Brain Bidden Bail

Published in Lab Times 02/12.

Can a brain scan clear or convict someone of a crime? In December, the Royal Society published a report to establish “where neuroscience might offer insights to the law”. Nicholas Mackintosh, experimental psychologist at the University of Cambridge, chaired the working group.

Despite some drawbacks and inaccuracies, brain scanning can offer valuable clues in predicting mental health and may come in handy in detecting a predisposition to criminal offence. Thus, data can be used to rehabilitate subjects or keep them in a non-provocative environment.

To the jurists, brain images could do their bit to prove or disprove the accused when the defence offers a psychological explanation to his/her wrong-doing. Brain data including fMRI images, PET scans and an EEG could tell whether the witness or the accused is truly in pain or is faking it. Conversely, “a lawyer might even call for brain scans of the jury for bias in terms of race, sex or nationality”, jokes Stanford law professor Hank Greely at a recent “Neuroscience and the Law” meeting in California.

Greely also points to the hope that neuroscience can offer to a subject who is criminal before law as a result of being victim to a serious mental health issue. He recollects the case of a high school teacher who turned pedophilic and was prosecuted. He was later diagnosed with a tumor in his left frontal lobe, the surgical removal of which left him completely normal and impulse-free.

Nicholas Mackintosh also sees positive aspects, especially when it comes to the risk assessment potential that neuroscience holds. He underscores the need for genetic susceptibility studies and identification of “violence genes” – for instance the gene encoding the enzyme monoamine oxidase implicated in mood disorders and depression – in gauging the probability of re-offense. “Though risk assessment is notoriously inaccurate, it is at least something worth thinking about”, he said in a ScienceInsider story.

Currently however one of the biggest challenges is the “big gap between research conducted by neuroscientists and the realities of the day to day work of the justice system”. Scientists and criminalists simply work in different surroundings, use different methodologies and languages. But if the report’s recommendations as to how the gap could be bridged are accepted, then one day “neuroscience will feed usefully into the law”.

Photo: Justice by Don Sutherland via Creative Commons License

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