Neuroscience and legal determination of criminal responsibility

Preserved intention understanding during moral judgments in schizophrenia

INTRODUCTION

Although there is convincing evidence for socio-cognitive impairments in schizophrenia spectrum disorder (SSD), little evidence is found for deficient moral cognition. We investigated whether patients with SSD showed altered moral judgments in a story task where the protagonist either had a neutral or malicious intention towards another person. This paradigm examined whether SSD relates to altered moral cognition in general or specifically to impaired integration of prior information (such as beliefs) in moral judgments.

METHODS

23 patients and 32 healthy controls read vignettes created in a 2 x 2 design. The protagonist in each story either had a neutral or negative intention towards another person which, as a result, either died (negative outcome) or did not die (neutral outcome). Participants rated the moral permissibility of the protagonist's action. Standard null hypothesis significance testing and equivalent Bayes analyses are reported.

RESULTS

Schizophrenia patients did not differ significantly in permissibility ratings from healthy controls. This finding was supported by the Bayes analyses which favoured the null hypothesis. Task performance was not related to symptom severity or medication.

CONCLUSIONS

The current findings do not support the notion that moral judgments are deficient in schizophrenia. Furthermore, the current study shows that patients do not have observable difficulties in integrating the protagonist's belief in the rating of the moral permissibility of the action-outcome.

The Use of Neuroscience and Psychological Measurement in England's Court of Protection

The 2005 Mental Capacity Act of England and Wales provides a description in statute law of a test determining if a person lacks "mental capacity" to take a particular decision and describes how the "best interests" of such a person should be determined. The Act established a new Court of Protection (CoP) to hear cases related to the Act and to rule on disputes over mental capacity. The court gathers a range of evidence, including reports from clinicians and experts. Human rights organisations and others have raised concerns about the nature of assessments for incapacity, including the role of brain investigations and psychometric tests. Aim: Describe use and interpretation of structured measures of psychological and brain function in CoP cases, to facilitate standardisation and improvement of practices, both in the courtroom and in non-legal settings. Method: Quantitative review of case law using all CoP judgments published until 2019. The judgments (n = 408) were read to generate a subset referring to structured testing (n = 50). These were then examined in detail to extract the nature of the measurements, circumstances of their use and features of interpretation by the court. Results: The 408 judgments contained 146 references to structured measurement of psychological or brain function, spread over 50 cases. 120/146 (82.2%) referred to "impairment of mind or brain," with this being part of assessment for incapacity in 58/146 (39.7%). Measurement referred on 25/146 (17.1%) occasions to "functional decision-making abilities." Structured measures were used most commonly by psychiatrists and psychologists. Psychological measurements comprised 66.4% of measures. Neuroimaging and electrophysiology were presented for diagnostic purposes only. A small number of behavioural measures were used for people with disorders of consciousness. When assessing incapacity, IQ and the Mini-Mental-State Examination were the commonest measures. A standardised measure of mental capacity itself was employed just once. Judges rarely integrated measurements in their capacity determinations. Conclusion: Structured testing of brain and psychological function is used in limited ways in the Court of Protection. Whilst there are challenges in creating measures of capacity, we highlight an opportunity for the neuroscience community to improve objectivity in assessment, inside and outside the courtroom.

To what extent should expert psychiatric witnesses comment on criminal culpability?

Following the Court of Appeal case of R v Edwards in England and Wales, there has been increasing pressure for expert psychiatric witnesses to comment explicitly on how a defendant’s mental disorder affects their culpability. Culpability is the degree to which a person can be held morally or legally responsible for their conduct, but defining culpability has proved difficult. Mental disorder does not translate easily into degrees of legal culpability. Although psychiatric evidence will often be central to such cases, the determination of culpability is a matter for the court, and experts should not comment on it explicitly. Nevertheless, certain areas of psychiatry may have a bearing on culpability, and ways in which experts may comment on these are suggested. Given the pressure on judges to determine culpability, experts need to be honest about the limits of medical science to answer legal questions and the professional necessity to remain within their area of expertise.

In defense of free will: Neuroscience and criminal responsibility

Is neuroscience the death of free will and if so, does this mean the imminent demise of the psycho-legal practices related to insanity and criminal responsibility? For many scholars of neuro-jurisprudence, recent advances in brain sciences suggesting that the perception of free will is merely illusory, an epiphenomenon of unconscious brain activity, do indeed undermine our traditional understandings of moral and legal responsibility. In this paper, however, we reject this radical claim and argue that neuroscientific evidence can indeed reveal how free will actually works and how its underlying neural and perceptual machinery gives rise to our sense of responsibility for our actions. First, the experience of free will is recast in terms of neuroscientific studies of agency and willed action. Second, evidence is presented of a neural network model linking agency to widely-distributed brain areas encompassing frontal motor and parietal monitoring sites. We then apply these findings to criminal responsibility practices by demonstrating (a) how the experience of intentionality and agency is generated by specific interactions of this discrete frontal-parietal network, (b) how mental disease/defect may compromise this network, and (c) how such pathologies may lead to disturbances in the sense of agency that often are central to the phenomenological experience of psychosis. The paper concludes by examining criminal responsibility practices through the lens of cultural evolution of fairness and cooperation.

