A report of the Royal Society, the UK's national academy of science, warns that using neuroscientific findings as evidence in a court of law at the present moment of time should be approached with great caution, even though scientists growing knowledge of the brain certainly will impact the law in the future.
The Royal Society looks for ways in which neuroscience could potentially offer insights to the law as well as current limits as to where it can be applied. The authors of the report call for a UK forum that would bring neuroscientists and legal professionals together to discuss new potentials and identify practical applications.
According to the report, areas of interest could include using technologies, such as imaging studies to serve as independent evidence of the severity of someone's pain for civil cases, or the possibility of using brain scans for 'mind-reading' and as a lie detector. It could also serve as neuroscientific evidence in cases of Non-Accidental Head Injury (NAHI) or Shaken Baby Syndrome (SBS) in infants. In addition, the report raises concerns about the unreasonably low age of criminal responsibility in the UK.
Brain Waves Module 4: According to a collaboration of experts in various academic and scientific fields, including law, neuroscience, psychology and ethics in 'Neuroscience and the Law' claims that killers can be identified through imaging studies of their brains taken prior to committing the crime, or the existence of a gene 'for' psychopathy, violent and antisocial behavior are completely far-fetched. However it does suggest that in the future, risk assessments for determining sentencing and probation of convicted individuals could potentially include the use of neuroimaging and behavioral genetics in addition to existing approaches.
A discussion on how scientists gain new insights into the development of the brain through neuroscience revealed that changes in significant neural circuits, which underpin behavior, continue until a person is at least 20 years old. This raises important questions in terms of the criminal age in the UK being only 10 years old, which according to some concerned neuroscientific experts in the report is being regarded as unreasonably low.
The report states that current functional imaging methods enable scientists to identify particular brain regions that become active during a painful experience. This enables others to relate to an individual's specific pain experience. The authors comment that science is close yet not absolutely certain in determining whether a particular person is genuinely experiencing pain or is suffering, and that it is therefore important to relay these developments to the legal profession and to medical expert witnesses. Given that technologies like these are currently used for diagnostic purposes to guide treatment and surgery makes it conceivable that this information will be used in courts of law at some point.
One of the more commonly cited areas in which neuroscience could impact the law is the potential to detect deception. Even though the authors refer to experiments in which students tested functional imaging and determined that neural activity is different in those who lie and those who tell the truth, they also provide numerous reasons as to why reliable functional MRI (fMRI) is not realistic in the foreseeable future. One of these reasons is that people can be taught countermeasures, which will defeat fMRI lie detectors.
The report's key recommendation is to undertake further research into characterizing and distinguishing Non-Accidental Head Injury (NAHI) or Shaken Baby Syndrome (SBS) from natural causes. According to current neuropathological research, scientists have identified potential indicators that strengthen diagnoses, yet existing methods of forensic diagnosis may not be sufficient enough in determining the cause.
According to Professor Nicholas Mackintosh FRS who is chair of the authors working group and Emeritus Professor at the University of Cambridge:
"Understanding how the brain works gives us an insight into the mental processes that underpin human behavior and as the law is primarily concerned with regulating people's behavior it make sense that the one may influence the other at some point down the line. There's no doubt neuroscience will provide some startling revelations about human behavior but we can't be allowed to get ahead of ourselves. At this point, our priority needs to be making sure that advances in neuroscience that may have impact on the law are communicated properly to professionals at all stages of the legal system so that when it becomes appropriate, neuroscience is used in court to the benefit of all involved."
The Royal Society published a collection of essays, which examine advances in the field of neuroscience in January 2011. The full essays can be downloaded here.
Written by Petra Rattue