Brains in context in the neurolaw debate: the examples of free will and "dangerous" brains

Making Sense of Law: Critical Reflection on Neuroscience, Socialization, and Self

The development of sociotechnical codes by the legal system acts as a marker of good citizens and development of self where social norms matter. In most cases, despite cultural differences, socialization plays an important role in making sense of law. The question is, 'how does law come to mind and what is the role of brain? This question will be dealt keeping the debate on brain determinism and free will critically at the forefront.

Neuroethics and neurolaw in forensic neuropsychiatry: A guide for clinicians

As neuroscience technologies develop, ethical and legal questions arise regarding their use and societal impact. Neuroethics and neurolaw are growing interdisciplinary fields that address these questions. This review article presents the research agenda of both areas, examines the use and admissibility of neuroscience in expert testimony and legal settings, and discusses ethical issues related to forensic neuropsychiatrists claiming expertise in neuroscience, formulating medical opinions based on neuroscience, and considering its relevance to criminal responsibility. Forensic neuropsychiatrists should be aware of emerging neuroscientific evidence, its utility and limits in rendering diagnoses and explaining behavior, and, before seeking such evidence for legal purposes, its availability and admissibility. When testifying in matters involving neuroscientific evidence, ensuring truthfulness and balance, having sufficient and validated knowledge (including openness with confirming and disconfirming evidence), understanding standards of practice, and drawing relevant and appropriate conclusions remain important.

Neuroscience Education Begins With Good Science: Communication About Phineas Gage (1823-1860), One of Neurology's Most-Famous Patients, in Scientific Articles

Phineas Gage is one of the most famous neurological patients. His case is still described in psychology textbooks and in scientific journal articles. A controversy has been going on about the possible consequences of his accident, destroying part of his prefrontal cortex, particularly with respect to behavioral and personality changes. Earlier studies investigated the accuracy of descriptions in psychology textbooks. This is, to my knowledge, the first analysis of journal articles in this respect. These were investigated with regard to four criteria: Description of (1) personality changes, (2) psychopathy-like behavior, (3) alternative explanations besides the immediate brain damage, and (4) Gage's recovery. 92% of articles described personality changes, 52% of a psychopathy-like kind; only 4% mentioned alternative explanations and 16% described Gage's recovery. The results are discussed in the light of the available historical evidence. The article closes with several suggestions on improving science communication about the famous case.

Neurorights in History: A Contemporary Review of José M. R. Delgado's "Physical Control of the Mind" (1969) and Elliot S. Valenstein's "Brain Control" (1973)

Scholars from various disciplines discuss the ethical, legal, and social implications of neurotechnology. Some have proposed four concrete “neurorights”. This review presents the research of two pioneers in brain stimulation from the 1950s to 1970s, José M. R. Delgado and Elliot S. Valenstein, who also reflected upon the ethical, legal, and social aspects of their and other scientists’ related research. Delgado even formulated the vision “toward a psychocivilized society” where brain stimulation is used to control, in particular, citizens’ aggressive and violent behavior. Valenstein, by contrast, believed that the brain is not organized in such a way to allow the control or even removal of only negative processes without at the same time diminishing desirable ones. The paper also describes how animal and human experimentation on brain stimulation was carried out in that time period. It concludes with a contemporary perspective on the relevance of neurotechnology for neuroethics, neurolaw, and neurorights, including two recent examples for brain-computer interfaces.

Factors related to bias in forensic psychiatric assessments in criminal matters: A systematic review

OBJECTIVE

Identify factors related to bias in forensic psychiatric assessments in criminal matters.

METHOD

Based on the PRISMA guidelines, we searched the following keywords with Boolean operators: (criminal responsibility OR legal responsibility OR neurolaw OR insanity defense) AND (forensic psychiatry OR assessment OR evaluation OR bias OR decision-making OR capacity OR psychometric). The search included publications from January 1998 to December 2019 in the English language, published in PubMed, Web of Science, Taylor & Francis, and Scopus databases.

RESULTS

The final sample consisted of 30 articles separated into three groups: (1) legal elements and the wording of expert reports, (2) psychometric tools applied to criminal inquiries, and (3) expert forensic technique and inter-examiner agreement.

DISCUSSION

Multiple factors for biases were identified: difficulties in equivalence between legal and psychiatric terminologies, elements of countertransference between the expert and the examinee, absence of standardization of expert evaluations, low quality of expert reports, differences in the training of professionals involved in the evaluations, use of psychometric tools, number of professionals working on the same case, and the methodology adopted. Psychometric tools developed specifically for forensic psychiatric evaluations allowed the introduction of objective parameters in expert evaluations. Special attention was found in psychometric tools structured as vignettes that allowed the detailed evaluation of legal capacities, present in the legal texts. Psychometric tools in checklist format appeared to be more susceptible to interviewer biases.