Effects of Mental Health and Neuroscience Evidence on Juror Perceptions of a Criminal Defendant: the Moderating Role of Political Orientation

Several recent studies have examined the effects of mental health and neuroscientific evidence on attitudes toward criminal defendants, suggesting that these factors may influence juror decision-making in meaningful ways. Few studies to date have manipulated both of these variables while also considering theoretically important individual difference variables (e.g., political orientation). Using a criminal case simulation, this study manipulated the presence of evidence concerning mental disorders (psychopathy and schizophrenia) and increasing levels of neuroscientific detail regarding a defendant's brain injury, and examined verdicts and sentencing recommendations in over 400 persons attending jury duty. Main effects were detected for mental health testimony and political orientation, although interactions were noted as well. More negative reactions to defendants labeled as psychopaths were relatively consistent, whereas participants who identified as liberal generally were less punitive towards a defendant identified as schizophrenic than were more conservative jurors. Consistent with other recent research, juror perceptions of the defendant's level of psychopathic traits (independent of the effects of the experimental manipulations) predicted guilty verdicts and longer sentencing recommendations. Copyright © 2016 John Wiley & Sons, Ltd.

Neuroscience in forensic psychiatry: From responsibility to dangerousness. Ethical and legal implications of using neuroscience for dangerousness assessments

Neuroscientific evidence is increasingly being used in criminal trials as part of psychiatric testimony. Up to now, "neurolaw" literature remained focused on the use of neuroscience for assessments of criminal responsibility. However, in the field of forensic psychiatry, responsibility assessments are progressively being weakened, whereas dangerousness and risk assessment gain increasing importance. In this paper, we argue that the introduction of neuroscientific data by forensic experts in criminal trials will be mostly be used in the future as a means to evaluate or as an indication of an offender's dangerousness, rather than their responsibility. Judges confronted with the pressure to ensure public security may tend to interpret neuroscientific knowledge and data as an objective and reliable way of evaluating one's risk of reoffending. First, we aim to show how the current socio-legal context has reshaped the task of the forensic psychiatrist, with dangerousness assessments prevailing. In the second part, we examine from a critical point of view the promise of neuroscience to serve a better criminal justice system by offering new tools for risk assessment. Then we aim to explain why neuroscientific evidence is likely to be used as evidence of dangerousness of the defendants. On a theoretical level, the current tendency in criminal policies to focus on prognostics of dangerousness seems to be "justified" by a utilitarian approach to punishment, supposedly revealed by new neuroscientific discoveries that challenge the notions of free will and responsibility. Although often promoted as progressive and humane, we believe that this approach could lead to an instrumentalization of neuroscience in the interest of public safety and give rise to interventions which could entail ethical caveats and run counter to the interests of the offenders. The last part of this paper deals with some of these issues-the danger of stigmatization for brain damaged offenders because of adopting a purely therapeutic approach to crime, and the impact on their sentencing, in particular.

Molecular genetics and antisocial behavior: where do we stand?

Over the last two decades, it has become increasingly evident that control of aggressive behavior is modulated by the individual genetic profile as well. Several candidate genes have been proposed to play a role in the risk to develop antisocial behavior, and distinct brain imaging studies have shown that specific cortical areas may be functionally and/or structurally impaired in impulsive violent subjects on the basis of their genotypes. In this paper, we review the findings regarding four polymorphisms-MAOA (Monoamine oxidase A) uVNTR, SLC6A4 (solute carrier family 6 (neurotransmitter transporter), member 4) 5HTTLPR, COMT (Catechol-O-methyltransferase) Val158Met and DRD4 (dopamine D4 receptor) VNTR 1-11-that all have been found to be associated with an increased vulnerability for antisocial and impulsive behavior in response to aversive environmental conditions. These results, however, have not been replicated by other studies, likely because of crucial methodological discrepancies, including variability in the criteria used to define antisocial behavior and assessment of environmental factors. Finally, it has been recently proposed that these genetic variants may actually increase the individual susceptibility not merely to the negative environmental factors, but to the positive ones as well. In this view, such alleles would play a wider modulatory role, by acting as "plasticity" rather than "vulnerability" genes. Overall, these findings have potential important implications that span well outside of neuroscience and psychiatry, to embrace ethics, philosophy, and the law itself, as they pose new challenges to the very notion of Free Will. Novel properly controlled studies that examine multi-allelic genetic profiles, rather than focusing on distinct single variants, will make it possible to achieve a clearer understanding of the molecular underpinnings of the nature by nurture interaction.

