The advent of neuroscience has given the scientific community at large biological explanations for every action, from control of motion to social and intellectual cognition. However, neuroscience is a still a developing field, and the extent and speed at which neuroscientific evidence is being routinely implemented into Western legal systems is worrisome to many scientists. Currently, there is an unfortunate dichotomy between the legal and scientific realms that forces judgments about issues such as future dangerousness and the likelihood of recidivism in sentencing hearings, and arguments regarding pleas and the reduction or dismissal of charges in trials, to be made by judges with little scientific training and with the aid of neuroscientific methodologies used “in applications for which they were not intended, and for which those methods are inadequately tested.”
A paper by Brent Garland and Paul Glimcher discusses that in a recent Supreme Court case, Roper v. Simmons (2005), neuroscience was used to prohibit capital punishments for juvenile offenders under the age of 18 on the grounds that there was a “‘lack of maturity and an underdeveloped sense of responsibility’ in the young”. Similarly, the issue of neuroscience-based lie detection, specifically neuroscientific techniques attempting to identify intentional deception, has recently been at the forefront of ethical and legal consideration. A 1998 Supreme Court case, U.S. v. Scheffer, attempted to resolve the debate of whether brain scans conducted without consent violate the protections of the Fifth Amendment against self-incrimination or are simply another form of physical evidence, similar to fingerprints or DNA. The resolution was that the use of polygraph-based lie detection was prohibited in court-martial proceedings due to concerns about the technique’s reliability. Currently, a new method of lie detection known as “brain fingerprinting” is under investigation. This technique involves the placement of electroencephalographic electrodes on the parietal cortex in order to detect negative voltages associated with hearing or seeing novel stimuli, thereby assessing lies from truths. The use of this technique, and others with similar diagnostic value, in courtrooms in the near future is very plausible. If history is to teach us about the future, I find it very critical that neuroscientists present their technological developments, and specifically, the degree to which the technology and its findings can be statistically significant, with extreme caution before exposing it to the world as the next diagnostic tool in court cases. As neuroscience continues to develop and yields more promising techniques for behavioral analysis, neuroscientists are strongly urged to “weight their words carefully” and understand the new, legal ramifications of their work in an attempt to ensure proper policy decisions are made in the burgeoning field of neurolaw.