What Neuroscience Can and Cannot Answer (original) (raw)
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Current Opinion in Neurology, 2011
Deviant behavior, which can be defined as a violation of cultural norms and/or enacted law, is a crucial matter for worldwide societies. In recent years, developments in behavioral genetics and cognitive neuroscience have allowed the scientific investigation of the biological basis of a number of cognitive processes which are relevant to deviant behavior. These include conscious will, impulse control, decision-making, emotional regulation, empathy and malingering. The results of the studies published so far have potential implications for theoretical aspects of the law; for example, according to some, studies on the neural basis of free will challenge the current notion of legal responsibility on which the criminal system is based. The results of these studies, however, also have important implications for practical aspects of the law; for instance the observation in adolescents of underdeveloped prefrontal regions involved in decision-making and impulse control has influenced the US Supreme Court decision to ban the death penalty for under-age defendants [1].
THE MYTH OF THE DOUBLE-EDGED SWORD: AN EMPIRICAL STUDY OF NEUROSCIENCE EVIDENCE IN CRIMINAL CASES
Boston College Law Review, 2015
This Article presents the results of my unique study of 800 criminal cases addressing neuroscience evidence over the past two decades (1992–2012). Many legal scholars have theorized about the impact of neuroscience evidence on the criminal law, but this is the first empirical study of its kind to systematically investigate how courts assess the mitigating and aggravating strength of such evidence. My analysis reveals that neuroscience evidence is usually offered to mitigate punishments in the way that traditional criminal law has always allowed, especially in the penalty phase of death penalty trials. This finding controverts the popular image of neuroscience evidence as a double-edged sword—one that will either get defendants off the hook altogether or unfairly brand them as posing a future danger to society. To the contrary, my study indicates that neuroscience evidence is typically introduced for a well-established legal purpose—to provide fact-finders with more complete, reliable, and precise information when determining a defendant’s fate. My study also shows that courts accept neuroscience evidence for this purpose, and in fact expect attorneys to raise this evidence when possible on behalf of their clients. This expectation is so entrenched that courts are willing to grant defendants their “ineffective assistance of counsel” claims when attorneys fail to pursue this mitigating evidence. Meanwhile, my study also reveals that the potential future danger posed by defendants is rarely a facet of cases involving neuroscience evidence—again contradicting the myth of the double-edged sword. The cases that do address future danger, however, offer fascinating insight into the complex legal issues raised by neuroscience evidence. As courts continue to embrace neuroscience tools and techniques, the empirical data collected in my study provide a foundation for discussions regarding the use of neuroscience evidence in criminal cases. The findings presented in this Article will ensure that those discussions are grounded in fact rather than hyperbole. Key words: neuroscience, criminal law, death penalty, ineffective assistance of counsel, double-edged sword, future dangerousness, Supreme Court, mitigating evidence, aggravating evidence, longitudinal research, empirical study, punishment, MRI, fMRI, PET scan, QEEG, mental retardation, brain injury, frontal lobe damage
Neuroscientific evidence is increasingly being used in criminal trials as part of psychiatric testimony. Up to now, “neurolaw” literature remained focused on the use of neuroscience for assessments of criminal responsibility. However, in the field of forensic psychiatry, responsibility assessments are progressively being weakened, whereas dangerousness and risk assessment gain increasing importance. In this paper, we argue that the introduction of neuroscientific data by forensic experts in criminal trials will be mostly be used in the future as a means to evaluate or as an indication of an offender's dangerousness, rather than their responsibility. Judges confronted with the pressure to ensure public security may tend to interpret neuroscientific knowledge and data as an objective and reliableway of evaluating one's risk of reoffending. First,weaimto showhowthe current socio-legal context has reshaped the task of the forensic psychiatrist,with dangerousness assessments prevailing. In the second part,we examine froma critical point of viewthe promise of neuroscience to serve a better criminal justice systemby offering new tools for risk assessment. Thenwe aim to explainwhy neuroscientific evidence is likely to be used as evidence of dangerousness of the defendants. On a theoretical level, the current tendency in criminal policies to focus on prognostics of dangerousness seems to be “justified” by a utilitarian approach to punishment, supposedly revealed by new neuroscientific discoveries that challenge the notions of free will and responsibility. Although often promoted as progressive and humane, we believe that this approach could lead to an instrumentalization of neuroscience in the interest of public safety and give rise to interventions which could entail ethical caveats and run counter to the interests of the offenders. The last part of this paper deals with someof these issues—the danger of stigmatization for brain damaged offenders because of adopting a purely therapeutic approach to crime, and the impact on their sentencing, in particular.
The Place for Neuroscience in Criminal Law
The last thirty years have seen an explosion of neuroscience research on how the mind functions. This research paints a revised image of what constitutes human nature and behavior and how the criminal law can handle those extremes of it that endanger individuals and their society. The revision is important to the criminal law because key criminal law concepts of culpability depend on the internal workings of individuals’ minds. Research into intentionality, consciousness, and brain plasticity are just some examples of areas where new discoveries could help enhance validity and reliability within the criminal justice system. Not surprisingly, lawyers have increasingly introduced neuroscience evidence into the courtroom, a trend suggesting that the complexity of the legal issues raised will only expand as the science progresses. On a more fundamental level, neuroscience is also an excellent resource to revitalize the Model Penal Code’s original focus on subjective determinations of an individual defendant’s blameworthiness, based on that particular defendant’s mental state. Over the last sixty years, the American criminal justice system has become far more punitive, and the subjective inquiry has been overshadowed by a more objective standard that downplays the need to assess individual culpability. The incorporation of modern neuroscience research into the criminal law would bring back a system of justice that more accurately reflects a given defendant’s mental state as well more effectively protects the rest of society. But to benefit from neuroscience in this way, we must first penetrate the mystique that often surrounds the meaning and applicability of the science. We must move on from misconceptions, fears, and misguided debates. And we must realize that although neuroscience brings unique insight to the law, there is nothing about neuroscience that merits unique treatment by the law.