The human brain-from cells to society

In December 2011, the European Science Foundation (ESF) brought together experts from a wide range of disciplines to discuss the issues that will influence the development of a healthier, more brain-aware European society. This perspective summarizes the main outcomes of that discussion and highlights important considerations to support improved mental health in Europe, including: The development of integrated neuropsychotherapeutic approaches to the treatment of psychiatric disorders.The development of more valid disease models for research into psychiatric disorders.An improved understanding of the relationship between biology and environment, particularly in relation to developmental plasticity and emerging pathology.More comparative studies to explore how scientific concepts relating to the human brain are received and understood in different sociocultural contexts.Research into the legal and ethical implications of recent developments in the brain sciences, including behavioral screening and manipulation, and emerging neurotechnologies. The broad geographical spread of the consulted experts across the whole of Europe, along with the wide range of disciplines they represent, gives these conclusions a strong scientific and pan-European endorsement. The next step will be to look closely into these five selected topics, in terms of research strategy, science policy, societal implications, and legal and ethical frameworks.

It’s All in Your Head

In this article, we argue that entrepreneurship researchers would benefit from incorporating methods and technologies from the neurosciences. Many of the phenomena studied in entrepreneurship scholarship invoke the mind of the entrepreneur, and these can be best understood with the emerging technologies used to understand the brain and its works, particularly those that study entrepreneurial cognition and emotion.

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.

Impulse control and criminal responsibility: lessons from neuroscience

Almost all of the world's legal systems recognize the "M'Naghten" exception to criminal responsibility: the inability to appreciate the wrongfulness of action. This exception rests on the assumption that punishment is morally justified only if the defendant was able to choose whether to do wrong. Jurists and jurisdictions differ, however, on whether to extend M'Naghten's logic to cases where the defendant understood the wrongfulness of an act but was incapable of resisting an impulse to commit it. In this article I ask whether contemporary neuroscience can help lawmakers to decide whether to adopt or retain this defense, known variously as the "irresistible impulse" defense or the "control" or "volitional" test for insanity. More specifically, I ask firstly, whether it is empirically true that a person can understand the wrongfulness of an act yet be powerless to refrain from committing it; and second (assuming an affirmative answer to the first), whether the law of criminal responsibility can practically accommodate this phenomenon? After canvassing the relevant neuroscientific literature, I conclude that the answer to the first question is "yes." After examining the varied treatment of the defense in the United States and other nations, I also give an affirmative answer to the second question, but only in limited circumstances. In short, the defense of irresistible impulse should be recognized, but only when it can be shown that the defendant experienced a total incapacity to control his or her conduct in the circumstances.

Neuroimaging and Responsibility Assessments

Could neuroimaging evidence help us to assess the degree of a person's responsibility for a crime which we know that they committed? This essay defends an affirmative answer to this question. A range of standard objections to this high-tech approach to assessing people's responsibility is considered and then set aside, but I also bring to light and then reject a novel objection-an objection which is only encountered when functional (rather than structural) neuroimaging is used to assess people's responsibility.

Psychopathy--an approach to neuroscientific research in forensic psychiatry

"Psychopathy" is a construct that has come into vogue again in science and practice. In line with the growing impact, different diagnostic approaches have been used to investigate forensically relevant social behavior as well as involved brain functions and structures. Research on psychopathy has become of major importance for empirical research in forensic psychiatry. An overview on the development of the concept of psychopathy is given; the heterogeneity of the diagnostic tools is addressed, focusing critically on the characteristics of the included samples. Neurobiological findings on psychopathy are presented, focusing in particular on structural and functional imaging data. Limitations and further requirements of neuroimaging research in psychopathy are discussed. In order to emphasize the limitations of lesion studies, in particular in a forensic context, a case report on pseudoneurasthenia following orbitofrontal brain damage without any change in behavior is presented.

Exploring the similarities and differences between medical assessments of competence and criminal responsibility

The medical assessments of criminal responsibility and competence to consent to treatment are performed, developed and debated in distinct domains. In this paper I try to connect these domains by exploring the similarities and differences between both assessments. In my view, in both assessments a decision-making process is evaluated in relation to the possible influence of a mental disorder on this process. I will argue that, in spite of the relevance of the differences, both practices could benefit from the recognition of this similarity. For cooperative research could be developed directed at elucidating exactly how various mental disturbances can affect decision-making processes.

