Criminal courts in the United States are facing a surge in the number of defendants arguing that their brains were to blame for their crimes and relying on questionable scans and other controversial, unproven neuroscience, a legal expert who has advised the president has warned.
Nita Farahany, a professor of law who sits on Barack Obama’s bioethics advisory panel, told a Society for Neuroscience meeting in San Diego
that those on trial were mounting ever more sophisticated defences that drew on neurological evidence in an effort to show they were not fully responsible for murderous or other criminal actions.
Lawyers typically drew on brain scans and neuropsychological tests to reduce defendants’ sentences, but in a substantial number of cases the evidence was used to try to clear defendants of all culpability. “What is novel is the use by criminal defendants to say, essentially, that my brain made me do it,” Farahany said following an analysis of more than 1,500 judicial opinions from 2005 to 2012.
The rise of so-called neurolaw cases has caused serious concerns in the country where brain science first appeared in murder cases, reports The guardian: “The supreme court has begun a review of how such evidence can be used in criminal cases. But legal and scientific experts nevertheless foresee the trend spreading to other countries, including the UK, and Farahany said she was expanding her work abroad.
“The survey even found cases where defendants had used neuroscience to argue that their confessions should be struck out because they were not competent to provide them. “When people introduce this evidence for competency, it has actually been relatively successful,” Farahany said.
“Few cases turn solely on neuroscience evidence, but scans and other techniques have swayed judgments in the past. In 2009, an Italian woman called Stefania Albertani pleaded guilty to murdering her sister, setting fire to the corpse and later attempting to kill her parents. She received a life sentence, but in 2011 Judge Luisa lo Gatto at a court near Milan considered new evidence based on brain scans and genetics. Experts argued that Albertani’s crime was driven by abnormalities in the anterior cingulate gyrus, which is involved in impulsivity, and the insula, which has been linked to aggression. The judge reduced Albertani’s sentence to 20 years.
“Despite the fact that the science is often poorly understood, and that some experts say it is too flimsy to use in court, such evidence has succeeded in reducing defendants’ sentences and in some cases clearing them of guilt altogether.”