Neuroimaging in criminal trials and the role of psychiatrists expert witnesses: A case study
2019
Various neuroscientific techniques are increasingly being used in criminal courts causing a vivid debate on the way that this kind of techniques will and should be used as scientific evidence. The role of experts in this context is important, since it is them that analyse, present, interpret and communicate the results of these techniques to the judges and the jury. In an attempt to contribute to the discussion about the role of the experts in criminal cases where neuroimaging evidence was introduced, we examined twenty seven cases from the US and Europe. Focusing on the role of experts and their presentation of neuroscientific evidence, we aimed to examine the extent to which neuroimaging data can contribute to the construction of a solid and more objective, "scientifically-based" case. We found that neurobiological information introduced through experts' testimony is generally used in order to demonstrate some physical, organic base of a psychiatric condition, or/and in order to make visible some brain lesion, (structural or functional), susceptible to have affected the capacity to reason and to control one's impulses. While neuroimaging evidence is often presented by the defence as a scientific method able to offer a precise diagnosis of the pathology in question, our case analysis shows that the very same neurobiological evidence can be interpreted in different-sometimes diametrically opposed-ways by defence and State experts. Conflicting testimony about the same empirical evidence goes against the hypothesis of neuroscientific techniques constituting "objective and hard evidence", able to reach solid, scientific and objective conclusions. Frequent conflicts between neuroimaging experts require the courts to deal with the resulting uncertainty. As the law changes with technology, it is necessary for legal professionals to train and be prepared for the new issues they may encounter in light of new developments in neuroscience, so that they become more vigilant as to the interpretation of neuroscientific data.
Psychology, Crime and Law, 2018
The use of neuroscientific evidence in criminal trials has been steadily increasing. Despite progress made in recent decades in understanding the mechanisms of psychological and behavioral functioning, neuroscience is still in an early stage of development and its potential for influencing legal decision-making is highly contentious. Scholars disagree about whether or how neuroscientific evidence might impact prescriptions of criminal culpability, particularly in instances in which evidence of an accused’s history of mental illness or brain abnormality is offered to support a plea of not criminally responsible. In the context of these debates, philosophers and legal scholars have identified numerous problems with admitting neuroscientific evidence in legal contexts. To date, however, less has been said about the challenges of evaluating the evidence upon which integrative mechanistic explanations that bring together evidence from different areas of neuroscience are based. As we explain, current criteria for evaluating such evidence to determine its admissibility in legal contexts are inadequate. Appealing to literature in the philosophy of scientific experimentation and theoretical work in the social, cognitive and behavioral sciences, we lay the groundwork for reforming these criteria and identify some of the implications of modifying them.
International Journal of Psychophysiology, 2010
At the cognitive level, neuroscience addresses the questions of how psychological phenomena are produced by neural circuitry. The emergence of powerful new measurement techniques, such as neuroimaging through functional magnetic resonance imaging (fMRI), positron emission tomography (PET), and single-photon emission computed tomography (SPECT) allows neuroscientists and psychologists to address questions about how certain human behaviors are linked to specific neural processes. Neuroscientists seek to determine how brain function affects behavior. As the law is concerned with regulating behavior, it is reasonable to ask whether, and if so how, neuroscience could, or should, inform the law. 4 Legal cases in which neuroscientific evidence about a defendant's or claimant's brain state are cropping up with increasing frequency. More and more, courts are confronted with the reality that human behavior cannot be separated from human biology 5 but scholars like UM Carey Law Associate Professor Amanda Pustilnik are quick to warn that the connection between the two is not sufficiently precise to make facile legal determinations.
HOW PROSECUTORS AND DEFENSE ATTORNEYS DIFFER IN THEIR USE OF NEUROSCIENCE EVIDENCE
2016
Much of the public debate surrounding the intersection of neuroscience and criminal law is based on assumptions about how prosecutors and defense attorneys differ in their use of neuroscience evidence. According to some, the defense’s use of neuroscience evidence will abdicate criminals of all responsibility, while the prosecution’s use of that same evidence will unfairly punish the most vulnerable defendants as unfixable future dangers to society. This “double-edged sword” view of neuroscience evidence demonstrates the concern that the same information about the defendant can either be mitigating or aggravating depending on who is raising it. Yet empirical assessments of legal decisions reveal a far more nuanced reality, showing that the public beliefs about the impact of neuroscience on the criminal law can often be wrong. This Article examines how courts respond to neuroscience evidence in capital cases when the defense presents it to argue that the defendant’s mental state at the time of the crime was below the given legal requisite due to some neurologic or cognitive deficiency. Relying on data from my “Neuroscience Study” (which consists of all criminal law cases that addressed neuroscience evidence from 1992–2012), I examine thirty-nine capital cases in which the defense attempted to use neuroscience evidence to dismiss or diminish the defendant’s level of intent either at the guilt phase or the penalty phase, along with a corresponding rebuttal or counterargument from the prosecution. I use a range of case examples to show how courts’ differing perspectives on what constitutes mitigating and aggravating evidence suggests that the “double-edged sword” framework is simplistic and, at times, misleading. This Article concludes that the lack of consistency and guidance among lower mens rea cases seemingly hinders a more effective application of neuroscience evidence in intent determinations. To remedy this problem, this Article endorses the “reasonable jurist” framework, which recognizes the value of case-by-case determinations and provides courts with a more realistic lens through which to assess the great variety of neuroscience factors.