[Forensic psychiatry in the era of neuroscience: present status and outlook for neurobiological research]

Progress in neurobiological research has influenced our view of human beings and the basics of their behavior. Regarding criminal law and forensic psychiatry, established codes of practice are being challenged by neuroscientific research. This article gives an overview of neurobiological findings and methods in the context of forensic psychiatric issues. Empirical approaches to addressing important legal questions are outlined. Principles behind forensic psychiatric expert opinions are given. The effect and future of neuroscientific findings and methods in answering forensic psychiatric questions are discussed. Limitations and legal and ethical requirements are addressed.

Neuroscience and the law: philosophical differences and practical constraints

Controversies surrounding the value of neuroscience as forensic evidence are explored from the perspective of the philosophy of mind, as well as from a practical analysis of the state of the scientific research literature. At a fundamental philosophical level there are profound differences in how law and neuroscience view the issue of criminal responsibility along the continuum from free will to determinism. At a more practical level, significant limitations in the current state of neuroimaging research constrain its ability to inform legal decision-making. Scientifically supported and unsupported forensic applications for brain imaging are discussed, and recommendations for forensic report writing are offered.

Neuroscience, moral reasoning, and the law

Modern advancements in functional magnetic resonance imaging (fMRI) technology have given neuroscientists the opportunity to more fully appreciate the brain's contribution to human behavior and decision making. Morality and moral reasoning are relative newcomers to the growing literature on decision neuroscience. With recent attention given to the salience of moral factors (e.g. moral emotions, moral reasoning) in the process of decision making, neuroscientists have begun to offer helpful frameworks for understanding the interplay between the brain, morality, and human decision making. These frameworks are relatively unfamiliar to the community of forensic psychologists, despite the fact that they offer an improved understanding of judicial decision making from a biological perspective. This article presents a framework reviewing how event-feature-emotion complexes (EFEC) are relevant to jurors and understanding complex criminal behavior. Future directions regarding converging fields of neuroscience and legal decision making are considered.

The frontal lobe and aggression

Frontal lesions often lead to psychosocial problems. It is not surprising that frontal lobe dysfunctions have been proposed to underlie antisocial behaviour in individuals without apparent lesions. However, physical aggression and violence have never been systematically related to acquired lesions. Whereas, traditional neuropsychological testing identifies problems in cognitive and emotional information processing, recent brain-imaging studies have revealed both the frontal structural and functional underpinnings of antisocial behaviour. Careful characterization of antisocial behaviour subtypes seems to indicate that cognitive-neuropsychological function is systematically poor in physical aggression and hyperactivity. Recent refinements point to biological and genetic moderators of that association.

Brain abnormalities in antisocial individuals: implications for the law

With the increasing popularity in the use of brain imaging on antisocial individuals, an increasing number of brain imaging studies have revealed structural and functional impairments in antisocial, psychopathic, and violent individuals. This review summarizes key findings from brain imaging studies on antisocial/aggressive behavior. Key regions commonly found to be impaired in antisocial populations include the prefrontal cortex (particularly orbitofrontal and dorsolateral prefrontal cortex), superior temporal gyrus, amygdala-hippocampal complex, and anterior cingulate cortex. Key functions of these regions are reviewed to provide a better understanding on how deficits in these regions may predispose to antisocial behavior. Objections to the use of imaging findings in a legal context are outlined, and alternative perspectives raised. It is argued that brain dysfunction is a risk factor for antisocial behavior and that it is likely that imaging will play an increasing (albeit limited) role in legal decision-making.

Mental health legislation in the commonwealth

PURPOSE OF REVIEW

Mental health law is changing in some common law jurisdictions. Questions are being asked about whether special legislation is still needed, whether it is a health or a legal issue, and how this part of the law relates to cognate laws about patient consent to healthcare and determinations about competence. The role of tribunal or court adjudication of the need for admission is also debated, along with the capacity of the law to harness resources or manage care. It is therefore timely to review these debates.

RECENT FINDINGS

Renewed support is evident in the literature for subsuming mental healthcare within the general laws governing consent to care or determinations of competence. Socio-legal and interdisciplinary research suggests that health perspectives are already quite dominant in mental health law, while involuntary detention may correlate poorly with levels of need. The mesh between the law and service systems remains problematic, and there is little evidence that law has yet developed a significant capacity for leveraging treatment resources.

SUMMARY

This review suggests that the priority for future research lies in exploring the factors which enhance treatment access and outcomes for the mentally ill rather than debating the shape or content of mental health law.