1 The Potential Contribution of Neuroscience to the CriminalJustice System of New Zealand SARAH MURPHY I INTRODUCTION Descriptions of "neurolaw", the legal discipline governing the intersection of law and neuroscience, span a continuum from "contribut[ing] nothing more than new details"' to ushering in "the greatest intellectual catastrophe in the history of our species". This controversy is not unwarranted. The "technological wizardry"3 of modern neuroscience tracks the movement of fluids and electrical currents, revealing both structure and organic functioning, and is the closest humans have come to "mind reading". While not unwarranted, the controversy's reactionary nature gives the misleading impression that neurolaw is a modem invention. In fact, neurolaw's historical roots are evident in the law's foundational preoccupation with concepts of mens rea and moral desert.' Connections between criminal behaviour and brain injury appeared as early as 1848,1 with biological positivism making formal - and sinister - progress at the end of the 19th century.6 Current legal applications of neuroscience both continue this story and reflect a wider trend of science gaining popular trust and interest from the courts.' Such applications have been proposed t Winner of the 2011 Minter Ellison Rudd Watts Prize for Legal Writing. * BSc (Biological Sciences)/LLB(Hons). The author would like to thank Professor Warren Brookbanks of the University of Auckland Faculty of Law, for his advice during the writing of this dissertation and an earlier, related research paper. I Joshua Greene and Jonathan Cohen "For the law, neuroscience changes nothing and everything" (2004) 359 Phil Trans R Soc Lond B 1775 at 1775. The authors summarise the position taken in Stephen Morse "New neuroscience, old problems" in Brent Garland (ed) Neuroscience and the Law: Brain, Mind, and the Scales of Justice (Dana Press, New York, 2004) 157 at 157-198. 2 Stephen Morse "Criminal Responsibility and the Disappearing Person" (2007) 28 Cardozo L Rev 2545 at 2556 ["The Disappearing Person"]. Morse quotes Jerry Fodor Psychosenanics: The Problen of Meaning in the Philosophy ofMind (The MIT Press, Cambridge, 1987) at xii. 3 George Annas "Foreword: Imagining a New Era of Neuroimaging, Neuroethics, and Neurolaw" (2007) 33 AJLM 163 at 163. 4 See Amanda Pustilnik "Violence on the Brain: A Critique of Neuroscience in Criminal Law" (2009) 44 Wake Forest L Rev 183 at 212-213. 5 Ibid. Pustilnik describes the case of Phineas Gage, a railway worker whose changed personality (due to a serious brain injury) not only seemed to make him more ill-tempered but may have also encouraged his minor encounters with the law. 6 Ibid, at 183; Brent Garland and Mark Frankel "Considering Convergence: A Policy Dialogue about Behavioral Genetics, Neuroscience, and Law" (2006) 69 LCP 101 at 109-110. 7 "The influence of forensic science in relation to criminal justice has risen sharply in recent years": Wallace v R [20101 NZCA 46 at [51] per Hammond J. See also Michael Gazzaniga "The Law and Neuroscience" (2008) 60 Neuron 412 at 413; Jennifer Kulynych "Psychiatric Neuroimaging Evidence: A High-Tech Crystal Ball?" (1997) 49 Stan L Rev 1249 at 1251. 2 Auckland University Law Review Vol 17 (2011) for every stage of the criminal process from law-making, sentencing policy and pre-trial and trial-stage lie detection, to psychiatric testimony and testing for recidivist intent at sentencing and parole. Despite this ambitious potential, there are serious theoretical concerns regarding the nexus between the law and science; practical questions about the scientific validity of the neural technology;' and legal and ethical issues concerning the appropriate application of neuroscience in evidentiary procedures, as well as a potential "net-widening", as neurolaw proponents venture into pre-emptive deterrence.9 Commentators propose vastly different applications for this technology, based on disparate interpretations of both law and science. The "radical school""o advocates an extensive remodelling of the law, especially criminal law, along neuroscientific principles. In contrast, the sceptical "moderate school" criticises these "radical" proposals for misunderstanding both premature science and legal philosophy. Whereas the radical school accepts a hard determinist view of humanity, the moderate school is either libertarian or compatibilist, or considers that determinism is irrelevant to existing legal structures." These philosophical positions revive an ancient determinism/free will conundrum, although it is unclear whether neuroscience influences this debate directly. 2 This article analyses neuroscience's potential contribution to the law of evidence. 