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An Empirical Study of the Use of Neuroscientific Evidence in Sentencing in New South Wales, Australia

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An Empirical Study of the Use of Neuroscientific Evidence in Sentencing in New South Wales, Australia An Empirical Study of the Use of Neuroscientific Evidence in Sentencing in New South Wales, Australia Armin Alimardani A thesis in fulfilment of the requirements for the degree of Doctor of Philosophy School of Law Faculty of Law March 2019 THE UNIVERSITY OF NEW SOUTH WALES – Thesis/Dissertation Sheet Surname or Family name: Alimardani First name: Armin Other name/s: N/A Abbreviation for degree as given in the University calendar: PhD School: Law Faculty: Law Title: An Empirical Study of the Use of Neuroscientific Evidence in Sentencing in New South Wales, Australia ABSTRACT In the neurolaw literature there are many debates and claims associated with the increasing use of neuroscience in law. These claims can be sorted into three broad categories: predictive claims that assert how neuroscientific evidence will be used or will influence the application of criminal law principles in the future; descriptive claims about how neuroscientific evidence is being used in practice; and normative claims which assert how neuroscientific evidence ought to be used in practice. While it has been at least 40 years since the first use of neuroscience in Australian courts, neurolaw claims have not been substantiated by comprehensive and systematic empirical research on how neuroscience is used in practice. Thus prior to this thesis it was unclear whether the actual approach of the courts is consistent with claims of various neurolaw scholars. To fill this substantial void, this thesis offers an empirically oriented review of seven claims about the introduction and use of neuroscientific evidence applied to sentencing courts in New South Wales, Australia. To pursue this research, a comprehensive and systematic search was conducted on three databases finding 214 decisions before 2016 in which neuroscientific evidence was discussed. These cases were then coded, and analysed. The findings of the study suggest that there are some inconsistencies with the neurolaw claims and how neuroscientific evidence is being used in practice. Although not all these inconsistencies warrant concern, there appears to be a need for practice-oriented instruments and guidelines about the use of neuroscience in practice. DECLARATION RELATING TO DISPOSITION OF PROJECT THESIS/DISSERTATION I HEREBY GRANT TO THE UNIVERSITY OF NEW SOUTH WALES OR ITS AGENTS THE RIGHT TO ARCHIVE AND TO MAKE AVAILABLE MY THESIS OR DISSERTATION IN WHOLE OR IN PART IN THE UNIVERSITY LIBRARIES IN ALL FORMS OF MEDIA, NOW OR HERE AFTER KNOWN, SUBJECT TO THE PROVISIONS OF THE COPYRIGHT ACT 1968. I RETAIN ALL PROPERTY RIGHTS, SUCH AS PATENT RIGHTS. I ALSO RETAIN THE RIGHT TO USE IN FUTURE WORKS (SUCH AS ARTICLES OR BOOKS) ALL OR PART OF THIS THESIS OR DISSERTATION. I ALSO AUTHORISE UNIVERSITY MICROFILMS TO USE THE 350 WORD ABSTRACT OF MY THESIS IN DISSERTATION ABSTRACTS INTERNATIONAL (THIS IS APPLICABLE TO DOCTORAL THESES ONLY). 23 April 2019 ……………………………………………………. ……………..….......……………..…....... ………..................... Signature Witness Signature Date The University recognises that there may be exceptional circumstances requiring restrictions on copying or conditions on use. Requests for restriction for a period of up to 2 years must be made in writing. Requests for a longer period of restriction may be considered in exceptional circumstances and require the approval of the Dean of Graduate Research. FOR OFFICE USE ONLY Date of completion of requirements for Award: I ORIGINALITY STATEMENT ‘I hereby declare that this submission is my own work and to the best of my knowledge it contains no materials previously published or written by another person, or substantial proportions of material which have been accepted for the award of any other degree or diploma at UNSW or any other educational institution, except where due acknowledgement is made in the thesis. Any contribution made to the research by others, with whom I have worked at UNSW or elsewhere, is explicitly acknowledged in the thesis. I also declare that the intellectual content of this thesis is the product of my own work, except to the extent that assistance from others in the project's design and conception or in style, presentation and linguistic expression is acknowledged.’ Signed ................................................................. Date 23/04/2019 II 23/Jul/2019 23/Jul/2019 III INCLUSION OF PUBLICATIONS STATEMENT UNSW is supportive of candidates publishing their research results during their candidature as detailed in the UNSW Thesis Examination Procedure. Publications can be used in their thesis in lieu of a Chapter if: • The student contributed greater than 50% of the content in the publication and is the “primary author”, ie. the student was responsible primarily for the planning, execution and preparation of the work for publication • The student has approval to include the publication in their thesis in lieu of a Chapter from their supervisor and Postgraduate Coordinator. • The publication is not subject to any obligations or contractual agreements with a third party that would constrain its inclusion in the thesis Please indicate whether this thesis contains published material or not. This thesis contains no publications, either published or submitted for publication ☐ Some of the work described in this thesis has been published and it has been ☒ documented in the relevant Chapters with acknowledgement This thesis has publications (either published or submitted for publication) ☐ incorporated into it in lieu of a chapter and the details are presented below CANDIDATE’S DECLARATION I declare that: • I have complied with the Thesis Examination Procedure • where I have used a publication in lieu of a Chapter, the listed publication(s) below meet(s) the requirements to be included in the thesis. Name Signature Date (dd/mm/yy) Armin Alimardani 23/04/2019 Postgraduate Coordinator’s Declaration I declare that: • the information below is accurate • where listed publication(s) have been used in lieu of Chapter(s), their use complies with the Thesis Examination Procedure • the minimum requirements for the format of the thesis have been met. PGC’s Name PGC’s Signature Date (dd/mm/yy) IV Publications and presentations arising from this dissertation Publications Alimardani, A, Chin, J (2019) Neurolaw in Australia: The Use of Neuroscience in Australian Criminal Proceedings, Neuroethics https://doi.org/10.1007/s12152-018-09395-z Alimardani, A (2018) Neuroscience, Criminal Responsibility and Sentencing in an Islamic Country: Iran, Journal of Law and Biosciences, Oxford University Press, doi:10.1093/jlb/lsy024 Presentations Alimardani, A (2018) A Shift from Retribution and Towards Consequentialism: An Empirical Study of the Use of Neuroscience in Australian Courts. Presented in The 31th annual Australian and New Zealand Society of Criminology (ANZSOC) conference, Melbourne, Australia. Alimardani, A, Vincent, N. A (2018) Doing Time: Neuroscience and Custodial Sentencing, Presented in The 12th annual ANZSOC Postgraduate and Early Career Research Conference, Melbourne, Australia. Alimardani, A, Vincent, N. A. (2018), Doing Time: Neuroscience and Custodial Sentencing, Poster session in NEUROSCIENCE & SOCIETY: Ethics, Law, and Technology Conference, Sydney, Australia Alimardani, A (2018) Neurolaw in Australia: An Empirical Study of the Use of Neuroscientific Evidence in Sentencing, Presented at NEUROSCIENCE & SOCIETY: Ethics, Law, and Technology Conference, Sydney, Australia Alimardani, A (2017) Neuro-time-relativity and Sentencing: How Subjective Perception of Time may Change the Length of the Prison Sentence, presented at Law, Technology and Innovation (LTI) Junior Scholars Forum, Faculty of Law, UNSW and accepted in The 10th Melbourne Doctoral Forum on Legal Theory Melbourne Law School – this paper only presented at LTI Junior Scholars Forum UNSW. V Armin Alimardani, Jason M. Chin (2017) Neurolaw in Australia: The Use of Neuroscientific Evidence in Criminal Proceedings, Presented in The 30th annual Australian and New Zealand Society of Criminology (ANZSOC) conference, Canberra, Australia. Armin Alimardani, Jason M. Chin, (2017) Neurolaw in Australia: The Use of Neuroscientific Evidence in Criminal Proceedings, Poster session presented at the annual meeting of Neuroscience and Society: Ethical, Legal & Clinical Implications of Neuroscience Research Conference, Sydney, Australia. Alimardani, A (2017) The Emergence of Neuroscience as a Commonly Admitted Type of Evidence in Australian Criminal Courts: How it Happened and Why We Should Care, The 30th annual Australian and New Zealand Society of Criminology (ANZSOC) conference, Canberra, Australia. Alimardani, A (2017) Uncovering Infamous Biological Theories Buried in the Criminal Justice System: An Empirical Study of the Use of Neuroscience in Australian Criminal Courts, Presented in The 11th annual ANZSOC Postgraduate and Early Career Research Conference, Canberra, Australia. Alimardani, A (2016) Explaining crime in criminal proceedings: Towards a new approach, Presented in The 29th Annual Australian and New Zealand Society of Criminology conference, Hobart, Australia Alimardani, A (2016) Explaining Crime: Contributing Factors within a Multilayered Network (CFMN), Presented in The 10th ANZSOC Postgraduate & Early Career Researcher Conference (PECRC), Hobart, Australia VI TABLE OF CONTENTS DEDICATIONS .............................................................................................................................XI ABSTRACT ...............................................................................................................................
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