CONCLUSION

The control of inherent biases in forensic psychiatry assessments on criminal matters remains a current challenge, difficult to control in forensic practice. The identification, control and avoidance of them may improve the quality the forensic psychiatric expertise in criminal matters.

Real Neurolaw in the Netherlands: The Role of the Developing Brain in the New Adolescent Criminal Law

Previous publications discussed the conditions under which courts admitted or could admit neurotechnological evidence like brain scans. There were also first attempts to investigate legal decisions neuroscientifically. The present paper analyzes a different way in which neuroscience already influenced the law: The legal justification of the new Dutch adolescent criminal law explicitly mentions findings on brain development to justify a higher maximum age for the application of juvenile criminal law than before. The lawmaker’s reasoning is compared with the neuroscientific studies on which it is based. In particular, three neurodevelopmental publications quoted by the Dutch Council for the Administration of Criminal Justice and Protection of Juveniles to justify that adolescents can be legally less responsible are analyzed in detail. The paper also addresses possibilities under which brain research could improve legal decision-making in the future. One important aspect turns out to be that neuroscience should not only matter on the level of justification, but also provide better instruments on the individual level of application.

'Biologizing' Psychopathy: Ethical, Legal, and Research Implications at the Interface of Epigenetics and Chronic Antisocial Conduct

Epigenetics, a field that links genetics and environmental influences on the expression of phenotypic traits, offers to increase our understanding of the development and trajectory of disease and psychological disorders beyond that thought of traditional genetic research and behavioural measures. By extension, this new perspective has implications for risk and risk management of antisocial behaviour where there is a biological component, such as psychopathy. Psychopathy is a personality disorder associated with repeat displays of antisocial behaviour, and is associated with the disproportionate imposition of harm on communities. Despite advances in our knowledge of psychopathic individuals, the construct remains complex and is hampered by a lack of integration across a range of fundamental domains. The clinical and forensic research on psychopathy is brought into conversation with the emerging field of epigenetics to highlight critical issues of (1) clinical definition and diagnosis, (2) assessment, (3) aetiology of psychopathic phenotypes, and (4) treatment and rehabilitation approaches. Broader ethical and legal questions of the role of epigenetic mechanisms in the management of psychopathy beyond the criminal justice arena are also outlined.

Causality in criminal forensic and in civil disability cases: Legal and psychological comparison

Causality (or causation) is central to every legal case, yet its underlying philosophical, legal, and psychological definitions and conceptions vary. In the criminal context, it refers to establishing the responsibility of the perpetrator of the criminal act at issue in terms of the person's mental state (mens rea), and whether the insanity defense applies. In the forensic disability and related context, it refers to whether the index event is a material or contributing cause in the multifactorial array that led to the psychological condition at issue. In both the criminal and tort contexts, the legal test is a counterfactual one. For the former, it refers to whether the outcome involved would have resulted absent the act (e.g., in cases of simultaneous criminal lethal action, which one is the but-for responsible one). For the latter, it concerns whether the claimed psychological condition would be present only because of the incident at issue. The latter event at issue is distinguished from the criminal one by its negligence compared to the voluntary intent in the criminal case. The psychological state of the perpetrator of criminal conduct can be analyzed from a biopsychosocial perspective as much as the civil one. In this regard, in the civil case, such as in forensic disability and related assessments, pre-existing, precipitating, and perpetuating factors need to be considered causally, with personal and social resilience and protective factors added, as well. In the criminal context, the same biopsychosocial model applies, but with mental competence and voluntariness added as a critical factor. The advent of neurolaw has led to use of neuroscience in court, but it risks reducing the complexity of criminal cases to unifactorial, biological models.

Neurobiological correlates in forensic assessment: a systematic review

BACKGROUND

With the increased knowledge of biological risk factors, interest in including this information in forensic assessments is growing. Currently, forensic assessments are predominantly focused on psychosocial factors. A better understanding of the neurobiology of violent criminal behaviour and biological risk factors could improve forensic assessments.

OBJECTIVE

To provide an overview of the current evidence about biological risk factors that predispose people to antisocial and violent behaviour, and determine its usefulness in forensic assessment.

METHODS

A systematic literature search was conducted using articles from PsycINFO, Embase and Pubmed published between 2000 and 2013.

RESULTS

This review shows that much research on the relationship between genetic predisposition and neurobiological alterations with aggression is performed on psychiatric patients or normal populations. However, the number of studies comparing offenders is limited. There is still a great need to understand how genetic and neurobiological alterations and/or deficits are related to violent behaviour, specifically criminality. Most studies focus on only one of the genetic or neurobiological fields related to antisocial and/or violent behaviour. To reliably correlate the findings of these fields, a standardization of methodology is urgently needed.

