[LUM#1] Justice: the brain in the balance?
Thirty years after DNA entered the courtroom, could the brain be the new frontier of criminal evidence? While "neurolaw" promises great potential, its emergence currently raises more questions than it answers.
In 2008, a court in the Indian state of Maharashtra made headlines by becoming the first to admit evidence from a neuroscientific examination as incriminating evidence in a criminal trial. Accused of being responsible for the death of her boyfriend—who was poisoned with cyanide—a young woman was found guilty on the basis of a brain fingerprinting test, an examination performed using an electroencephalogram. Betrayed by her brain, Aditi Sharma was sentenced to life in prison. A few months later, the young woman regained her freedom after the Indian Institute of Neurosciences raised concerns about the use of this controversial method.
"Detecting lies through brain imaging poses a number of problems, particularly that of interpretation," says Marie Christine Sordino, professor of criminal law at the Montpellier Law School, who has been interested in the emergence of "neurolaw" for several years. "In the case of this young Indian woman, her reaction to the word 'cyanide' could have had multiple causes, such as the emotion provoked by the trial, the death of her boyfriend, or something she had read on the internet... Furthermore, not all neurologists agree on how to interpret the data. For all these reasons, there are serious doubts about the admissibility of the evidence," she explains .
The Indian case and its unexpected outcome illustrate the scale of the questions and doubts surrounding the arrival of neuroscience in the judicial sphere. With the bioethics law of July 2011, France took a tentative stance on the subject and opened the door to the use of neuroscientific evidence, without specifying in which cases and for what purposes. To date, it is the only country to have legislated on the issue.
Free will and determinism(s)
Others did not wait for a legal framework to be established before rushing into the breach. The number of cases in which neuroscience has been used has tripled worldwide between 2005 and 2011, with neuroscientific evidence proving most successful in the United States. Brain imaging is increasingly accepted as a mitigating factor, with lawyers no longer hesitating to explain their clients' behavior by a brain dysfunction: abnormal size of the frontal lobes or amygdala, damage affecting the area responsible for regulating aggression or judgment, etc. The result is that they avoid decades of prison time.
Far from being limited to detecting lies, neuroscience is opening up new perspectives on how to understand criminal behavior. It is also reigniting the debate on the supposed biological origins of criminal behavior, a long-standing obsession for a whole school of thought in criminal science. "In the 19th century, the Italian Lombroso explained that there were physical profiles of criminals: murderers would have bushy eyebrows, thieves would have long hands, and so on. This quest continued with genetics and the search for a 'crime gene'. We are now trying to find answers within the brain itself," summarizes Marie-Christine Sordino.
These answers are enough to send a chill down your spine. By suggesting that individuals face fundamental neurobiological inequality, neuroscience threatens to shatter the concept of criminal responsibility, which is currently at the heart of the judicial system. "We know that free will is constrained by environmental and social determinism..." And therefore neural determinism ? The criminal lawyer admits her perplexity in the face of questions that interest both lawyers and philosophers. For the implications are vast, even abysmal.
Scientific temptation
It is indeed the very existence of free will that is being called into question. "If we are completely determined, the concepts of individual responsibility and moral judgment lose all meaning. We would then have to rethink everything, including the philosophy of the Enlightenment and the vision of a rational individual," confirms Marie-Christine Sordino. "The risk is the scientistic temptation of a justice system that would like to explain everything through the brain, or even predict certain behaviors," warns Ms. Sordino.
However, many unknowns remain. In particular, the question of causality: "At what threshold of brain abnormality can we consider a person to be dangerous, to be likely to commit a crime? Can this threshold even be defined?" asks the lawyer. "The current state of knowledge does not allow us to answer these questions. We must be all the more cautious," she warns , " given that experts carry a lot of weight today. The use of brain imaging scans would obviously have a major influence on jurors." But faced with ever-increasing demands for transparency and scientific objectivity, the justice system can no longer afford to ignore techniques that could one day—perhaps not so far in the future—revolutionize everyday life in courtrooms.
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