Putting neuroscience on trial

How brain findings are being used to help convict, or acquit, individuals in the courts of law.
19 November 2014

Interview with 

Professors Lisa Claydon, Manchester University, Nita Farahany, Duke University, Jennifer Chandler, Ottawa University, Paul Catley, Open University, Katy deKogel, Dutch Ministry of Justice, Calvin Ho, National University of Singapore


Old Bailey Justice


How brain findings are being used to help convict, or acquit, individuals in the Old Bailey Justicecourts of law.

Next we'll examine neuroscience being used in the court room. We put the brain on trial by looking at international case studies with our panel of experts.

Nita - Nita Farahany from Duke University. So when we're talking about neuroscience in the court room in this context, we're talking about a criminal defendant making use of it to say my brain made me do it. The controversy in the criminal court room for adults is that the kind of neuroscientific evidence that's being used is a population level data, meaning the science tells us only us about differences across the population, not about why any particular person behaves the way that they did. And so when an adult criminal comes into the courtroom and says my brain made me do it and here's the brain scan that proves that that's true. It's problematic because the science support that kind of individualized assessment.

Hannah - So, for example, that would be a psychiatrist holy grail, wouldn't it? If someone could have a brain scan and then the psychiatrist would be able to say, "Oh yes, you have Schizophrenia," or "You have psychopathy," and then they can start treating immediately based on that brain scan result. The science just isn't there yet. You're finding something very different though in terms of the use of neuroscience in the youth criminal justice system in America.

Nita - Yeah. So, with juveniles who come into the court room, the kind of argument that they are making isn't so much about what their individual brain is that's different from the population. It's actually, their brain is just like every other juvenile but that every other juvenile has a category is different in kind than an adult and that's because the juvenile brain is still developing. The frontal lobe region of the brain which is essential for executive decision making, for planning, and pre-meditation, the kinds of myelination of neurons which are critical to kind of decreasing the noise in the brain and enabling us to make good judgments and good decisions. Those are still all in development in juveniles, and so when they come in they're not saying, "My brain. My abnormal brain made me do it. Instead, it's my juvenile brain made me do and you should treat juveniles as a class or as a category differently than you treat adults."

That kind of claim seems to actually be gaining a lot of traction in the US. It seems that judges and courts, and policy makers find that to be an appealing reason to try to be less harsh, less long-term in the way we treat juveniles and to try to have more compassionate decision making with respect to them understanding that their brains are likely get better over time. That they're likely to exercise better judgment over time.

Hannah - So it's not the case that young people who may commit crimes in their teens would then be incarcerated for a hundred years say with no chance of appeal? They would be able to say my brain wasn't in a certain state as they were a teenager which would fit with the neuroscientific data as we understand it now and then rehabilitation and processes might be able to be incurred.

You've have some really results in Canada in terms of the way the justice system looks at different individuals very differently based on the risk and the neuroscience data. Can you tell us a little bit about the cases now?

Jennifer - Certainly. Yes. Hello. I'm Jennifer Chandler, I'm an associate professor at the Faculty of Law University of Ottawa, Canada. I was comparing two cases involving 14-year old offenders in Canada. Both whom were able to claim that they had immature brains and so that should be taken into consideration, and indeed the Canadian law explicitly does that in the statute.

In addition, they had another cause of disability which was brain damage due to prenatal alcohol exposure and so what we saw was perhaps a willingness to take into consideration that their brain was immature and that they might get better, but that was constrained by the sense that they permanent serious brain damage due to foetal alcohol exposure and they would not get better.

So, it produced very different results in these two offenders, one of whose brain damage was more severe than the other and while we might have said, well he had more diminishment of his capacity and so is less morally blame-worthy, he ended up with a much longer sentence because of concern that he would be very difficult to rehabilitate.

Hannah - Isn't that the case that really anyone who commits a crime might have some kind of brain damage or some altered brain function which allows them to act in a way that isn't in keeping with our society and our legal system. So, in that case, couldn't you say that any criminal has diminished responsibility.

Lisa - Hi. I'm Lisa Claydon. I'm a senior lecturer in law at the Open University. You aren't in a criminal case going to look at that as an issue unless the defendant wants to raise it and clearly most of the time it wouldn't be to his advantage to raise it because we've already heard that actually saying, I could potentially be less in control of myself, might not be a good legal argument for a defendant to make. So, I think that the simple answer is that a defendant really has to have a reason to bring forward information that relates his brain state at the time of the crime and usually that reason will be that he hopes to make a plea which will diminish the charge or mitigate sentence.

Hannah - There's a case that in the UK at least, over 80% of youths that are convicted in the criminal system will go on to reoffend which indicates that the current rehabilitation system isn't successful. If, for example, there was a school or a hospital that was failing at over an 80% rate, then it would probably be shut down. So, is there any way that we can use neuroscience understanding to help improve the rehabilitation system for those people that are convicted?

Lisa - Yeah. There is quite some interesting research in the way neuroscience could be used to improve behavioural interventions. For instance, to predict for whom they work and for whom not, and behavioural interventions play a large role in the prison system. For instance, in the Netherlands, a lot of them have been bought in the 90s. For instance, aggression regulation therapy, and they work for about 10 to 50 percent of the offenders.

Hannah - And what does the aggression regulation therapy entail?

Lisa - It's a cognitive behavioural intervention. So, it teaches you different attitudes towards aggression and it aims at teaching you to control yourself better for instance, and that's all with the ultimate aim of reducing criminal behaviour.

