The Future of Neurolaw

EUROPEAN JOURNAL OF CURRENT LEGAL ISSUES, VOL 22, NO 2 (2016) The Future of Neurolaw Author: Paul Catley[1] Over a decade ago Joshua Greene and Jonathan Cohen in their seminal article wrote: 'For the law, neuroscience changes nothing and everything'.[2] Scholarly interest in the intersection between law and neuroscience is developing very quickly. This is demonstrated by this graph produced by the MacArthur Foundation's Research Network on Law and Neuroscience.[3] It is also clear that the investment in the brain sciences is currently immense. In 2012 the ten year budget of the European Union's Human Brain Project was estimated at €1.19 billion.[4] President Obama launched the USA's BRAIN[5] Initiative in 2013 by pledging $100 million of State funding for the coming year with a similar amount pledged for each of the next ten years by private donors.[6] The focus on brain research is not new the then President of the United States, George Bush, had declared the 1990s 'the Decade of the Brain'.[7] Whereas the aim of the Decade of the Brain was to 'enhance public awareness of the benefits to be derived from brain research',[8] the aims of the Human Brain Project and of the BRAIN Initiative are to provide public and private money to take that brain research forward.[9] The question for the law and for society more generally is what will that research find and what will be the implications of those findings. 1. THE CURRENT SITUATION Neuroscience is already appearing in the courtroom. In England and Wales, a claimant seeking damages for a brain injury will, commonly, call neuroimaging evidence not just to prove the injury suffered, but also to inform the prognosis in terms of likely impact on future earning potential and likely future need for care and rehabilitation.[10] Similarly, prosecutors will call neuroscientific evidence to prove the likely cause of injury to victims [11] or to assess the extent of injury: issues that can be critical in determining the appropriate charge and the maximum potential sentence.[12] The number of US cases in which neuroscientific evidence is used has been calculated as having doubled from 2006 to 2009.[13] Indeed, in the United States it is fast approaching a situation where defence attorneys would be potentially negligent if they failed to gather brain scan evidence for a client facing a capital sentence.[14] The United States is not the only country in which defence teams will make use of brain scan evidence. Parallel research in the United States,[15] the Netherlands,[16] Singapore,[17] Canada[18] and in England and Wales[19] found defence lawyers in all jurisdictions making use of neuroscientific evidence to support their clients. The English research found 204 reported cases in the eightyear period from 20052012 in which those representing people accused of criminal offences attempted to make use of neuroscientific evidence. In cases of alleged nonaccidental head injury and sudden infant death syndrome[20] neuroscientific evidence has been critical in overturning convictions for murder[21] and reducing convictions from murder to manslaughter.[22] This type of evidence has not been restricted to injuries to children. In Halling[23]scan evidence of the victim was introduced to try to argue that the fatal head injury had been sustained in selfdefence.[24] Neuroscientific evidence has also been introduced in the English courts to challenge the reliability of witness testimony. In R v X[25] a conviction was ruled unsafe following evidence from an expert witness for the appellant that 'during the first five years of life, the frontal lobes of the brain rapidly change and that material was not retained in memory'.[26] This has the effect that childhood memories are 'qualitatively different from later memories'.[27] However, subsequently the Court of Appeal has ruled that research in this area is not sufficiently advanced and has excluded expert evidence on the reliability of childhood memories.[28] This illustrates the problems for the law in deciding whether or not to admit expert evidence in areas where there is not yet consensus. On the one hand it can be argued that unreliable and unverified evidence should be excluded. On the other hand, there is a need for the law to keep abreast of scientific developments, otherwise the exclusion of evidence may lead to injustice. The comment of Judge LJ on expert evidence in R v Cannings is particularly apposite: "We cannot avoid the thought that some of the honest views expressed with reasonable confidence in the present case (on both sides of the argument) will have to be revised in years to come, when the fruits of continuing medical research, both here and internationally, become available. What may be unexplained today may be perfectly well understood tomorrow. Until then, any tendency to dogmatise should be met with an answering challenge."[29] The English research suggests that neuroscientific evidence on behalf of those accused is more commonly introduced where the offence charged is a serious offence carrying a lengthy maximum sentence.