Neurolaw is a growing area of legal specialization that uses medical technology (particularly neuroscience research and gene research) to answer enduring and bedeviling questions about criminal behavior and crime. A recent edition of NPR’s Talk of the Nation, provocatively titled “Can Genes And Brain Abnormalities Create Killers?“, explored recent developments in neurolaw. While the program illustrated how far both the science and the law have yet to go, there was one exchange about the evidentiary use of medical images (brain scans specifically) that I thought was specifically relevant to our discussions in this class. Here NPR correspondent Barbara Bradley Haggerty discusses differences among researchers about whether genes can cause criminal behavior (like a disease) or simply create a predisposition for behavior and how juries may or may not use scientific imaging in their deliberations about whether genes are a mitigating factor in assessing guilt and/or appropriate punishment.
HAGERTY: Well, I know. That is one of the really troubling things. I mean, Steven Ericson(ph), a forensic psychiatrist and lawyer, talks about this. He says, you know, alcoholics, alcoholism makes your brain different. It gives you kind of brain abnormalities. Does that mean that an alcoholic who kills someone while driving drunk should suddenly be able to argue hey, my brain made me do it, therefore I’m not as culpable.
This really opens a whole can of worms. This my brain made me do it, my genes made do it, is potentially a very well, it’s going to really challenge our legal system. Some people believe that it will really cause a revolution in the legal system.
CONAN: Well, before we get there, I mean, brain abnormalities, what’s a normal brain? Everybody has brain abnormalities.
HAGERTY: Right, you do, I do, everyone has brain abnormality – because, you know, the normal brain is the average of everyone. And so what are we going to do, slice and dice, everyone gets a brain scan when they are, you know, accused of some crime, and you’re able to say, well, because of this abnormality or that one, I should get a lesser sentence – maybe not off the hook, but a lesser sentence.
And I think a lot of people have a lot of trouble with that. The other thing that they worry about is also that this kind of these brain images, if presented to juries, can be very misleading.
You know, someone can look at that and go, oh, look at the pretty blue there, and oh, it’s, you know, yellow there, and his brain really is different from a normal brain. And they could say, well, that just means that he can’t be he isn’t culpable.
CONAN: Well, it seems to me that defense attorneys ought to be careful about what they ask for because this is a two-sided weapon, no?
HAGERTY: You’re absolutely right. In fact, in one of the cases I looked at, the public defenders were very upset that FMRI, brain-scan evidence, was used. And the reason they were so upset is people, jurors could just as easily say, you know, that’s a brain abnormality. That is not going to change. This guy is a danger to society. We’re going to give him the ultimate penalty, whether it’s life in prison or the death penalty. So it could really backfire.
Unlike CSI where there is never debate over what scientific data ultimately means in terms of guilt and justice, the real world of neurolaw illustrates the variety of interpretations, and ultimate punishments, jurors might assign to said data. The conservative narrative of CSI and other forensic and true crime programs assumes that jurors are more prone to leniency, to receive and interpret witness testimony through a sociological lens, leaving room for “crafty” lawyers to exploit emotion and free dangerous felons or, at the very least, find ways to mitigate culpability. I thought it was interested that in Hagerty’s latter example, the opposite proved true.
Hagerty just completed a three-part series on neuroscience and criminality for NPR’s Morning Edition. Part 1 follows Dr. Jim Fallon as he investigates his family’s violent past and wonders how he escaped criminal tendencies. Part 2 explores the work of Dr. Kent Kiehl as he travels around New Mexico prisons with a mobile MRI unit studying psychopathy via brain imaging . Part 3 explores the developments in predicting (or not) an individual’s predilection for criminal violence now using DNA analysis.