[LUM#1] Justice: Is the Brain at Stake?
Thirty years after DNA evidence first appeared in court, is the brain 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 assessment 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 based on a brainwave pattern, an examination conducted using an electroencephalogram. Betrayed by her own brain, Aditi Sharma was sentenced to life in prison. A few months later, the young woman regains her freedom after the Indian Institute of Neurosciences takes issue with the use of a method that is controversial, to say the least.
“Detecting lies through brain imaging poses a number of problems, particularly the issue of interpretation,” says Marie Christine Sordino, a professor of criminal law at the Montpellier Law School, who has been studying the emergence of “neurolaw” for several years. “In the case of this young Indian woman, the reaction to the word ‘cyanide’ could have had multiple causes—it could have been linked to the emotion triggered by the trial, the death of her boyfriend, or something she had read online… 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 scope of the questions and doubts surrounding the emergence of neuroscience in the legal sphere. With the passage of the Bioethics Law in July 2011, France took a tentative stance on the subject and opened the door slightly to the use of neuroscientific evidence, without, however, specifying in which cases and for what purposes. To date, it is the only country to have legislated on the matter.
Free Will and Determinism(s)
Others did not wait for a legal framework to be established before jumping at the chance. The use of neuroscience in court cases is said to have tripled worldwide between 2005 and 2011, and it is in the United States that neuroscientific evidence has seen the greatest success. Brain imaging is increasingly accepted there as a mitigating factor, with lawyers no longer hesitating to explain their clients’ behavior by citing brain dysfunction: abnormal size of the frontal lobes or amygdala, lesions affecting the area responsible for regulating aggression or judgment… With the result being that clients are spared decades in prison.
Far from being limited to lie detection, neuroscience is thus opening up entirely new perspectives on how to understand criminal behavior. And it is reigniting the debate over the supposed biological origins of criminal behavior—an old chestnut for an entire school of thought within criminal science. “In the 19th century, the Italian Lombroso explained that there were physical profiles of criminals: murderers, for instance, would have bushy eyebrows, thieves long hands… 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.
Answers that are enough to send a chill down your spine. By suggesting that individuals face a fundamental neurobiological inequality, neuroscience threatens to shatter the concept of criminal responsibility, which today lies at the heart of the judicial system. “We know that free will is constrained by environmental and social determinisms…” And therefore neural ones ? The criminal law expert admits her perplexity in the face of questions that interest both the jurist and the philosopher. For the implications are vast, even abysmal.
The Temptation of Scientism
It is, in fact, the very existence of free will that is being called into question. “If we are entirely determined, the concepts of individual responsibility or moral judgment lose all meaning. We would then have to rethink everything, including Enlightenment philosophy and the vision of a rational individual,” confirms Marie-Christine Sordino. “The risk is the scientistic temptation toward a form of justice that would seek to explain everything through the brain, or even predict certain behaviors,” warns Ms. Sordino.
However, many questions remain unanswered. The issue of causality, in particular: “At what threshold of brain abnormalities can we conclude that a person is dangerous, that they will commit a crime? Can such a threshold even be defined?” the legal expert asks . “The current state of knowledge does not allow us to resolve these questions. We must be all the more cautious,” she warns , “given that the expert’s influence is very significant today. “The use of brain imaging scans would clearly have a major influence on jurors.” But faced with an ever-increasing demand for transparency and scientific objectivity, the justice system seems unable to avoid reflecting on techniques that could one day—perhaps not so far in the future—revolutionize daily life in courtrooms.
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