Neuroscience and Criminal Law Essay

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Neuroscience is the study of the nervous system— a sophisticated input/output device composed of the brain and spinal cord. It is responsible for receiving, interpreting, and responding to stimuli by transmitting electrical and chemical impulses throughout an organism. Often, response to stimuli manifests itself in the perceptible world of human existence. This is generally referred to as behavior. Henceforth, human behavior is the action or reaction in response to external or internal stimuli.

The rapid development of neuroscience technology profoundly impacts innovative behavior research and analysis. Modern brain imaging techniques facilitate cognitive and psychophysiological insight into components that previously existed only in theory. For example, functional magnetic resonance imaging (fMRI) enables researchers to hypothesize, observe, and infer plausible explanations for antisocial behavior and dishonesty. As recently as 2010, two cases, United States v. Semrau and Wilson v. Corestaff Services, LP, offered fMRI-based lie-detection evidence; yet, in both cases it was rejected due to lack of scientific community acceptance related to inconsistent reliability measurements.

University of Wisconsin psychology Professor Terrie E. Moffitt’s developmental theory suggests life-course-persistent antisocial behavior is the product of children’s neuropsychological problems interacting cumulatively with their criminogenic environments across development, culminating in a pathological personality commonly referred to as psychopathy or sociopathy. Moffitt’s research on prisoners’ brain images illustrates a link between psychopathy diagnosis and reduced prefrontal cortex and amygdala activity. The prefrontal cortex and amygdala remain generally associated with empathy, guilt, fear, and anxiety. Further, Adrian Raine, a neurocriminology pioneer, continues to investigate brain-behavior relationships, specifically amygdala activity and fear, and prefrontal cortex size, reasoning, and behavioral traits. Novel evidence supporting behavioral predisposition, or deterministic philosophy, compels lawyers, criminologists, and various criminal justice practitioners to further investigate neuroscience’s effect on justice system dynamics, for what the criminal justice system does with this new information is of great ethical importance for society and humanity, in general. Moreover, ethical, legal, and social implications arise from neuroscience health, social, and legal policy application.

Historical Background of Neuroscience

Neuroscience originated in ancient Egypt and Greece. An Egyptian surgeon recorded the first account of the brain on a piece of papyrus around 1700 B.C.E. Although this contribution may seem archaic and insubstantial at first glance, it is truly and indeed paramount, as it became a catalyst for 4,000 years of exploration, culminating with 21st-century creativity and practicality. Ancient philosophers such as Plato and Aristotle, Thomas Hobbes and René Descartes during the Age of Reason, and 21st-century intellectuals such as David Chalmers, Michael Graziano, and Sabine Kasnter studied mind-brain duality, localistic and holistic brain functioning perspectives, and the soul. The soul’s existence is a philosophically debated topic.

For example, modern science fails to demonstrate evidentiary validity, whereas spiritualists contend that forces exist beyond the physical and conceptually tied measurable world. Mindbrain duality further complicates this dispute as numerous questions encompassing physical (brain) and mental (mind) properties arise. Furthermore, localism suggests that the brain consists of specific areas with specific functioning purposes, whereas holism posits that the brain works as a single or aggregate entity. Nevertheless, dialogue about these queries, although fascinating and plentiful, exists beyond the scope of this essay and focus now shifts to neuroscience’s Western development.

The American Neurological Association (ANA) was founded in 1874. William A. Hammond (1828–1900) inspired its creation, and Silas W. Mitchell (1829–1914) was elected its first president in 1875. Hammond and Mitchell were surgeons serving in the American Civil War. They treated wounded soldiers by focusing on the nervous system. They also studied the effect of poison, specifically snake venom, on the nervous system. Additionally, the Society for Neuroscience (SfN) formed in 1969 with 500 members; it now has more than 40,000. Academically, more than 200 scholarly articles published in 2008 and 2009 mentioned neuroscience; legalistically, the number of court cases implicating neuroscience evidence doubled from 2006 to 2009. Neuroscience’s effect is far-reaching, but quite broad. Nevertheless, apparent increased interest stands as evidence that neuroscience, as O. D. Jones and F. X. Shen report in their 2012 overview of law and neuroscience in the United States, is continuing on a trajectory to become even more important in the years to come.

