The brain, the criminal and the courts

Eryn Brown
knowablemagazine.org
Originally posted August 30, 2019

Here is an excerpt:

It remains to be seen if all this research will yield actionable results. In 2018, Hoffman, who has been a leader in neurolaw research, wrote a paper discussing potential breakthroughs and dividing them into three categories: near term, long term and “never happening.” He predicted that neuroscientists are likely to improve existing tools for chronic pain detection in the near future, and in the next 10 to 50 years he believes they’ll reliably be able to detect memories and lies, and to determine brain maturity.

But brain science will never gain a full understanding of addiction, he suggested, or lead courts to abandon notions of responsibility or free will (a prospect that gives many philosophers and legal scholars pause).

Many realize that no matter how good neuroscientists get at teasing out the links between brain biology and human behavior, applying neuroscientific evidence to the law will always be tricky. One concern is that brain studies ordered after the fact may not shed light on a defendant’s motivations and behavior at the time a crime was committed — which is what matters in court. Another concern is that studies of how an average brain works do not always provide reliable information on how a specific individual’s brain works.

“The most important question is whether the evidence is legally relevant. That is, does it help answer a precise legal question?” says Stephen J. Morse, a scholar of law and psychiatry at the University of Pennsylvania. He is in the camp who believe that neuroscience will never revolutionize the law, because “actions speak louder than images,” and that in a legal setting, “if there is a disjunct between what the neuroscience shows and what the behavior shows, you’ve got to believe the behavior.” He worries about the prospect of “neurohype,” and attorneys who overstate the scientific evidence.

The info is here.

The status of NeuroLaw: A plea for current modesty and future cautious optimism

By Stephen J. Morse
Journal of Psychiatry and Law
39/Winter 2011

Abstract

Legislators, jurists, and advocates often turn to science to solve complicated normative problems addressed by the law.  This article addresses what motivates these parties, surveys the psychology of law and its concepts of the person and responsibility, and describes the general relation of neuroscience to law in terms of the issue of “translation.”  Numerous distractions have clouded our understanding of the relationship between scientific, causal accounts of behavior and responsibility. The notion of “NeuroLaw” is examined here in detail, with the conclusion that a cautious optimism regarding the contributions of neuroscience to the law is warranted.

The entire article is here.

Is Neurolaw Conceptually Confused?

By Neil Levy
J Ethics. 2014 Jun 1;18(2):171-185.

Abstract

In Minds, Brains, and Law, Michael Pardo and Dennis Patterson argue that current attempts to use neuroscience to inform the theory and practice of law founder because they are built on confused conceptual foundations. Proponents of neurolaw attribute to the brain or to its parts psychological properties that belong only to people; this mistake vitiates many of the claims they make. Once neurolaw is placed on a sounder conceptual footing, Pardo and Patterson claim, we will see that its more dramatic claims are false or meaningless, though it might be able to provide inductive evidence for particular less dramatic claims (that a defendant may be lying, or lacks control over their behavior, for instance). In response, I argue that the central conceptual confusions identified by Pardo and Patterson are not confusions at all. Though some of the claims made by its proponents are hasty and sometimes they are confused, there are no conceptual barriers to attributing psychological properties to brain states. Neuroscience can play a role in producing evidence that is more reliable than subjective report or behavior; it therefore holds out the possibility of dramatically altering our self-conception as agents and thereby the law.

The entire article is here.