Monday, November 11, 2013

The More We Know About the Brain, the More the Impact on Criminal Law


My Brain Made Me Do It Defense

Just when we had come to terms with the idea that "sometimes" the insantity defense isn't itself insane when applied to mass murderers and other miscreants, now it would appear that more and more defendants are convincing judges and juries that brain malfunctions may have caused them to stick up the local pharmacy.  Ian Sample of the Guardian reports:

US courts see rise in defendants blaming their brains for criminal acts

Legal expert to Obama tells Society for Neuroscience meeting those on trial mounting ever more sophisticated defences
Neuroscience
 

Nita Farahany, a professor of law who sits on Barack Obama's bioethics advisory panel, told a Society for Neuroscience meeting in San Diego that those on trial were mounting ever more sophisticated defences that drew on neurological evidence in an effort to show they were not fully responsible for murderous or other criminal actions.

Lawyers typically drew on brain scans and neuropsychological tests to reduce defendants' sentences, but in a substantial number of cases the evidence was used to try to clear defendants of all culpability. "What is novel is the use by criminal defendants to say, essentially, that my brain made me do it," Farahany said following an analysis of more than 1,500 judicial opinions from 2005 to 2012.

The rise of so-called neurolaw cases has caused serious concerns in the country where brain science first appeared in murder cases. The supreme court has begun a review of how such evidence can be used in criminal cases...

The survey even found cases where defendants had used neuroscience to argue that their confessions should be struck out because they were not competent to provide them. "When people introduce this evidence for competency, it has actually been relatively successful," Farahany said...

Despite the fact that the science is often poorly understood, and that some experts say it is too flimsy to use in court, such evidence has succeeded in reducing defendants' sentences and in some cases clearing them of guilt altogether.

The number of neurolaw cases rose from 100 to 250 a year over the eight-year survey. In 2005, neuroscience appeared in 30 felony cases that did not involve homicide. That number rose to more than 100 in 2012.

Evidence submitted to the US courts ranged from accounts of head injuries to apparent structural or functional abnormalities picked up by brain scans. Lawyers argued that these affected defendants' behaviour by making them more violent, more impulsive, or incapable of planning a crime.Some defendants escaped death sentences on the basis of neurological evidence. Others complained of poor legal assistance when their lawyers failed to have them tested for brain impairments.

Farahany said judges and lawyers urgently needed educating in neuroscience to understand its uses and limitations: lie tests based on brain scans are not infallible, and many brain studies on "criminal minds" draw statistical conclusions from populations and cannot reliably be applied to individuals.
"Law asks questions that science can't answer, and science answers questions that law doesn't ask. You can't leap from a dynamic brain scan to notions of responsibility," said Nigel Eastman, professor of law and ethics in psychiatry at St George's, University of London.

"If you look at functional brain imaging of psychopaths, there's emerging evidence that as a population, people measured as psychopaths psychologically show some slightly abnormal brain scans, but that doesn't mean you can take an individual and do a brain scan and say, 'He's got an abnormal brain.'"

But there are cases where abnormalities in the brain cause criminal behaviour. In 2002, Russell Swerdlow and Jeffrey Burns, neurologists at the University of Virginia medical centre, reported the case of a 40-year-old schoolteacher from Virginia who developed sudden, impulsive paedophilia and was convicted of child molestation. He was signed up for rehabilitation, but was kicked off for propositioning staff.

The evening before the man was sentenced, he complained of a headache and being unsteady on his feet. He was taken to hospital, where doctors found an egg-size tumour in his right orbitofrontal cortex. Once surgeons had removed the tumour, the man's urges disappeared and he was allowed home.

When the man later started collecting child pornography, an MRI scan found that his tumour had grown back. His behaviour returned to normal when the tumour was removed for the second time.
One problem facing the legal system centres on the definition of responsibility. In a rising number of cases, defendants have argued that even though they committed a crime, they cannot be held responsible because their brains made them impulsive, or violent, or incapable of premeditating a crime.

"The question is, how do we best use this evidence in ways that are appropriate, while recognising there are areas where we do things wrong in criminal law and need to improve upon them?" said Farahany.

"A lot of early failures of this evidence in criminal cases could lead to a bias against its validity and its use for a long time to come, so using it for inappropriate claims and stretching the science beyond what it actually says can be devastating," she added.

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