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Challenges of the Application of Emerging Neuroscience Technologies in Courts

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  • - Depertment of Neurosciences, Zanjan University of Medical Sciences, Zanjan, Iran

  • - Department of Law, Sciences and Researches Branches of Azad University, Tehran, Iran
  • Corresponding author Department of International Law, Najafabad Branch of Islamic Azad University, Isfahan, Iran, Tel: +98 9196255575, 9196255575; E-mail: ehsan_zaban@yahoo.com, ehsan.lame@gmail.com

Abstract:

Significant advances in neuroscience have improved the ability of physicians to diagnose and manage neurological and psychiatric disorders in patients. The use of neuroscience evidence in criminal trials in developed countries has increased significantly in the last two decades. This rapid increase has raised questions among the legal and scientific communities about the effects that these technologies can have on judicial decision-makers. The role of neuroscience in criminal liability is a topic that has been discussed in recent years. The purpose of this article is to review the use of neuroscience evidence in the criminal justice system, as well as current research examining the effects of neuroscience evidence on judicial decision-makers in criminal cases. This review is warranted given legal and scientific concerns about the impact of potential bias. The present study was conducted and analyzed using a documentary method and with reference to research published in the last four years. Some argue that neuroscience is irrelevant in the criminal court, while others believe that it can help prove the lack of control of behavior by many criminals. However, the truth is likely somewhere in between, as certain types of neuroscience evidence may be useful and relevant in criminal trials. This article describes recent advances in neuroscience in the fields of functional neuroimaging and artificial intelligence "deep learning" algorithms, and examines the legal and ethical challenges and potential benefits and drawbacks


 

 

Introduction :

It is often said that the brain is the most complex organ in the universe 1. The capabilities of brain imaging with Artificial Intelligence (AI) are already impressive. For example, this technique can non-invasively image changes in local blood flow in the brain, the letters of the alphabet in front of a person’s eyes, and can even make very good guesses about important features of static images that a person is viewing. Beyond that, some laboratories have used these techniques to reconstruct primitive video images that a subject is watching. There is no doubt that all of this is just the beginning of brain imaging and the contribution of AI 2. A serious question is whether findings based on behavior and brain activity in a scanner are valid in real-world situations. Can a subject’s performance in a lab with a scan be a criterion for legal assessment as evidence? Can a criminal’s ability to control his impulses really affect his ability to resist criminal offenses? The science of law is about human mental states and actions, not brain states. Thus, what is the connection between neuroscience evidence and decision-making about human behavior?

The last decade has seen an increase in scholars’ interest in understanding antisocial, aggressive, and criminal behavior. In this context, there has been a nascent growth in cognitive neuroscience research, which has provided a specific understanding of the etiology of criminal behavior in the last decade, especially at the intersection of law and criminal justice 3. These advances have led to the assessment of crime, guilt, and punishment through techniques such as Electroencephalography (EEG) and functional Magnetic Resonance Imaging (fMRI) scans, which has naturally led lawyers to collect neuroscience methods and data as evidence in court. That is, brain activity is measured in the face of a specific stimulus, and this evidence is used by defendants to reduce sentences and liability 4. So, by using various technologies, including fMRI, we can look at the living brain and see which parts of it are most active. The increasing use of neuroscience evidence in criminal trials has led some to wonder what effects such evidence might have on judicial decision-makers (e.g., juries and judges) who may be unfamiliar with neuroscience 5. There are concerns that judicial decision-makers may be influenced by testimony and images of the defendant's brain. Our findings suggest that neuroscience evidence has mitigating effects on judicial decision-making, and the rationale for using neuroscience and neuropsychology in the courts is that a scientific understanding of the neural correlates of antisocial behavior will help to clarify who should be held accountable for their actions, and this will help to inform judicial decision-making. The use of neuroscience technology in court and in legal policy, however, raises two main concerns: one about the reliability and readiness of this technology to be used as evidence, and the other about the normative, ethical, and political concerns that we may have about its use 6.

In various ways the neuroscience technology is employed in criminal justice: First, whether a suspect possesses "offender knowledge" or guilty knowledge is a crucial question in the early phases of criminal proceedings (fact-finding), following the identification of the suspect. Investigating secondary sources (such the suspect's cell phone) may help draw this conclusion indirectly, but interrogative questioning is currently the only way to obtain first-hand knowledge. However, biased remarks can be introduced by interrogative inquiry, and defendants' assertions are frequently untrustworthy. Second, the likelihood of reoffending is frequently taken into consideration when deciding on a verdict for a defendant who has been proven guilty of a crime. An offender's eligibility for parole is based on their likelihood of reoffending. However, present risk assessment techniques display only poor to middling performance. Third, drugs and psychotherapy are utilized in forensic settings to manage mental health issues that can lead to aggressive conduct. However, because the likelihood of reoffending cannot be adequately decreased by the remedies currently available, people may continue to be incarcerated. These interventions are also not always effective and may have serious negative effects. Therefore, neurotechnological therapies, also known as neuro-interventions, may have wider rehabilitative uses or help lower the likelihood of reoffending 7.

 

Materials and Methods :

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Conclusion :

Advances in cognitive neuroscience effectively guarantee a future in which the law increasingly engages with neuroscience evidence. Even at this relatively early stage, there is a gradual but discernible shift from an almost exclusive reliance on structural brain evidence (in cases involving any brain evidence) to an increasing reliance on functional neuroimaging. As this shift expands and accelerates, there will be differing views on whether and when to use different types of neuroimaging data to inform legal decisions.

Scientific methods and social norms are constantly changing. And it is possible that such perspectives, discourses, guidelines, and international laws will need to be explored and interacted with it and as brain science advances, and proposed for use in legal processes. Perhaps then the integrated approach should not only include a scientific and ethical effort, but also a focal orientation toward defined applications in the courts in order to "explicitly direct and align the capabilities of brain science with the purposes and limitations of the law". For while justice may be blind, it must be vigilant, to ensure that new technology does not circumvent the provisions of the law, and that the law does not misinterpret the capabilities and/or limitations of technology.

Thus, the usefulness of neuroscience in criminal trials or sentencing under current law is limited and likely to be significant only in cases of cognitive or volitional impairment. Even in capital cases, the usefulness of neuroscience may be uncertain, although defense attorneys may still use such data as evidence. There are several controversial discourses among neuroscientists (mainly related to mind reading) that remain unresolved. On the other hand, inspired by such controversial discourses, some legal norms are significantly exposed to argumentative interpretations in addition to moral constraints. Then, theoretical constraints can be divided into discursive and normative questions.

 

Conflict of Interest :

Authors declare no conflict of interest.

Funding: This study has no funding support.

 


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