NeuroLaw

The March 11 Sunday Times Magazine has an excellent article on the impact of neuroscience research on assigning guilt or innocence in criminal cases. I am posting only a few clips from the article and recommend that you read the entire piece, which you can download here.

THE RISE OF NEUROLAW....

Some sort of organic brain defense has become de rigueur in any sort of capital defense...Lawyers routinely order scans of convicted defendants’ brains and argue that a neurological impairment prevented them from controlling themselves. The prosecution counters that the evidence shouldn’t be admitted, but under the relaxed standards for mitigating evidence during capital sentencing, it usually is. Indeed, a Florida court has held that the failure to admit neuroscience evidence during capital sentencing is grounds for a reversal.

THE END OF RESPONSIBILITY?

In a landmark case the landmark case a divided Supreme Court struck down the death penalty for offenders who committed crimes when they were under the age of 18.

The leading neurolaw brief in the case, filed by the American Medical Association and other groups, argued that because “adolescent brains are not fully developed” in the prefrontal regions, adolescents are less able than adults to control their impulses and should not be held fully accountable “for the immaturity of their neural anatomy.” In his majority decision, Justice Anthony Kennedy declared that “as any parent knows and as the scientific and sociological studies” cited in the briefs “tend to confirm, ‘[a] lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults.’ ” Although Kennedy did not cite the neuroscience evidence specifically, his indirect reference to the scientific studies in the briefs led some supporters and critics to view the decision as the Brown v. Board of Education of neurolaw.

PUTTING THE UNCONSCIOUS ON TRIAL...

Two companies, No Lie MRI and Cephos, are now competing to refine f.M.R.I. lie-detection technology so that it can be admitted in court and commercially marketed.

ARE YOU RESPONSIBLE FOR WHAT YOU MIGHT DO?....

Neuroscience, it seems, points two ways: it can absolve individuals of responsibility for acts they’ve committed, but it can also place individuals in jeopardy for acts they haven’t committed — but might someday.

WHAT IS AHEAD?

As the new technologies proliferate, even the neurolaw experts themselves have only begun to think about the questions that lie ahead. Can the police get a search warrant for someone’s brain? Should the Fourth Amendment protect our minds in the same way that it protects our houses? Can courts order tests of suspects’ memories to determine whether they are gang members or police informers, or would this violate the Fifth Amendment’s ban on compulsory self-incrimination? Would punishing people for their thoughts rather than for their actions violate the Eighth Amendment’s ban on cruel and unusual punishment? However astonishing our machines may become, they cannot tell us how to answer these perplexing questions. We must instead look to our own powers of reasoning and intuition, relatively primitive as they may be....neuroscience itself can never identify the mysterious point at which people should be excused from responsibility for their actions because they are not able, in some sense, to control themselves. That question, he suggests, is “moral and ultimately legal,” and it must be answered not in laboratories but in courtrooms and legislatures. In other words, we must answer it ourselves.