Neuroscience: The Next Frontier in Criminal Law?

Neuroscience is one of the tools that defense lawyers have adopted in recent years.  However, because it is so new, there have been a number of questions concerning its use in criminal law.  A recent article in the ABA Journal, Brain Trials: Neuroscience Is Taking a Stand in the Courtroom by Kevin Davis, introduces the use of neuroscience in criminal cases and discusses some of these questions.

Davis writes, "The case illustrates one of the challenges that lawyers, judges and defendants face in cases that bring together neuroscience and the law, where trying to explain the brain and human behavior can clash with how the legal system determines culpability, competency and the manner in which such cases should be handled. Defense lawyers are increasingly introducing high-tech brain images and citing studies that link brain injury and violence to explain, excuse or mitigate criminal behavior."

He continues, "Organizations such as the MacArthur Foundation Research Network on Law and Neuroscience—a cooperative of scientists, lawyers and researchers seeking to better understand this intersection of modern neuroscience and criminal law—are helping to sort through the morass. The network, funded through a grant from the John D. and Catherine T. MacArthur Foundation, is headquartered at Vanderbilt University in Nashville, Tenn., and led by Owen Jones, a professor of law and biology at Vanderbilt.  'There has been a growing use of neuroscience and the law, and one of the questions we have is how to interpret the neuroscience in a way that’s appropriate,' Jones says. 'It’s one of those things that holds both promise and terror for the legal system.'  Jones warns that neuroscientific evidence must be viewed and interpreted cautiously. 'Once you start going down this path that there’s this quirk in the brain that makes me not responsible for my actions, that makes people understandably concerned,' he says. 'It has to be weighed with other evidence.'”

The article quotes another law professor: "Nita Farahany, a professor of law and genome sciences and policy at Duke University, has been tracking criminal cases in which lawyers have introduced neuroscientific evidence since 2004. By combing legal opinions, she’s found about 2,000 examples, with 600 of those cases in 2011 alone. 'It’s increased exponentially,' Farahany says. And my database doesn’t even include cases that are settled before trial or never get to the appeals process.'  Farahany found neuroscientific evidence was most often used for capital mitigation, followed by competency hearings; the rest was presented during the guilt phases of a trial. She says about 20 percent of trials in which such evidence was used resulted in 'favorable outcomes' for criminal defendants, which includes reduction of charges or sentences. 'In some cases, the introduction of neuroscientific evidence has mitigated the extent of a defendant’s liability, but I am not aware of a case in which such evidence has exonerated a criminal defendant,' Farahany says.

The question of legal competency for those with brain injuries. . . is an area that deserves greater scrutiny, Farahany asserts. Brain-injured defendants may not fit the standard definition. It may be something like they have poor memory, are more impulsive than most, or are unable to exercise sound judgment, she says. In these cases, the ability of the criminal defendant to assist in their own defense is really quite limited. And yet this isn’t the way courts traditionally approach competency."

You can read the rest of the article here.

(Scott Fruehwald)