Hannah - And in the States, I believe there's also some evidence that you can have a look at those children that have been exposed to quite violent traumatic events in their early life and then also pair that up with genetic data to then predict whether they might be likely to kind of repeat that circle of violence themselves in their own life, and go and commit vicious crimes.

Lisa - So, the same problem that we have with the adults system is the problem we have with any particular juvenile again. So, even if you are able to tell through genetic testing and environmental impulses, or environmental influences that an individual fits within a category that is more likely to be violent.

That doesn't tell us a particular youth is more likely to be violent, only that people generally with those types of early exposure are more likely to be violent.

And so, what I wouldn't want the evidence to be used for is to do brain scanning or genetic scanning of children and then label or stigmatize a child and say that this person is much more likely than some somebody who doesn't have this environmental influence, genetic influence, or neurological influence to be a violent offender as an adult.

What I would hope is that by looking at this information across the population, we have very good reason to intervene early across to decrease childhood violence, to try to make available treatments that address the kind of predispositions that we're seeing at group levels.

Hannah - So that they hopefully wouldn't then go on to commit a crime themselves. They would actually be rehabilitated or have some prevention treatment before they commit a crime.

Lisa - That's right. And again, it would be preventive treatment, right? Which is ways to prevent people from ending up in the prison system, in the criminal system, ending up as offenders. So it's trying to have early childhood intervention that increases the chances that all of our youth will have the best possibility of not ending up on a life and a path of crime.

Hannah - And Paul, you're findings of case studies in the UK.

Paul - Hi. I'm Paul Catley. I'm a senior lecturer in law at the Open University. We've been looking at a range of cases and what we found is that there's increasing numbers of cases that have been used both to argue that someone should not have convicted or alternatively, that the sentence is unjust and excessive.

One case which we found particularly interesting because of the extent of the neuroscientific evidence that was being brought in was a case where a 15-year old was assaulted. There was no dispute there that he'd been assaulted but the question was about the seriousness of the injuries that he sustained and the family were claiming that he'd suffered serious brain injury. Quite a number of years later, he and a lot of members of his family were charged with conspiracy to defraud. At that trial, one of the big issues was - was he malingering? Was he just pretending to be unable follow things? Or was there some real genuine medical problem? He  was convicted but when he appealed some time later, at that point there were later MRI scans which were able to support the argument that actually, yes, there was a degenerative brain disorder there which had probably been there at the time of trial. And so, supported his argument that he hadn't been fit to stand trial initially and led to his conviction being quashed.

Hannah - So that neuroscience data came eleven years after the initial case was brought to court and he'd already been sentenced and served three years in prison at that point.

Paul - Yes. So in that sense, you know, it's fairly unsatisfactory outcome. I guess, you know, from his viewpoint and his family's viewpoint, he is cleared, his conviction is quashed, he doesn't have the criminal record, but as you say, you know, it came very late. And this was the individual for whom prison was probably an awful experience. Someone with a severe brain disorder from an ethnic minority, coping in a prison situation when he'd also got failing eye sight. So, it must have been a very difficult three years for him.

Hannah - And findings from Singapore.

Calvin - Hello. My name is Calvin Ho. I'm from the Centre for Biomedical Ethics at the Yong Loo Lin School of Medicine - National University of Singapore. Yeah, I think neuroscience evidence has been very helpful in the way that courts have come to understand their role. So, for instance, in relation to a diagnosis of Kleptomania, courts are prepared to recognize that perhaps the accused is deserving less of a blame given the particular condition.

However, I think the court has also emphasized that the court may be somewhat lenient in terms of whether you are to be blamed for shoplifting is quite a different situation in keeping to a particular plan. So, the courts saw its role as ensuring that some of these young people who have been diagnosed with Kleptomania keep to particular treatment plan, rather than to punish them for a particular condition that I think it is prepared to recognize that these young people have no control over.

Hannah - And then last point really. Do you think that neuroscientists need to be trained, communicating their work to lawyers so that they can actually provide evidence in a court setting?

Lisa - Yes. I think that would be a very good thing. To make clear of which tests are ready for use and which aren't. That would be very important I think.

Jennifer - I would agree. I don't know whether Nita would agree with that.

Nita - Absolutely. One of the problems right now is the mismatch between neuroscientific understandings and legal understandings of some basic concepts like what does it mean to engage in a voluntary action, what is a mental state, and the miscommunication that occurs between the two right now is causing a lot of problems on both sides in terms of understanding and appropriate use of neuroscience in a legal setting. So, I think neuroscientists need to be better trained to communicate with public policy makers and legal decision makers, and legal decision makers need to be better trained to understand and appropriately incorporate neuroscience, and to not incorporate where it's inappropriate to do so.

Calvin - Yeah. I think that it's really important because it's interesting that courts in Singapore and Malaysia have asked Council to introduce neurological evidence, so I think there's receptivity there. And of course we should recognize that neuroscience is a very important decision making tool because they seem to attribute a certain level of objectivity.

Hannah - Thanks to Anita Farahany, Elisa Claydon, Jennifer Chandler, Paul Catley, Katy deKogel, and Calvin Ho. Well, unfortunately that's all we have for in this special series of Naked neuroscience. I'm Hannah Critchlow and I've been reporting from the International Neuroethics 2014 meeting hosted at the AAAS, so the American Association for the Advancement of Science at Washington DC. Thanks to all those who took part in the program, and to the Wellcome Trust for their generous support. In the next episode, I'll be reporting from Calcutta where I'll be meeting the president of India who is opening a brand-new neuroscience hospital and research facility there. So, hopefully see you next month to open our minds.


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