Abstract
Neuroscience produces an inconceivable amount of data on brain correlates of mental functioning. Mental functioning is a concern of many different disciplines, including criminal law.
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Notes
- 1.
Pardo and Patterson (2013, p. ix).
- 2.
See, e.g., Pardo and Patterson (2013), Vincent (2013c).
- 3.
Packer (2009, pp. 76–77, Packer abbreviates criminal responsibility as CR). The situation is, in fact, a bit more problematic than Packer suggests, because some believe that neuroscience has shown the futility of responsibility evaluations, since no one is, allegedly, responsible; see the earlier chapter on free will.
- 4.
This section is in part based on Meynen (2014b), see also Meynen (2016) and Meynen (in press).
- 5.
See Meynen (2014b, 2016). For various ways in which neuroscience may support the law, see Jones (2013).
- 6.
Since insanity concerns an assessment of the defendant, intervention is not immediately relevant. However, it is possible that, in the future, a neuroscientific intervention will be performed to enable a better assessment to be made.
- 7.
If the two can be separated.
- 8.
Gazzaniga (1998, 2005). Note that this would undermine “acting for reasons,” which is one of the senses of free will discussed in Chap. 4. We would then no longer act for reasons, but would instead confabulate reasons afterwards.
- 9.
Greene and Cohen (2004, p. 1783).
- 10.
See on such applications, e.g., Buckholtz and Faigman (2014), Greely (2013).
- 11.
Kittay (2006, p. 1364).
- 12.
See also Vincent (2013a, p. 326). She distinguishes between denying, assessing, restoring, and enhancing responsibility.
- 13.
See Bublitz and Merkel (2013), Gasson and Koops (2013).
- 14.
This section is based on Meynen (2014a, 2015a).
- 15.
See Berrios and Marková (2002) on the definition(s) of the term neuropsychiatry.
- 16.
Originally, five was written in Latin, later in Arabic.
- 17.
Urbaniok et al. (2012, p. 179, reference omitted). Kupfer and Regier (2011, p. 672) state: “… we anticipated that these emerging diagnostic and treatment advances would impact the diagnosis and classification of mental disorders faster than what has actually occurred.”
- 18.
References omitted.
- 19.
This section is partially based on Meynen (2013a).
- 20.
Best et al. (2002, p. 8448; quote from abstract of the article).
- 21.
See also Lee (2013, references omitted) who writes that studies “…consistently showed that patients with schizophrenia might be impaired in flexibly switching their choices based on negative feedback and incrementally adjusting their choices according to positive feedback across multiple trials. Consistent with these behavioral results, activity related to reward prediction error in the frontal cortex and striatum is attenuated.”
- 22.
See Szmukler and Rose (2013, p. 135), “people with a psychosis, in the absence of substance abuse or antisocial personality, are not much more likely to be violent than the general population.” On risk factors for violence in psychosis, see also (Witt et al. 2013). Increased risk of violence has been reported in cases of severe mental illness by, e.g., Van Dorn et al. (2012).
- 23.
This section is partially based on Meynen (2013a).
- 24.
Clearly, these techniques may also lead to new, general knowledge about the relationship between psychopathology and decision-making, which can be used in the assessments.
- 25.
The outcome of neuro-assessments could also support making predictions about decisional deficits influencing future behavior, which may be valuable for risk assessment. There are qualms regarding neuroscience-based risk prediction, particularly with respect to reliability, defendants’ privacy, and the possibility of forcing a defendant “to be a witness against himself” (Nadelhoffer et al. 2012). However, Nadelhoffer et al. (2012, p. 95) “found no novel legal or moral issues that were raised by neuroprediction that were either not already raised by other forms of violence prediction or that would not be easily remedied.”
- 26.
See also Silva (2007) on this matter.
- 27.
In part in response to Morse. See also Meynen (2014b).
- 28.
See Sect. 5.1 on this term “objective marker,” cited by Morse as a reason to include mental defect/disorder as a criterion in an insanity standard.
- 29.
Nicholson et al. (2008). See also Sect. 5.1, emphasis added.
- 30.
See Sect. 2.3 for concerns about the control prong.
- 31.
Penney (2012, p. 101), all references but one omitted. Regarding the reference to Sapolsky, it is of interest that Wallace (1994, p. 170) notes: “Much of the controversy about this question turns on the issue of whether irresistible impulses really are among the symptoms of mental illness; whether, that is, people in the grip of insanity or mental illness are plausibly regarded as acting from irresistible impulses.” He adds: “Even if we are skeptical about the claim that irresistible impulses are genuine symptoms of insanity or mental illness, however, I think we can agree that susceptibility to such impulses would often be an exempting condition.”