CONCLUSION

Findings from the current review suggest that violent aggression, like all forms of human behaviour, both develops under specific genetic and environmental conditions, and requires interplay between these conditions. Violence should be considered as the end product of a chain of life events, during which risks accumulate and potentially reinforce each other, displaying or triggering a specific situation. This systematic review did not find evidence of predispositions or neurobiological alterations that solely explain antisocial or violent behaviour. With better designed studies, more correlation between diverse fields, and more standardisation, it might be possible to elucidate underlying mechanisms. Thus, we advocate maintaining the current case-by-case differentiated approach to evidence-based forensic assessment.

Media reporting of neuroscience depends on timing, topic and newspaper type

The rapid developments in neuroscientific techniques raise high expectations among the general public and therefore warrant close monitoring of the translation to the media and daily-life applications. The need of empirical research into neuroscience communication is emphasized by its susceptibility to evoke misconceptions and polarized beliefs. As the mass media are the main sources of information about (neuro-)science for a majority of the general public, the objective of the current research is to quantify how critically and accurately newspapers report on neuroscience as a function of the timing of publication (within or outside of periods of heightened media attention to neuroscience, termed "news waves"), the topic of the research (e.g. development, health, law) and the newspaper type (quality, popular, free newspapers). The results show that articles published during neuroscience news waves were less neutral and more optimistic, but not different in accuracy. Furthermore, the overall tone and accuracy of articles depended on the topic; for example, articles on development often had an optimistic tone whereas articles on law were often skeptical or balanced, and articles on health care had highest accuracy. Average accuracy was rather low, but articles in quality newspapers were relatively more accurate than in popular and free newspapers. Our results provide specific recommendations for researchers and science communicators, to improve the translation of neuroscience findings through the media: 1) Caution is warranted during periods of heightened attention (news waves), as reporting tends to be more optimistic; 2) Caution is also warranted not to follow topic-related biases in optimism (e.g., development) or skepticism (e.g., law); 3) Researchers should keep in mind that overall accuracy of reporting is low, and especially articles in popular and free newspapers provide a minimal amount of details. This indicates that researchers themselves may need to be more active in preventing misconceptions to arise.

The neuroethics and neurolaw of brain injury

Neuroethics and neurolaw are fields of study that involve the interface of neuroscience with clinical and legal decision-making. The past two decades have seen increasing attention being paid to both fields, in large part because of the advances in neuroimaging techniques and improved ability to visualize and measure brain structure and function. Traumatic brain injury (TBI), along with its acute and chronic sequelae, has emerged as a focus of neuroethical issues, such as informed consent for treatment and research, diagnostic and prognostic uncertainties, and the subjectivity of interpretation of data. The law has also more frequently considered TBI in criminal settings for exculpation, mitigation and sentencing purposes and in tort and administrative law for personal injury, disability and worker's compensation cases. This article provides an overview of these topics with an emphasis on the current challenges that the neuroscience of TBI faces in the medicolegal arena.

Conceptual shifts needed to understand the dynamic interactions of genes, environment, epigenetics, social processes, and behavioral choices

Social and behavioral research in public health is often intimately tied to profound, but frequently neglected, biological influences from underlying genetic, environmental, and epigenetic events. The dynamic interplay between the life, social, and behavioral sciences often remains underappreciated and underutilized in addressing complex diseases and disorders and in developing effective remediation strategies. Using a case-study format, we present examples as to how the inclusion of genetic, environmental, and epigenetic data can augment social and behavioral health research by expanding the parameters of such studies, adding specificity to phenotypic assessments, and providing additional internal control in comparative studies. We highlight the important roles of gene-environment interactions and epigenetics as sources of phenotypic change and as a bridge between the life and social and behavioral sciences in the development of robust interdisciplinary analyses.

A neurolaw perspective on psychiatric assessments of criminal responsibility: decision-making, mental disorder, and the brain

In some criminal law cases, the defendant is assessed by a forensic psychiatrist or psychologist within the context of an insanity defense. In this article I argue that specific neuroscientific research can be helpful in improving the quality of such a forensic psychiatric evaluation. This will be clarified in two ways. Firstly, we shall adopt the approach of understanding these forensic assessments as evaluations of the influence of a mental disorder on a defendant's decision-making process. Secondly, I shall point to the fact that researchers in neuroscience have performed various studies over recent years on the influence of specific mental disorders on a patient's decision-making. I argue that such research, especially if modified to decision-making in criminal scenarios, could be very helpful to forensic psychiatric assessments. This kind of research aims to provide insights not merely into the presence of a mental disorder, but also into the actual impact of mental disorders on the decisions defendants have made in regard to their actions.