Monday, January 17, 2011

Neuroscience and the Law

The more we learn about the brain, the more it is impacting our conceptions of morality and free will - both of which impact how we determine guilt in a legal sense. Here are two recent posts from around the internets on just this topic.

Susan A. Bandes
DePaul University - College of Law; University of Miami - School of Law

Ohio State Journal of Criminal Law, Vol. 8, No. 1, 2010

This short essay is the conclusion to a symposium entitled Neuroscience, Cognitive Psychology and the Criminal Justice System. The symposium, based on papers presented at an AALS Criminal Justice Section panel at the 2010 Annual Meeting, contains an introduction by its guest editor Deborah Denno, and articles by Alafair Burke, John Darley, and Andrew Taslitz.
Here is a brief section of the paper:
Most prominently, neuroscience has weighed in on the nature of the basic requirements for criminal responsibility, including free will, voluntariness, mens rea, and mental competency. On a more practical note, neuroscientific evidence has been invoked to help predict criminality, assess competence to stand trial or to waive essential rights, determine state of mind and voluntariness, measure maturity and capacity, diagnose psychopathy or legal insanity, and identify bias.

Sophisticated brain imaging techniques like functional magnetic resonance imaging (fMRI) raise another set of questions at the heart of law: questions about the legal system‘s ability to determine the truth—particularly about elusive questions of state of mind, memory, knowledge, and bias. Proponents of neuroimaging techniques such as ―brain fingerprinting claim that the brain can be plumbed for evidence of events the subject has witnessed, deeds the subject has committed, and lies the subject has told. This set of questions gives rise to a subsidiary set: What is it about certain types of evidence that juries and other factfinders find particularly persuasive?

The neuroscience explosion highlights the importance of interdisciplinary approaches to the study of criminal law, encouraging criminal law scholarship‘s move away from insularity. The articles in this volume illustrate the range of knowledge implicated in studying the cognitive aspects of criminal law.
Over at the Institute for Ethics and Emerging Technology site, they posted a lecture
by IEET Fellow David Eagleman on The Brain and the Law.
In this fascinating lecture, IEET Fellow David Eagleman considers some emerging questions relating to law and neuroscience, challenging long-held assumptions in criminality and punishment and predicting a radical new future for the legal system.

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