All The More Reason

A Search Warrant for the Brain
April 4, 2007, 4:06 pm
Filed under: Uncategorized

Fascinating article here about how neuroscience could begin to play a part in criminal trials; firstly, as a souped-up way of detecting lies; secondly, and much more controversially, as a means of informing the extent to which defendants should be held responsible for their actions.

On the surface, this is nothing to write home about. Inquiry into the state of the accused’s brain is already sanctioned by the criminal law. Insanity – defined in the archaic ‘Mc’Naghten Rules’ as “a disease of the mind” leading to an ignorance of the difference between right and wrong- is already a complete defence to murder, and diminished responsibility – which excuses a defendant from blame for murder if it can be shown that he suffered from a ‘mental deficiency’ – reduces the offence to that of manslaughter. In each of these defences, evidence of either a physical or mental abnormality must be adduced; study of the brain can help to discern any such peculiarity.   

What experts in this article seem to be arguing for, though, is a vast extension in neuroscience’s scope of application to legal cases. Lawyers would be given the keys to an armory of neurological explanations for their client’s behaviour. Any harmful deviation from the norm, which is the essence of all crime, could be attributed to factors they are powerless to change; factors hard-wired into their brains.

 “To a neuroscientist, you are your brain; nothing causes your behavior other than the operations of your brain,” Greene says. “If that’s right, it radically changes the way we think about the law. The official line in the law is all that matters is whether you’re rational, but you can have someone who is totally rational but whose strings are being pulled by something beyond his control.”

In a strictly material sense, Greene has a point: without my brain I am not much use to anyone. But what he is saying seems to go further. Just as, to a Marxist, ‘you are your class’, or, to a feminist, ‘you are your gender’, Greene’s assertion that ‘to a neuroscientist, you are your brain’, merely offersyet another monolithic method of analysing and predicting behaviour.

All of which brings us back to a theme explored in a previous post on this site, namely, the gigantic shift in power that technological advances can produce. If all behaviour can be analysed by a neuroscientist, what need is there for a jury? What need is there even for a trial? As science gallops ahead at an unthinkable pace, it risks throwing the jockey off the saddle.


2 Comments so far
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The shift in power, mentioned in the second last paragraph is very interesting indeed. How many people would be capable of disagreeing with a neuroscientist on the state of a defendant’s brain? Why, only other neuroscientists of course! I’m not suggesting that there’s some sort of conspiracy amongst “experts”, but it certainly does help their cause. There are a lot of ways of seeing the evidence of someone’s insanity, including the crime itself, which may or may not have to do with the state of someone’s brain.

My only major disagreement with this piece is that describing science as progressing at an unthinkable pace implies that it is progressing linearly in all manners at breakneck speed. I don’t think this is true (and I should be careful here, as I’m hedging on trying to disprove a point which wasn’t really even in the original piece!)

Comment by J.S.

Yes, you’re right- I should really have said ‘as neuroscience progresses at an unthinkable pace’. And I think ‘unthinkable’ is a pretty good way to describe some of the ideas posited in that article. The idea of fingerprinting, or even DNA evidence is something that the layperson can at least comprehend; it’s essentially a binary outcome- either it matches or it doesn’t. Neuroscience seems to operate in much murkier shades of grey and, as such, leaves the uncontested expert witness in a powerful position to influence the jury.

Even where there was a consensus amongst experts that a particular defendant had, say, a part of the brain that made him lose his temper more easily than most, should we say that this neurological fact excuses the defendant’s behaviour? The neurologist who believes that ‘we are nothing but our brains’ would presumably believe so, but there is a case in justice for saying ‘tough luck, the other part of your brain that curbs these impulses will just have to work harder’. Whether this is a realistic medical argument is beyond my ken, which brings us back to the original problem…

In an adversarial system, expert witnesses are paid, essentially, to blind the jury with science. The risk that they will overstate their case is ever present. The case of Roy Meadow ( is salutary in this respect.

Comment by Michael P

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