Could Neurotechnology Soon Be Used
To Declare Us Guilty Before Innocent?
In the circles of jurisdictional procedures and enforcement, there
is an undeniable international cooperation taking place to presume
guilt before innocence. As such, dubious modalities are being modeled
in neuroscience to make perpetrators of crimes accountable before
they even commit these crimes. Through invasive brain scanning techniques,
these approaches are attempting to penetrate the entire legal system
to show us that we do not have free choice and that neuro-determinism
can and should be used in a court of law.
What if a jury could decide a man's guilt through mind reading?
What if reading a defendant's memory could betray their guilt?
And what constitutes 'intent' to commit murder?
Legal expert Megan Meyercord, said the advances in neurotechnology
are creating an unequal development in international criminal
law which are influencing national jurisdiction. "Neuroscience
is still very much in its infancy around the world, yet many countries
are seriously considering using neuroscience on those who are
seized, treated, and transported before their court date."
Meyercord stated that tensions are building between legal professionals
in states, regional and international courts on inevitable abuse
mechanisms from the use of neurotechnology which will endorse
jurisdictional doctrines that ignore the traditional legal process
and potentially affect how a perpetrator appears before the court.
"Neurolaw could effectively allow a medical device to declare
an innocent man guilty before he is even given the opportunity
to speak or given a trial," said Meyercord.
In the article "Neurolaw,"
in the inaugural issue of WIREs Cognitive Science, co-authors
Walter Sinnott-Armstrong and Annabelle Belcher assess the potential
for the latest cognitive science research to revolutionize the
Neurolaw, also known as legal neuroscience, builds upon the research
of cognitive, psychological, and social neuroscience by considering
the implications for these disciplines within a legal framework.
The claim of some neuroscientisits is that these disciplinary
collaborations have increased our knowledge of the way the human
brain operates, and now neurolaw continues this trend.
One of the most controversial ways neuroscience is being used
in the courtroom is through 'mind reading' and the detection of
mental states. While only courts in New Mexico currently permit
traditional lie detector, or polygraph, tests there are a number
of companies claiming to have used neuroscience methods to detect
lies. Some of these methods involve electroencephalography (EEG),
whereby brain activity is measured through small electrodes placed
on the scalp. This widely accepted method of measuring brain electrical
potentials has already been used in two forensic techniques which
have appeared in US courtrooms: brain fingerprinting and brain
electrical oscillations signature (BEOS). Brain fingerprinting
purportedly tests for 'guilty knowledge,' or memory of a kind
that only a guilty person could have. Other forms of guilt detection,
using functional magnetic resonance imaging (fMRI), are based
on the assumption that lying and truth-telling are associated
with distinctive activity in different areas of the brain. These
and other potential forms of 'mind reading' are still in development
but may have far-reaching implications for court cases.
Should courts be in the business of deciding when to mitigate
someone's criminal responsibility because his brain functions
improperly, whether because of age, in-born defects or trauma?
As we learn more about criminals' brains, will we have to redefine
our most basic ideas of justice?
Two of the most ardent supporters of the claim that neuroscience
requires the redefinition of guilt and punishment are Joshua D.
Greene, an assistant professor of psychology at Harvard, and Jonathan
D. Cohen, a professor of psychology who directs the neuroscience
program at Princeton. Greene got Cohen interested in the legal
implications of neuroscience, and together they conducted a series
of experiments exploring how people's brains react to moral dilemmas
involving life and death. In particular, they wanted to test people's
responses in the f.M.R.I. scanner to variations of the famous
trolley problem, which philosophers have been arguing about for
"To a neuroscientist, you are your brain; nothing causes
your behavior other than the operations of your brain," Greene
says. "If that's right, it radically changes the way we think
about the law. The official line in the law is all that matters
is whether you're rational, but you can have someone who is totally
rational but whose strings are being pulled by something beyond
his control." In other words, even someone who has the illusion
of making a free and rational choice between soup and salad may
be deluding himself, since the choice of salad over soup is ultimately
predestined by forces hard-wired in his brain. Greene insists
that this insight means that the criminal-justice system should
abandon the idea of retribution -- the idea that bad people should
be punished because they have freely chosen to act immorally --
which has been the focus of American criminal law since the 1970s,
when rehabilitation went out of fashion. Instead, Greene says,
the law should focus on deterring future harms. In some cases,
he supposes, this might mean lighter punishments. "If it's
really true that we don't get any prevention bang from our punishment
buck when we punish that person, then it's not worth punishing
that person," he says.
"Some proponents of neurolaw think that neuroscience will
soon be used widely throughout the legal system and that it is
bound to produce profound changes in both substantive and procedural
law," conclude the authors. "Other leaders in neurolaw
employ a less sanguine tone, urging caution so as to prevent misuses
and abuses of neuroscience within courts, legislatures, prisons,
and other parts of the legal system. Either way we need to be
ready to prevent misuses and encourage legitimate applications
of neuroscience and the only way to achieve these goals is for
neuroscientists and lawyers to work together in the field of neurolaw."
Meyercord suggests that neuroscience be thoroughly examined for
its violative nature and practical use before being implemented
as a permanent staple to measure innocence or guilt.
Neuroethics at the World Science Festival
Raymond Tallis - Free Will and the Brain
Kelley Bergman is a media consultant, critic and geopolitical
investigator. She has worked as a journalist and writer, specializing
in geostrategic issues around the globe.