Neurolaw is the interdisciplinary study of links between the brain and law, considering the recent advancements in neuroscience (Dash et al., 2020). These developments aid to achieve a better understanding of human behaviour for the law to attain a more accurate regulation and assessment of such behaviour (Petoft, 2015). It must be noted, however, that the use of neuroscientific evidence in litigation generally requires neuroscientists themselves to act as expert witnesses to provide interpretations and contextualisation of the scientific data presented, as this skill set and knowledge is lacked by the average jury or judge (Jones et al., 2013).
There are various ways in which neuroscientific data can be used in legal proceedings, in both civil and criminal cases, such as determining the responsibility of criminal acts, upon deciding whether an individual possesses sufficient mental capacity and establishing permanent brain abnormalities (Jones et al., 2020). This article will assess in more detail some specific examples of the use of neuroscience in similar cases.
Within the context of criminal law, neuroscientific evidence relating to brain abnormalities may be presented at the sentencing stage of a trial with the hope of achieving a mitigated punishment (Jones et al., 2020). For an individual to be found criminally responsible, the relevant actus reus (voluntary action and free will) and mens rea (state of mind) of the crime must be fulfilled; neuroscience can help prove that one, or both, of these conditions, has not been fulfilled, meaning that the individual may, in fact, not be criminally responsible.
The lack of voluntary conduct can be exemplified by the landmark Kenneth Parks case, also known as the sleepwalking case. The defendant, Kenneth, drove to his in-law's house, brutally murdered his mother-in-law, and almost killed his father-in-law. During investigations, the defendant claimed that he had no recollection of the incident and was completely unaware of what he was doing. This led to neurologists and sleep specialists conducting an E.E.G. test, which records brain activity on Kenneth's brain. This test revealed highly inconsistent results, which could not have been falsified, from which it was concluded that the defendant's conduct while asleep upon the commission of the crime was not, in fact, voluntary, leading to his acquittal.
However, some medical advisors believe that the defendant in the latter case should have instead been acquitted because of the insanity defence, which neuroscience can also influence. Here, the individual's mental capacity in question is assessed as to whether they are deemed to possess an 'unsound mind' and are, thus, incapable of conforming their conduct to the rules set by the law (Jones et al., 2020).
The involvement of neuroscience is also highly present in civil proceedings. For example, in the context of state benefits, brain scans and tests can be used, if required, to prove that an individual fulfils the conditions necessary to receive disability benefits (Jones et al., 2020).
Neuroscientific research can also give a new perspective on various ethical issues, such as the continuation or termination of life-support for individuals in a vegetative state within the sphere of health law (de Kogel et al., 2014). The Dutch case of Stinissen exemplified that vegetative coma patients may still, in fact, be conscious after fMRI brain scans were used to pick up the presence of brain activity.
In addition to this, further studies on the brain have led to the legal facilitation of gender reassignment. For example, it has been determined that feelings related to gender depend on the structure and functioning of specific brain areas rather than one's external characteristics. Findings such as these have brought about new legal definitions and opinions concerning sex and gender, which has implications for transsexuals in family and inheritance law (de Kogel et al., 2014).
Studies such as the latter have led to multiple landmark human rights cases, such as the ECHR Christine Goodwin v U.K. case, which involved the refusal to amend one's birth certificate after a gender reassignment procedure. The Strasbourg Court held that this violated the Convention, which led to the U.K. passing the Gender Recognition Act in 2004, establishing the basis for legal recognition of gender identity of post-operation transexuals and individuals experiencing gender dysmorphia (de Kogel et al., 2014).
As can be seen from above, the role of neuroscience in legal proceedings in many areas of law is gaining importance in helping to answer and offering another perspective about fundamental legal issues. Moreover, this role is assumed to increase in the future upon further technological developments in the sector, revealing unprecedented information about the brain and its relationship with legal phenomena (Jones et al., 2020)
References
Christine Goodwin v United Kingdom [2002] ECtHR 588
Court of Appeal Arnhem (Hof Arnhem) [1989] 31 October, LJN AD0933
Dash, S. S., Padhi, H. C. & Das, D., 2020. Neurolaw: A New Horizone Of Neuroscience And Law. European Journal of Molecular & Clinical Medicine, 7(10), pp. 91-98.
de Kogel, C. H., Schrama, W. M. & Smit, M., 2014. Civil Law and Neuroscience. Psychiatry, Psychology and Law, 21(2), pp. 272-285.
Jones, O. D., Faigman, D. L., Wagner, A. D. & Raichle, M., 2013. Neuroscientists in Court. Nature Reviews Neuroscience, 14(10), pp. 1-7.
Jones, O. D., Schall, J. D. & Shen, F. X., 2020. Law and Neuroscience. 2nd ed. s.l.:Forthcoming.
Petoft, A., 2015. Neurolaw: A brief introduction. Iranian Journal of Neurology, 14(1), pp. 53-58.
R. v. Parks, [1992] 2 S.C.R. 871
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