An additional neuroscience landmark worth noting refers to neuron doctrine. Santiago Ramon y Cajal (1836–1921) developed the concept of neuron doctrine, suggesting that the nervous system consists of nerves or bundles of cells identified as neurons and glia and that neurons composing of a synaptic cleft, dendrite, and axon communicate information through neurotransmission. Common neurotransmitters studied in criminology include norepinephrine, dopamine, and serotonin; each has been associated with antisocial behavior. This knowledge enables researchers and practitioners to reexamine behavior models and mental and physical illness with innovative neuroimaging methods. Neuroimaging methods including computed axial tomography (CAT) scans, positron emission tomography (PET), single-photon emission computed tomography (SPECT) scans, and fMRI and structural magnetic resonance imaging (MRI) permit researchers to delve deeper into the complex mechanics of the brain, thus improving the understanding of the nervous system and how it works, develops, malfunctions, and can be repaired.

However, neurorealism, or the philosophy of rejecting impractical and visionary use of neuroscience, provokes caution as the dilemma of drawing in-depth conclusions about phenomena, specifically behavior, based on currently available data (e.g., brain scans), must be considered, analyzed, and acknowledged. With this in mind, this essay now turns to notable case law involving neuroscience evidence.

Neuroscience in Criminal Law

In State v. Marshall (2001), the defendant initially pled guilty to first-degree murder. Consequently, he received a death sentence. However, after neurological testing, brain scan data revealed that the defendant suffered from brain damage. The Washington Supreme Court declared that the initial guilty plea should be withdrawn under the guise of mitigating evidence. Assessing the value of neuroevidence as a mitigating or aggravating circumstance in relation to sentencing is of significance for numerous criminal justice actors (e.g., lawyers, judges, offenders, and victims). For example, research shows mock jurors were more likely to reduce type and length of sentence, specifically in capital cases, when psychiatric diagnosis, neuropsychological testimony, and neuroimages were presented in conjunction with neuroevidence indicating high risk for future dangerousness.

The defendant in People v. Weinstein (1992) was charged with murdering his wife. The defense offered evidence of brain abnormalities through PET scans. The court determined the scans reasonable; however, it noted that a pathological link between PET scans and criminal behavior stands absent from the scientific community, and therefore, the evidence’s weight should be met with a certain degree of skepticism and caution. Nevertheless, Weinstein accepted a prosecutorial offered plea deal.

In Coe v. State (2002), the Tennessee Supreme Court determined that the defendant was competent to be executed, though MRI, PET, psychiatric, and cognitive evidence were presented at the trial. The court suggested that the defendant suffered from “some sort of personality disorder,” but this was not enough to overturn the sentence. In People v. Shawcross (1993), the defendant, Arthur Shawcross, known as the Genesee River Killer of Rochester, New York, appealed his murder conviction on the basis that absence of brain-imaging evidence equated to ineffective assistance of counsel. The courts unanimously affirmed his murder conviction. Both Oregon v. Kinkel (2002) and People v. Goldstein (2004) introduced images of brain abnormalities as evidence in an effort to reduce the sentence and prove an insanity defense, respectively.

Usefulness of Neuroscientific Evidence

Criminal law is a system of law concerning the chastisement of those who commit crimes. The justice system (i.e., law enforcement, courts, and corrections) apprehends, prosecutes, defends, sentences, and punishes suspects and convicts. The U.S. criminal justice system (USCJS) assumes that individuals are free, willing, rational actors and thus, crime is a rational choice. Consequently, the USCJS holds the individual accountable for their actions by determining varying degrees of culpability.