3 First, it describes the theoretical potential of neuroscience within the law. Attention turns secondly to the technology behind neuroscience. Thirdly, the article examines the admissibility of this technology in overseas courts. Finally, it analyses the legal framework for neuroscience's potential evidential contribution in New Zealand, especially the potential admissibility of neuroscientific techniques under the Evidence Act 2006. Overall, the article suggests that, despite some international precedent, the science has not reached an adequate threshold of relevance or reliability so as to be admissible in New Zealand courts. II THEORETICAL POTENTIAL OF NEUROSCIENCE WITHIN THE LAW There is a substantial body of scientific literature on the neurological bases 8 Henry Greely "Law and the Revolution in Neuroscience: an Early Look at the Field" (2009) 42 Akron L Rev 687 at 688 ["Law and the Revolution"]. 9 Stephen O'Hanlon "Towards a More Reasonable Approach to Free Will in Criminal Law" (2009)7 Cardozo Pub L Poly & Ethics J 395 at 421-422. 10 "Radical" and "moderate" are the author's terms. II "Libertarian" is not to be confused with the political term. Libertarians and hard determinists see free will and determinism as inconsistent. Libertarians believe in free will; hard determinists do not. Compatibilists believe free will and determinism are "perfectly compatible". See Greene and Cohen. above n 1, at 1776. 12 Gazzaniga, above n 7, at 412: Greene and Cohen. above n 1. 13 It may be possible for neuroscience to have broader applications, particularly in medical law and sentencing. The Potential Contributionof Neuroscience 3 of violence, offering endless possibilities as to how such neuroscience might interact with the law.14 Familiar legal applications of neuroscience include ascertaining capacity to stand trial, establishing mens rea and supporting an insanity defence." Discussion of these applications has provoked extreme responses, "rang[ing] from apocalyptic to 'business as usual"'" This section briefly analyses the reasoning behind these reactions. "Apocalyptic": the Radical School The radical school essentially contends that a scientific understanding of neurology necessitates acceptance of external causation, or determinism. Specifically, it seeks to prove that "firings of neurons in the brain" control all human actions." Thus, once the mechanisms behind these firings are understood, it may be possible to predict thought and behaviour and fully understand, or even control, the "human condition".'" The legal implementation of such suggestions requires shifts in the "standard conceptions" of "free will, personhood, and action".1 These shifts constitute the revolutionary nature of this group.2 0 Commentators within this school portend the legal implications of such scientific understandings of brain function,2' forecasting "major changes" in investigation, trial and sentencing procedures:22 for instance, using lie detection, "mind-reading", evidence of bias, and neural "causes" of criminal behaviour to prove facts,23 and even acting "directly to change a criminal's brain".24 Neuroscience may eventually demonstrate that "free will ... is an illusion"25 and that personal responsibility is therefore an artefact of "obsolete philosophical speculation".2 6 Scholars of the radical school envisage "a world of criminal justice in which there is no blame [but] only prior causes",27 arguing that this undermines existing legal 14 Pustilnik, above n 4, at 205. 15 Neal Feigenson "Brain imaging and courtroom evidence: on the admissibility and persuasiveness of fMRI" (2006) 2 Int JLC 233 at 234-235. 16 Henry Greely "Neuroscience and Criminal Justice: Not Responsibility but Treatment" (2008) 56 U Kan L Rev 1103 at 1103 ["Not Responsibility but Treatment"]. 17 Ibid, at 1134. 18 Gazzaniga, above n 7, at412. 19 Morse "The Disappearing Person", above n 2, at 2545. 20 Ibid. 21 Jessica Gurley and David Marcus "The Effects of Neuroimaging and Brain Injury on Insanity Defenses" (2008) 26 Behav Sci & L 85 at 86; Gazzaniga, above n 7, at 414. 22 Greely "Not Responsibility but Treatment", above n 16, at I104. 23 Ibid. 24 Ibid, at 1134. 25 Greene and Cohen, above n 1, at 1776. See also Nicole Vincent "On the Relevance of Neuroscience to Criminal Responsibility" (2010) 4 Crim Law and Philos 77 at 77-78. 26 Bruce Arrigo "Punishment, Freedom, and the Culture ofControl: The Case of Brain imaging and the Law"(2007) 33 AJLM 457 at 463. See also Morse "The Disappearing Person", above n 2,at 2545, where Morse contends that "[i]f we do not have free will ... then traditional concepts ofresponsibility and desert are apparently impossible". 27 Vincent, above n 25, at 77, quoting Robert Sapolsky "The frontal cortex and the criminal justice system" (2004) 359 Phil Trans R Soc Lond B 1787 at 1794. 4