- Published: September 4, 2012
- Written by Joshua P. Preston
In an article titled "Law and Neuroscience: Possibilities for Prosecutors" (2011), published in CDAA Prosecutors Brief, Vol. 33, No. 4, Francis X. Shen from the University of Minnesota Law School offers his advice on how prosecutors can function in a biologically-informed legal system. This is particularly interesting, I think, since it deviates from many other articles that emphasize the use of neuroscience as a tool for the defense. Before offering his advice to prosecutors, though, Shen notes the recent boom in neurolaw cases:
Although the absolute number of neurolaw cases remains small, preliminary assessments by Vanderbilt University law professor Nita Farahany indicate a rapid rate of growth, with twice as many reported cases involving neuroscientific evidence in 2009 as in 2006. Legal and scientific scholarship at the intersection of law and the brain sciences has also exploded, with nearly half of all neurolaw scholarship being published in just the past two years (Shen 19).
The reason for this, Shen continues, is because such evidence is persuasive - jurors are conscious of the fact that, to borrow a term from Dr. Eagleman, sufficient automatism matters. When there is reason to believe that an individual is ill it only makes sense to hold them to a different standard of punishment. Yet even so, since individuals approach modern science with certain preconceptions on its objectivity, its methods, and so on, attention must be paid to whether or not these preconceptions include misconceptions.
[B]rain science can be harnessed by prosecutors to enhance public safety and better respond to the needs of crime victims. But I also see less attractive scenarios on the horizon. If neuroscientific evidence is misued by attorneys and misinterpreted by courts, such evidence may hamper the effective administration of justice. Thus, it is up to those on the frontlines ... to ensure that our growing knowledge base about the brain is used to promote, not threaten, public safety (Shen 17).
Shen continues in his article to discuss three strategies he believes can alleviate such misuse of evidence. Such strategies include: "Emphasize That Abnormal Brains Cannot Fully Explain Criminal Behavior", "Utilize Cross-Examination to Show That the Lab Is Not the Real World", and "Use Brain Evidence to Show Future Dangerousness" (Shen 19-21). I'll leave it to the reader to investigate his arguments more fully because even as Shen's advice is a start for breaking down the public's scientific preconceptions it does not go far enough because neurolaw assumes a foundational knowledge that is not universal. By this I mean that even though the misuse of science's labors is problematic, the misunderstanding of science itself is outright damaging.
If there is one thing that cannot be stressed enough about the relationship between science and public policy, it is this: An increasingly complex science brings with it an increasingly complex understanding of ourselves, which is central to the increasingly complex institutions we create for ourselves. This is really the purpose of neurolaw - as neuroscience teaches us more about who we are we should use this knowledge to produce a more accomodating legal system. Simple. The problem though is that foundational to neurolaw are several concepts that are not palatable to those such a system is meant to serve. For example, proponents of neurolaw must acknowledge the following to be true:
- Evolution is a fact;
- "[T]here is currently no argument that convincingly nails down [free will's] existence" (Eagleman169); and related to this,
- Cartesian Dualism is unfounded and unexplainable in a materialistic universe. Where the writer C.S. Lewis may remark (I'm paraphrasing) that we aren't a body with a soul but a soul with a body, I would like to offer the realistic albeit less-poetic thought: No, we're a brain.
In contrast to these things, the public believes:
- According to a May 2012 Gallup Poll only 15% of those questioned believed "Human beings have developed over millions of years from less advanced forms of life, but God had no part in the process." 32% believe God had a part in the process. 46% believe "God created human beings pretty much in their present form at one time within the last 10,000 years or so", which must have surprised the prehistoric communities of southeastern Turkey who had already built their own religious temples nearly a millennium before creation.
- [Because of the deterministic universe I was unable to find any polls that directly related to the public's belief in free will, but I will not be surprised when the universe reveals its numbers to be approximately as high as the next statistic]:
- According to a 2009 Harris Poll 71% of people believe in the soul and its survival after death. That link directs to the prologue from Michael Shermer's book The Believing Brain: From Ghosts, Gods, and Aliens to Conspiracies, Economics, and Politics -- How the Brain Constructs Beliefs and Reinforces Them as Truths (2011), which I would highly recommend. In it he notes, absolutely relevant here, that science education often focuses on what science has discovered rather than how it works.
So when one considers the tension between the basic assumptions of neurolaw and the beliefs of the public at-large, even if prosecutors follow Shen's advice, they - in fact, the entire courtroom - will be at a handicap if this tension goes unresolved. Without solving this problem the efficacy of neuroscience in the courtoom becomes questionable as the evidence is not even allowed to stand on its own merits because such merits assume an understanding that is not there. Again, it is one thing for a lawyer to misuse scientific discoveries; it is another thing all together for a people to not understand how science works.
Chris Mooney and Sheril Kirshenbaum, authors of Unscientific America: How Scientific Illiteracy Threatens Our Future (2009), have suggested that scientific illiteracy has cost us at least twenty years on combating climate change. How many years and lives will it cost to create institutions that recognize us for what we are: complex, evolved, material human beings?
Eagleman, David M., Incognito: The Secret Lives of the Brain. New York: Pantheon, 2011. Print.
Shen, Francis X., Law and Neuroscience: Possibilities for Prosecutors (September 1, 2011). CDAA Prosecutors Brief, Vol. 33, No. 4, p. 17, 2011. Available at SSRN: http://ssrn.com/abstract=2078639