Neuroscience Challenges the Law

brain-on-the-stand.jpgJeff Rosen’s article, The Brain on the Stand, in the March 11, 2007 issue of The New York Times Magazine explores how neuroscience (e.g. brain scans) is challenging our legal system.  Imagine using a brainscan rather than a polygraph to tell if someone is lying.  I like to highlight the questions that such technological breakthroughs raise and then set forth some precautions as we move forward into learning to use new tools.

The big question is: “What impact does a defective brain have on personal responsibility? Is personal responsibility any less if I say “My amygdala made me do it,” or “My unhappy childhood predetermined me,” or “My genes made me do it,” or “The devil in me made me do it?” I think brain defects should have little bearing on the verdict, but it should play a huge role in the sanctions (or rehabilitation).

Another question that suggests more practical potential is, “Can a brain scan tell more accurately than a polygraph if someone is telling the truth?” Two companies, No Lie MRI, and Cephos are competing now to get the accuracy past the 80-90% accuracy of current polygraph technology into the 90-95% accuracy.

A question that really bothers me is, “Can brain scans be used in jury selection by predetermining those who make judgments analytically versus emotionally?” A subset of this is, “Can a person’s inclination toward racial bias be measured with a brain scan?” On the law-breaker side of the fence, “Can persons be found guilty for what they think rather than what they do?”

I side with Stephen Morse, Professor of law and psychiatry at the University of Pennsylvania who believes that neuroscience is just another material, causal explanation of human behavior, and says “Brains do not commit crimes; people commit crimes.”

I just heard a lecture today at a CAPS Conference by Dr. Paul Vitz who offered a structure than puts this into proper perspective. In brief, Vitz offers at least six levels of explaining observations of human functioning, from primitive to complex, from mechanistic to transcendent: (1) biological, (2) neurological, (3) behavioral, (4) psychological, (5) philosophical and (6) theological. I may not have remembered the details accurately, but the point is that every level is involved in every other level and any detailed contribution of one level necessarily leaves out some details from the other levels. So when we look at neuroscience, we must remember that we are looking at a single primitive level of observation. In no way can these observations be seen as completely determinative.

When my father was teaching me to use a power saw, he was very careful to show me how to use it respectfully so I wouldn’t cut off a finger. May we use the new tools of neuroscience with humility and respect so we don’t do more harm than good.


5 Responses to Neuroscience Challenges the Law

  1. Catherine says:

    Thank you for a reminder that our personal dispositions do not excuse personal responsibility. It is a good reminder to know that there is an absolute right and wrong (especially in the legal system) regardless of motivation or predisposition.

    In this day of relativism, where people assume that truth is still “truth” even if it is only “true for you,” it is easy to allow this thinking to slip into moral decisions. People excused for hideous crimes because of brain disfunctions. Take this thinking to an extreme and you have acts of pedophelia legalized because “people are born that way.”

  2. leejagers says:

    Good to hear your thoughts, Catherine. I do think that the “guilty-not-guilty” part should be the same for everyone, independent of brain activity, but the sanctions that are imposed on the guilty person ought to take into account their mental capacity. Bottom line, however, the public needs to be protected against recurring crimes.

  3. Tina says:

    I agree with your comments, Lee. My question is, how do we protect the public from these time bombs while, at the same time, protect the individual? Our Constitution provides protection of our individual privacy and gives us a right against self-incrimination. How do you think we can balance these competing interests?

  4. leejagers says:

    Good question, Tina. You express concern over the balance between the safety of the public and the right to privacy of the individual. I think this tension will exist as long as people are inclined to lie and commit crimes against others. This is only the beginning of a long list of concerns I have about our legal system, but have never been able to come up with a better system this side of heaven.

  5. Steven Stolpman says:

    I suggest taking a look at the Japanese Leagal system, where all the power to investigate (i.e. the detective’s job) prosecute and essentially try a criminal is in the hands of the prosecutors. The reason this is interesting is that they have to use enormous self-control rather than adversarial legal battles to determine the fate of the suspect. What is really neat is that the prime m otivating factor isn’t “legality” or “proceedural truth” but rather Truth itsef. The first question is of course did they do it. some 80-90 percent of cases result in Confessions. This isn’ a cultural norm. No, they have 23 day interrogation/investigation periods. While Amnesty international doesn’t like that method, it doesn’t matter because 40% of those cases never go to trial. Repeat 40% of all cases that could go to trial, where the subject is capable of being tried Gulty, never go to Court. The reason is that the objective of the Prosecutors isn’t to assign a sentence or retribution. It’s is to determine the chance that you can become a “good citizen” once again. And to do that they look at the psychology and social situation of the perpetrator, as in what was the relationship to the vitim, are they sorry, are they married, do they have a steady job, are they in a sense integrated into society or are they a rebel through and through, in which case the penal system is all about re-socializing individuals. The recitivism rate of people who do go through the prison system is only slightly better than the rest of the world. But consider all the people that are allowed MERCY to reintigrate into society. They are spared the LABEL of even having been tried for a crime much less being an ex-con.
    Thus something like Brain Scans, skips past Proceedural Truth and cuts to the Truth. Which brings it down to quesions of repentance rather than retribution. So, the question is can our system bare that responsibility?

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