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 www.mattmangino.com and follow him
on Twitter @MatthewTMangino.
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