shooting rampages, this time at Santa Monica College in California, the 2013 conclave was thought-provoking, even a little frightening.

Recent advances in neuroscience, the study of how extensively our genetic makeup and brain functioning control our behavior, were examined by two New Mexicans whose work is considered on the cutting edge in their field. Dr. Kent Kiehl, a UNM professor and director of mobile brain imaging, discussed how psychopaths – those with a ” constellation of psychological symptoms” affecting all areas of their lives – make up less than 1 percent of the population, but up to 25 percent of those incarcerated by our criminal justice system.

Similarly, Dr. David Eagelman, an Albuquerque Academy graduate and best-selling author, posited that “human behavior cannot be separated from human biology.” While reminding us he did not advocate those with mental issues should get a “free ride” from the criminal justice system, he urged “perhaps not everyone is equally ‘free’ to make socially appropriate choices.”

Technological advances in measuring techniques, such as functional MRIs, may enable us to more accurately predict those who will exhibit psychopathic behavior and may help us develop better ways to treat and manage those who are afflicted, but how accurate are the emerging technologies? How skilled are those administering the tests? How much can the subject manipulate the result?

How do we, as judges, apply the traditional legal notions of intent and responsibility when modern technology may indicate those traditional notions are inapplicable and ineffective in at least some cases? How do we, as judges, balance society’s interest in, and its need for, retribution against the enlightenment of modern neuroscience?

The 2013 conclave program also focused on how advances in technology are changing the face of our daily lives and the legal concepts we rely upon to organize our society. Dr. Gary Marchant of the Arizona State University College of Law focused on rapid advances in DNA and genome testing in the context of privacy rights and standards of medical care. Is it medical malpractice, for example, if a physician does not order complex and expensive genetics testing each time he writes a prescription now that such tests exist? Can we, and should we, utilize modern testing to predict who among us may pose a threat to the rest of us? And what should we do if those tests predict an individual is dangerous, when they have actually done nothing?

Perhaps most starkly, Dr. Marchant urged us to consider whether there is still a place for privacy in the face of new surveillance technologies or whether, as a former head of Sun Microsystems told us in 1999: “You already have zero privacy. Get over it.”

There is an ancient Chinese curse that holds, “May you live in interesting times.” The 2013 N.M. Judicial Conclave left those of us who are both privileged and taxed to daily seek a balance between the rights and needs of the individual and those of our society acutely aware of how technology is making our times interesting. We will continue to explore these issues here and you can, of course, “Judge for Yourself.”

Alan M. Malott is a judge of the 2nd Judicial District Court. Before joining the court, he practiced law throughout New Mexico for 30 years and was a nationally certified civil trial specialist. If you have questions, send them to Judge Malott, P.O. Box 8305, Albuquerque, NM 87198 or email to: alan@malottlaw.com. Opinions expressed here are solely those of Judge Malott individually and not those of the court.

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