Does Neuroscience Belong in a Courtroom?

Dr. Joe Vukov’s talk on free will and if there might be a neurobiological basis to free will is a topic that holds a lot of potential. But, lets first define what free will is, and for the purposes of this discussion I will use a generally agreed on definition: free will is acting rationally, with reason, and without coercion (Vukov, 2017). If free will does indeed have some sort of neurobiological basis and researchers can better guess specific outcomes, conversations around the ethics of certain decisions will change to include neurobiological aspects of one’s brain and how that influenced them to act one way or another. This line of thought is already being used in court cases around the country, seeing the intersection of neuroscience and law, and just how influential neuroscientific evidence can be in a legal case. Does neuroscience belong in a courtroom?

The Intersection of Neuroscience and Law

An article published in the Atlantic, titled “The Brain Gets Its Day in Court” points out some of the trends and questions that come with using neuroscientific evidence in the courtroom, and remarks on its growing influence. They presented this case: A man named David Scott Detrich was drinking heavily one night with a co-worker and a lady they picked up in Tucson, Arizona. They managed to get some cocaine, went back to her place, and Detrich stabbed her 40 times and slit her throat. Afterwards, Detrich and his co-worker dispose of her body in the desert. Unsurprisingly, a jury found Detrich guilty, and back in 1995 he was convicted of kidnapping and first-degree murder, looking at the death sentence.

Here’s the surprising part: while Detrich is still on death row, in 2010 his lawyers managed to have a federal appeals court agree that Detrich had received “ineffective assistance of counsel” because the legal team originally on the case did not present any evidence of neuropsychological abnormalities and/or brain damage that, if present, might have resulted in a lesser sentence. This case is one of many analyzed by Nita Farahany at Duke University, meaning that there are many more cases that include neuroscientific evidence now more than ever. In fact, according to her article published in 2016, the number of judicial opinions that mention neuroscience more than doubled between the years of 2005 and 2012 (Farahany, 2016).  In the case of Detrich, the federal appeals process, Detrich “had been denied his Constitutional right to a fair trial because his lawyers hadn’t called an expert witness to talk about his brain.” (Miller, 2016) In Farahany’s work, she “found that in cases that used neuroscientific evidence, defendants got a favorable outcome.” (Miller, 2016) For judges and the jury, presenting something like a brain scan makes the case more compelling. Much like Detrich’s case, much of the evidence presented uses behavioral genetics or neuroscience to provide some sort of reductionist basis to explain a criminal’s actions.

This does not come without its concerns, however. Scientists understand the growth of neurobiological evidence in criminal law, and most are against its use in the courtroom. Questions such as definitions of certain words like violence and aggression are called into question. What makes a crime petty or violent? Without first establishing these definitions, it’s hard to draw the line.  Using scans seems to  inherently convince people that “good research” had been conducted, but the truth of the matter is they either are not familiar with neuroscience or will listen to the expert witness in the white coat and take all information at face value. By using scientific evidence in the courtroom, concerns of reproducing data to ensure validity begin to arise.

Brain scans being presented in a courtroom

One parting thought is, however, neuroscientific evidence in the courtroom is here to stay. According to Farahany, using neuroscience properly holds the promise of better understanding decision-making, and banning it completely would not be productive. (Farahany, 2016)  It is important, however, to understand that it is a combined effort between neuroscientists/neurologists and lawyers alike. The worry is, “...just as neuroscientists go too far in calling for an outright ban, defense attorneys are guilty of overstating the science.” (Farahany, 2016) While it is hard to identify how influential the evidence might be, it must be exercised with caution from both sides of the courtroom. Neuroscientific evidence will remain in courtrooms, and perhaps continue to grow, especially when biomarkers for things like impulsiveness are predicted with higher accuracy.

References

(Image) The Brain on Trial: Neuroscience and Law. World Science Festival (n.d.). Retrieved October 15, 2017, from https://www.youtube.com/watch?v=Ra2niqQhR8M

(Image) Is neuroscience a defense for criminal behavior? Chicago Reader (n.d.). Retrieved October 15, 2017, from https://www.chicagoreader.com/chicago/brain-defense-kevin-davis-crime-neuroscience/Content?oid=25706479

Farahany, Nita A. "Neuroscience And Behavioral Genetics In US Criminal Law: An Empirical Analysis." Journal of Law and the Biosciences (2016): n. pag. Web.

Miller, Greg. "The Growing Influence Of Neuroscience In The Courtroom." The Atlantic. N.p., 2016. Web. 15 Oct. 2017.

Vukov, J. (2017). Speech presented at Neuroscience Seminar, Loyola University Chicago.