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Neuropsychology

Neuroscience on trial

Ella Rhodes on a report from the US Presidential Commission.

17 April 2015

A recent report, compiled by the Presidential Commission for the Study of Bioethical Issues, has explored how often American courts currently use neuroscience in trials. Gray Matters: Topics at the Intersection of Neuroscience, Ethics and Society points out the potential benefits neuroscience could have to the US legal system in the future, while also advising caution.

The Bioethics Commission is a panel of leaders in medicine, science, ethics, religion, law, and engineering, advising the US President on issues arising from advances in biomedicine and related areas of science and technology. In its first volume of Gray Matters  Integrative Approaches for Neuroscience, Ethics, and Society – the Commission analysed why and how to achieve ethics integration early and explicitly throughout neuroscience research. This was in response to a Presidential request from 2013, with Barack Obama writing: ‘we should consider the potential implications of the discoveries that we expect will flow from studies of the brain, and some of the questions that may be raised by those findings and their applications - questions, for example, relating to privacy, personal agency, and moral responsibility for one's actions; questions about stigmatization and discrimination based on neurological measures of intelligence or other traits; and questions about the appropriate use of neuroscience in the criminal justice system, among others. It will also be important to consider these typesof questions as they relate to different life stages, from infancy through old age.’

Part two, pulled together from nine public meetings and consultation, states that neuroscience has become an integral part of the criminal justice system in the US. ‘In 2012 alone, over 250 judicial opinions – more than double the number in 2007 – cite the use of neuroscience by criminal defendants arguing their brain made them do it. Already, over 5 per cent of murder trials and 25 per cent of death penalty trials feature criminal defendants using neuroscience to argue for lesser responsibility or punishment.’

As well as being used by defendants, neuroscience evidence is used by prosecutors to predict potential future risk of offending or to assess competency to stand trial, and by defense attorneys as a mitigating factor in a person’s sentencing. The case of Peter Jordan Chiesa is outlined: he shot and killed two of his neighbours, and despite evidence of his planning the murders, Chiesa was convicted of the lesser offence of second degree murder after the jury saw brain scans which showed damage to his prefrontal cortex, temporal lobes and cerebellum, which the defense argued would affect his impulse control and temper.

Despite pointing out that the use of neuroscience in the courts is still in its infancy and therefore ‘might offer greater utility for guiding policy decisions rather than helping to resolve individual or criminal cases’, the report does postulate that it could allow for more accurate and empirical assessments of individuals’ intentions, motives, knowledge and mental states. ‘Already, defense attorneys have attempted to use neuroscience to try to prove something about individuals’ mental states, for example, that they lacked the ability to act with purpose.’ The authors conclude that gradual introduction of neuroscientific evidence and concepts, after they are validated, well-understood and interpreted accurately, could potentially be highly valuable.

Other topics covered in the report include cognitive enhancement, and capacity and the consent process. It concludes with ‘one overarching recommendation that pertains to all funders associated with the BRAIN Initiative’ - that it ‘should establish and fund organized, independent, multidisciplinary efforts to support neuroscience and ethics research and education’.