Saturday, September 14, 2019

GateHouse: Neurolaw: Discovering the past and the future

Matthew T. Mangino
GateHouse Media
September 13, 2019
The criminal justice system is not precise. The burden of proof in a criminal case is not guilt to a mathematical certainty or beyond all doubt. Proving an accused guilty of a crime does require a heavy burden - beyond a reasonable doubt - but it does not provide errorless outcomes.
As a result, there is a level of tolerance in criminal cases that an occasional innocent person will be convicted. Sure there are technological advances that have resulted in exonerations of people imprisoned for crimes they did not commit. Those advances, particularly DNA, when available, have provided a safety net for those falsely convicted.
How can science help investigators get it right the first time?
Eryn Brown wrote recently in Knowable Magazine, about Judge Morris B. Hoffman, of Colorado's 2nd Judicial District Court, a leader in neurolaw research. He predicted that neuroscientists are likely "in the next 10 to 50 years ... (to) be able to detect memories and lies, and to determine brain maturity."
If investigators were able to detect when someone is lying or recreate their memory, could that help insure that the guilty are convicted and the innocent are set free?
The primary element of most criminal statutes is intent. An actor's responsibility is often determined by whether their conduct was reckless or intentional. Stephen J. Morse,Professor of Law and the Associate Director of the University of Pennsylvania's Center for Neuroscience and Society, contends that his research "found that they were able to predict with a high degree of accuracy whether a person was in a knowing or reckless state and were also able to associate those mental states with unique functional brain patterns."
That finding is significant. Using science to determine intent would be a huge advancement in neurolaw. However, Morse's study was conducted in real time using MRI brain scans while the decisions were being made by the participants. Unfortunately, criminals don't wear devises that scan their brain when they act.
Morse and his colleagues admit as much when he wrote, "Even if several future studies confirm what we have observed here, that knowledge and recklessness are associated with different brain states, if human jurors cannot distinguish them behaviorally, then one may still ask whether they should be considered relevant to assessments of criminal liability."
The whole idea of neurolaw raises some concerns. Neurolaw is creeping into courtrooms across the country on an ever-increasing basis. Brown wrote, "In criminal courts, MRIs are most often used to assess brain injury or trauma ... (I)f a murder defendant's brain scan reveals a tumor in the frontal lobe, for instance, or evidence of frontotemporal dementia, that could inject just enough doubt to make it hard for a court to arrive at a guilty verdict."
That type of evidence is often used as mitigation, not that the accused didn't commit the crime, but that they are less responsible.
Science is not only looking back at what the brain can tell us about a criminal's state of mind at the time of a crime, but also what might happen in the future. In "Predicting violent behavior: What can neuroscience add?" the authors suggested that neuroprediction offers the potential to identify brain function that can distinguish the callous criminal from the immature or dysfunctional actor who might benefit from treatment or preventive programming.
Neuroscience is also being considered for use as a tool to predict who might be most likely to commit a crime in the future. What do we do with those individuals labeled as future criminals? Do we lock them up for crimes they haven't yet committed?
What role neurolaw plays in measuring culpability and predicting human behavior will best be left to ethicists, scientists and legal scholars.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner's Toll, 2010 was released by McFarland Publishing. You can reach him at and follow him on Twitter @MatthewTMangino.
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