Does neuroscience help us understand the criminal mind?

When someone is charged with a serious crime, say, for instance, a murder do we have any neurological tests that will help us answer such questions “Was this person stable when he committed the crime?” or “Should he be held accountable under the law for his criminal actions?”

These kinds of questions were posed in a recent article in the American Bar Association Journal. In the article, written by Kevin Davis, it was pointed out that millions of dollars have been spent on research to better understand the human brain. Yet, the article wondered if a host of legal questions could be answered today – any better than in past decades.

“What’s going on in a person’s brain is relevant to so many domains of law,” says Owen Jones, director of the research network and the Glenn M. Weaver, M.D., and Mary Ellen Weaver Chair in Law, Brain and Behavior at Vanderbilt Law School. “Historically, there’s been no way to make those assessments,” Jones adds. “When you’re trying to understand the multiple causes of a person’s behavior, you want to try to understand what’s giving rise to their mental states.”

There is no doubt, Davis points out, that criminal defense lawyers use or cite neuroscience to help mitigate or explain their clients’ behavior. For example, it has been found that between 2005 and 2015, there were more than 2,800 judicial opinions in which neuroscience played a role.

A crucial element of criminal law is whether the accused had knowledge and intent to commit a crime. Without such an intent, the defendant could not be considered responsible. But that’s tricky for judges and juries to figure out. There is some research that suggests that while lying inside an fMRI (functional magnetic resonance imaging) scanner, researchers can accurately predict which subjects have knowledge about intent. This is possible in a laboratory setting, but what about in a police station or a courtroom?

Gideon Yaffe, a professor of jurisprudence, of psychology and of philosophy at Yale Law School, and a researcher, says we are not there yet.

Anthony Wagner, a professor of psychology and neuroscience and director of the Memory Lab at Stanford University, has concluded that brain scans have been helpful in determining when someone is telling the truth (another critical element in criminal trials), the technology is not ready for the courtroom. Theoretically, lawyers or law enforcement officers might someday employ fMRI scanners while having defendants look at photos of crime scenes or crime victims to see whether they trigger brain activity associated with memories. Wagner notes the research is still in its nascent stage, far from being used in legal settings. “I’m very cautious when it comes to application where the stakes really matter. In a legal setting, the freedom and liberty of a defendant might be at stake; similarly, reaching a just outcome for a victim is important, and it would be a travesty if unproven brain technology were to lead to an unjust outcome,” he says. 

With millions spent in research and the on-going efforts to make neuroscience applicable to real life situations, many judges, lawyers and law students across the country have been learning more about the intersection of law and neuroscience. This is thanks in large part to Francis Shen, a scholar, researcher and educator. He’s a professor at the University of Minnesota Law School, where he runs the Shen Neurolaw Lab and is executive director of education and outreach for the MacArthur Foundation Research Network on Law and Neuroscience.

“We’re not in the business of trying to sell our wares or to promote neuroscience in the courtroom but to focus on those things that are known and acknowledge those things that are unknown,” Shen says. “We try to engage in dialogue and open up a conversation about where this might be useful in your work. I think there’s been an increasing amount of interest. We also have presented things very cautiously, identifying the various flaws.”
Shen created his neurolaw lab to bridge science and law in a meaningful way and explore new ways of thinking. “If there’s one thing I’d like to do with my lab, it is to communicate with the legal community that the brain is really this important,” he says. “Every story is a brain story. If you get that far, then to me, all the questions that law asks get reshaped—in some form—as … brain [questions].”

The ABA Section of Science & Technology Law has been watching these developments, and it partnered with the MacArthur Foundation to sponsor The Future of Law and Neuroscience conference in Chicago in 2013. Eric Drogin and Carol Williams, co-chairs of the section’s Committee on Behavioral and Neuroscience Law, agree that while the research is exciting, it’s far from solving age-old legal problems. “They’re not there yet,” Drogin says. “There is much to discuss, but at this point a lot of it is merely speculative.”

As almost everyone in law and neuroscience agrees, there is still a great deal of work that needs to be done. 
This article appeared in the June/July 2020 issue of the ABA Journal under the headline: “Brain Matters: Millions have been invested in the emerging field of neurolaw. Where is it leading?.”

Read the complete article here: 
Millions have been invested in the emerging field of neurolaw. Where is it leading?

Written by James Windell, MA

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Steven Ceresnie - Tuesday, September 01, 2020

See Sally Satel and Scott Lilienfeld in their book, “Brainwashed.” The Seductive Appeal of Modern Neuroscience,” for a discussion of using the brain in the diagnosis of criminal behaviors. Steve Ceresnie

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