[30] The evidence is used to support appeals against conviction[31] and appeals against sentence.[32] Whilst the neuroscientific evidence is very significant in some cases,[33] in a majority of the appeals against conviction examined the appeal failed.[34] The research from the United States presents a similar picture, the number of cases identified is greater, but very broadly in line when relative populations are taken into account.[35] In both England and Wales and in the USA where specific neuroimaging technologies were mentioned as having been undertaken the type of scan most commonly used in both jurisdictions were Magnetic Resonance Imaging (MRI) and Computerised Tomography (CT or CAT scans) suggesting that the use of structural neuroimages in the courtroom is much more widespread than the use of functional neuroimaging. The term 'neurolaw' dates back to at least 1991.[36] The use of the term can be linked to other disciplines which have similarly had the prefix "neuro" added.[37] The term neurolaw suggests a new type of law. However, at present, this is probably not warranted. It can be said that neuroscience, particularly cognitive neuroscience, is having an impact on the law, but it is not yet transformative. Advances in brain sciences are having an impact in assisting legal systems in assessing the seriousness of brain injuries, their causes and the likely prognosis of those who have sustained them. Neuroscience is helping to assess criminal responsibility and mental capacity as well as being used to assess risk. However, whilst useful, this is not 'changing everything' to use the words of Greene and Cohen. The question that will be explored in the rest of this article is whether neuroscience and in particular cognitive neuroscience could transform the law. 2. FREEWILL Greene and Cohen's celebrated essay looks, inter alia, at freewill and questions whether our conception that we make choices can survive advances in neuroscience.[38] From a hard determinist standpoint freewill is an illusion. All events are the results of prior causes operating according to the laws of nature.[39] Every event is causally determined including human action. The idea of an uncaused causer has no place in this world view. For the law such a world view is potentially very challenging. Law and in particular the criminal law is built on the assumption that individuals normally have choice and that they are to be judged on the basis of the choices that they make. This is not a new phenomenon, in the mid eighteenth century Blackstone wrote: 'the concurrence of the will, when it has the choice either to do or to avoid the fact in question, being the only thing that renders human actions either praiseworthy or culpable. Indeed, to make a complete crime, there must be both a will and an act.'[40] This idea of both a will and an act can be seen in the requirement for most crimes of both a physical act (actus reus) and a mental element (mens rea), but Blackstone's statement also importantly has a focus on choice. This belief in a capacity of the individual to make choices remains a central underpinning of the law. Two hundred years after Blackstone, Hart wrote: 'unless a man has the capacity and a fair opportunity or chance to adjust his behaviour to the law its penalties ought not to be applied to him.'[41] More recently the Law Commission for England and Wales have stated that: 'A person with no possibility of making any choice whose action is in that sense "automatic" does not have the capacity to control his or her actions.'[42] In the view of the Law Commission such a person should be entitled to a defence to any criminal charge.[43] If hard determinists are correct then nobody has choice. Benjamin Libet's experiment is often cited as evidence that our belief that we choose is an illusion.[44] In the experiment the participant has electroencephalogram (EEG) electrodes attached to her scalp. She sits in front of an oscilloscope timer and presses a button when she feels the urge to do so. She then records where the timer hands were when she first felt the urge to press the button. The experiment found that brain activity preceded the participant's perception as to when she first felt the desire to press the button. On average the brain activity took place 350 milliseconds (ms) before the participant reported starting to feel the urge to press the button. Whilst the test has been replicated, the interpretation of its findings remain controversial: with many objecting to an interpretation that the test demonstrates that free will is an illusion.[45] Proponents of a belief that we have choice in whether or not to act can point to the fact that according to Libet's findings there is a further delay (on average 150 ms) between the reported timing of the first urge to press the button and the actual pressing of the button.[46] This allows, it is argued, for an opportunity to veto the action.

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