- 32.
See, e.g., Norway, where psychosis is used in Section 44 of the General Civil Penal Code, apparently referring to the psychiatric notion (Melle 2013).
- 33.
For insightful discussions, see Greely (2013), Greely and Illes (2007), Pardo and Patterson (2013). It is not my intention in this section to advocate for brain-based lie detection in insanity evaluations, but to explore the possibility of using such a technique.
- 34.
The considerations in this section are partly based on Meynen (2014a). The risk of lying may even be increased because of a defendant’s mental condition; one of the DSM-5 criteria for anti-social personality disorder is “deceitfulness, as indicated by repeated lying, use of aliases, or conning others for personal profit or pleasure.”
- 35.
On subjective experiences and mental disorder, see also Sect. 5.1.
- 36.
For comparison, lie detection would probably be less valuable, e.g., during a cardiological evaluation, even in a setting in which the risk of lying is increased. The reason is that the cardiologist can also use, inter alia, the results of an ECG, blood tests, and ultrasound examinations to make the eventual diagnosis. See also Linden (2012) on faking and brain-based lie detection in psychiatry.
- 37.
See, e.g., De Kogel et al. (2013).
- 38.
See also Poldrack (2006), who analyzes the problems encountered when an inference is made from fMRI data on brain regions to cognitive states (“reverse inference”). He concludes: “There is substantial excitement about the ability of functional neuroimaging to help researchers to discover the organization of cognitive functions. The analysis presented here suggests that caution should be exercised in the use of reverse inference, particularly in cases where the prior belief in the engagement of a cognitive process and selectivity of activation in the region of interest are low.”
- 39.
Finally, scientific tools and techniques currently used in forensic psychiatric evaluations, are not 100 % accurate. Risk of recidivism assessment tools are an example. They have some predictive value, but it is definitely limited; Buchanan (2013), Szmukler et al. (2012), Szmukler and Rose (2013). Notably, even as controversial a method as Rorschach tests may sometimes be used in forensic assessments of defendants (Board of Trustees of the Society for Personality Assessment (2005): The Status of the Rorschach in Clinical and Forensic Practice).
- 40.
See also Silva (2009) on complexities regarding the use of fMRI in forensic psychiatry.
- 41.
See also Silva (2007, 2009).
- 42.
Cited also by Claydon (2011).
- 43.
In legal practice, depending on the jurisdiction, the threshold may be defined by the legal test for admissibility of scientific evidence, such as Daubert or Frye.
- 44.
See also Meynen (2014a, 2015a).
- 45.
Burns and Swerdlow (2003, p. 437). See also Claydon (2012), who discusses this case from the perspective of English law.
- 46.
The Mini-Mental State Examination is a widely used instrument for screening cognitive dysfunction (Tombaugh and McIntyre 1992).
- 47.
See James Woodward (2003) for an influential interventionist account of causation.
- 48.
For the M’Naghten standard, see Chap. 2.
- 49.
See also an article in New Scientist, by Charles Choi (2002), entitled “Brain tumour causes uncontrollable paedophilia,” in which Jeffrey Burns is cited as stating: “He wasn’t faking.”
- 50.
Burns also emphasizes the unique temporal aspects of the case (Choi 2002): “But if someone argues that every paedophile needs a MRI, the difference in this case was that the patient had a normal history before he acquired the problem. Most paedophiles develop problems early on in life.”
- 51.
Roper v. Simmons, 125 S. Ct. 1183 (2005). This section is partly based on Meynen (2015a).
- 52.
- 53.
Morse (2011a, p. 540); see also Introduction to Morse and Roskies (2013).
- 54.
See also Steinberg (2013).
- 55.
Feld et al. (2013, p. 184) refer to Maroney (2009).
- 56.
On the topic of this section, see also Meynen (2014b).
- 57.
See Sect. 5.1, and Meynen and Oei (2011).
- 58.
See Sect. 6.4.
- 59.
Morse supplements this argument, meanwhile, with some more general and philosophical considerations about determinism and responsibility (Morse 2007).
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Meynen, G. (2016). Neurolaw: Challenges and Opportunities. In: Legal Insanity: Explorations in Psychiatry, Law, and Ethics. International Library of Ethics, Law, and the New Medicine, vol 71. Springer, Cham. https://doi.org/10.1007/978-3-319-44721-6_6
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