If detectable neurological predispositions that affect decision making and behavior, such as brain abnormalities caused by drug/alcohol addiction, psychopathy, or damage, are present within an individual, then it becomes ethically difficult to determine the culpability level, as he or she may be neurologically, biologically, or genetically predetermined to behave a certain way when exposed to specific types of stimuli. This poses difficulties for jurors, plea-bargaining prosecutors, and judicial court officials when determining guilt and applying the appropriate punishment while continuing to advance USCJS goals: retribution, deterrence, rehabilitation, restoration, and incapacitation. Additionally, debating the influence of neuroscience evidence may embolden the USCJS to reconsider various avenues for offender treatment, as the current incarceration method falls short of addressing predetermined behavior concerns.

In the 2011 edition of Reference Manual on Scientific Evidence, Henry T. Greely and Anthony D. Wagner suggest potential and existing constitutional engagement between neuroscience and the Fourth, Fifth, Sixth, and Eighth Amendments. The Fourth Amendment protects people against unreasonable searches and seizures. In this context, a defendant may have constitutional protection from submitting to state-mandated psychological testing, specifically in cases involving neuroimaging, unless, of course, a warrant is invoked. However, warrant issuance depends upon description of the “persons or things to be seized.” Constitutional conflict arises when attempting to define particular “brain” or “mind” characteristics and attributes as “things” to be seized.

The Fifth Amendment protects people from self-incrimination. Although the defendant maintains the right to remain silent, or not testify during his or her trial, the client may be subject to neuropsychological testing, potentially revealing certain brain characteristics and thus compelling the defendant to be a witness against him or herself without verbal testimony.

Arthur Shawcross in People v. Shawcross appealed his murder conviction based on ineffective assistance of counsel. The Sixth Amendment guarantees the right to defense, but this line blurs as neuroscience technology advances. If the technology is available, should every defendant be given the right to access it? Further, judiciary discretion or decision making plays a vital role in neuroscience evidence admissibility. For instance, a judge may rule specific neurorelated evidence inadmissible during the trial; however, in cases in which the state seeks the death penalty, judge and jury are required by the Eighth Amendment to consider mitigating and aggravating circumstances, thus justifying the admittance of neuro-related evidence. Nonetheless, the death penalty is treated differently and, at this point, it is only possible to speculate as to when determining guilt will be met with the same rigor as is applied to determining life or death in the court of criminal law.


Neuroimaging poses several ethical issues for the justice system interrelated to neuroscience relevance and admissibility in court. A judge decides the type of evidence used in a trial. The decision-making process that occurs for judges when presented with neuroscience evidence remains unmeasured and absent from the literature. Furthermore, new uses of neuroscience technology, such as pain and lie-detection techniques, continue to push admissibility boundaries. Empirical research has shown that certain dimensions of psychological evidence influences jurors’ decision making.

However, a neurorealistic approach asserts that drawing behavioral conclusions based on neuroscience is not as basic as court experts have presented it. Complex nervous system interactions remain often misunderstood and overstated, yet they are being used in court as explanatory factors for behavior. Further, the influence of neuroscience on criminal law becomes more complex as technology improves. Essentially, understanding offenders’ behavior by taking into account their neurobiology and life-course history unlocks groundbreaking treatment opportunities and generates innovative perspectives. Ethically, neuroscience evidence is intrusive. Brain images show characteristics of the human mind, and so the free-will philosophical assumption is challenged. It remains imperative that the courts, through law, continue to artfully navigate ever-increasing neuroscience technological advancements, remain consistent with the goals of punishment, and uphold offenders’ due process of law rights.


  1. Farah, M. J. “Neuroethics: The Ethical, Legal, and Societal Impact of Neuroscience.” Annual Review of Psychology, v.63 (2012).
  2. Jones, O. D. and F. X. Shen. “Law and Neuroscience in the United States.” In International Neurolaw: A Comparative Analysis, T. M. Spranger, ed. Berlin: Springer-Verlag, 2012.
  3. Morse, Stephen J. and Adina L. Roskies. A Primer on Criminal Law and Neuroscience. New York: Oxford University Press, 2013.

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