Rethinking Law

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These days, it seems, almost everyone is talking about the brain.

“We’re in an era,” says Duke University law and philosophy professor Nita Farahany, “where people are more than just fascinated with brains, they’re obsessed with their brains: there’s a modern ‘neurocentric’ view of the world, where it all comes down to the brain.  If you title a talk, Come Learn About Love, you’ll get a number of people there, because people are interested in love. But if you title it, Come Learn About the Brain and Love, you’ll have a sold-out crowd, because everybody wants to understand the neural mechanisms of love.”

Nita should know. Much of her current research focuses around “neurolaw” – exploring the impact that modern advances in neuroscience both have had and might continue to have on our justice system.

In recent years, she reveals, the number of cases in which defense attorneys have explicitly invoked neuroscientific evidence to support their clients has drastically increased.  Why?

“Primarily they’re trying to say, ‘My client is not as responsible as the person who had a fully autonomous, fully free, way to make a choice.’ They are comparing him with someone who doesn’t have any sort of neuroatypicality or any brain abnormality, someone who has full use of his conscious awareness, of his faculties, for decision-making. Effectively, they’re trying to say, ‘His brain made him do it.’”

Farahany - camera image

That sort of argument does seem to be having an impact in the courtroom, through lesser sentencing, incompetency to stand trial or, in some cases, outright acquittals. It is also, perhaps even more curiously, beginning to have an effect on the way defense lawyers behave, suddenly concerned about being sanctioned as “ineffective counsel”.  

“There’s a tiny, narrow category of cases in which people have been found to be ineffective assistance of counsel.  Just to demonstrate how hard it is for a lawyer to be officially condemned as ineffective counsel, there have been cases where a defense lawyer has been clearly shown to be asleep during trial – literally has his head down on the table and is asleep – and the court has said, ‘That wasn’t ineffective assistance of counsel, because he was awake for the important parts of the trial.’

“And what’s very unusual is that, in a number of cases now, failing to investigate the possibility of some sort of brain abnormality, particularly when any reasonable person interacting with the defendant would have recognized that there’s something neuroatypical about the person, has been found to be ineffective assistance of counsel.

“That means that it’s been found to be deficient to fail to investigate, and prejudicial, in that the judge thinks that the outcome of the case would have been substantially different had that investigation occurred.”

With such incentives for both defendant and defense counsel alike, it’s no wonder, then, that incidents of invoking neuroscience in the courtroom have suddenly gone way up.

But there is more to the story than simply safeguarding interests. Might modern advances in neuroscience and other biomedical technologies be able to help us understand and interpret our laws better, or indeed, perhaps come up with better, more appropriate ones?

Professor Farahany certainly thinks so. Originally attracted to pursue a law career through examining the impact of behavioral genetics in the criminal system, she has long felt attracted to the prospect of using various interdisciplinary approaches to shed light on the core societal values that the law naturally professes to support.

“I’m motivated to use neuroscience as a lens to try to examine our norms, and why we have our norms. Then, inspired by my philosophical background and training, I am led to ask, ‘Okay, well, that’s the law as it is, but why is it that way?’”

A classic example of this approach is her effort to examine the U.S. Fifth Amendment to the Constitution, with its famous privilege against self-incrimination, through the lens of contemporary neuroscience.

“I start off with the question, ‘If you could get at my mind, could you use it against me?’

“The doctrinal response would be, Well, what is the law likely to do? But, to understand what the law is likely to do, it’s useful to understand what the purpose of the law is in the first place.  Why do we actually have the privilege against self-incrimination? What’s the rationale for it? And, in light of the rationale, does whatever the doctrinal response, or the legal response, that we would have make sense in light of the underlying rationale?”

Customarily, she reveals, judges have made a distinction between “physical evidence” and the mental world of speech and thoughts when evaluating whether or not a defendant risked incriminating himself. But neuroscience has steadily eroded the line between the physical and the mental.

This clean divide we had was useful before we developed a more detailed scientific understanding, but now that our knowledge is changing it’s time to seriously reconsider how we’re doing things.

Invoking neuroscience, then, might be a great way to make a pop psychology lecture vastly more popular.  But the societal stakes related to developing a deeper knowledge of our brains are a lot higher than that.

Howard Burton, howard@ideasroadshow.com

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