Neuroscience in the Courtroom

Overview
- Some legal concepts:
 Actus reus and mens rea

- How often is neuroscientific evidence used in Court?

 Most of the research is conducted in the US, and some results are relevant to the UK.

- MAOA in Court
- TBI in Court
 Should the Court consider this evidence as mitigating, cast your vote!

 The influence of neuroscientific evidence on mock jurors.

Some legal concepts

“actus non facit reum nisi mens sit rea”

 English translation: “An act does not render the actor guilty unless his mind is guilty too”.
 It is in the Common law original formulation of the common law.
 Early principle in criminal law.
 Fundamental principle to define criminal liability.

 Generally, Criminal law describes offences as being composed of two elements:

o Actus reus: “reus” (guilty of), “guilty act” involves proving that the person committed
the crime.
o Result crime: the defendant’s act has caused a particular outcome (e.g., murder).
o Conduct crime: the defendant’s act is sufficient to prove actus reus (e.g., dangerous
driving).

 Men's rea: “guilty mind” involves determining the person’s mental state at the time of the
offence and if the defendant had the mental capacity to understand the consequences of
such actions and form intent.
o Crime of intention: (high degree of fault) The defendant had formed a deliberate intent.
o Crime of recklessness: The defendant was aware of the risk and decided to take it.

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 Not guilty defence
Adversarial juridical system (England and Wales)
 Prosecution:
o must persuade the jury the defendant is guilty beyond reasonable doubt.

 Defence:
o does not have to prove innocence (i.e., a person is presumed innocent until the opposite
is proven)
o raises doubts on the validity of the evidence provided by the prosecution, including:
- raises the possibility that the defendant did not commit the crime (actus reus).
- increases the likelihood that the defendant could not appreciate the damage when
committing the act (mens rea).

Neuroscientific evidence
Researchers are documenting a growing number of cases whereby neurobiological evidence
is presented to the courts (Denno, 2015; Farahany, 2016; de Kogel & Westgeest, 2015).

In the US, neuroscientific evidence was used:

- In 1585 cases between 2005 and 2012.
- as a mitigating factor in 5% of all murders and 25% of all death penalty trials.

Catley and Claydon (2015) identified 204 UK cases that used neuroscientific evidence
between 2005-2012 and found:
- There is a marked increase in the use of this type of evidence among those accused of
criminal offences.

Neuroscientific evidence (UK)

Catley and Claydon (2015) identified 204 UK cases that used neuroscientific evidence
between 2005-2012 and found:
- There is a marked increase in the use of this type of evidence among those accused of
criminal offences.

Catley and Claydon (2015) identified 204 UK cases that used neuroscientific evidence
between 2005-2012 and found:
- There is a marked increase in the use of this type of evidence among those accused of
criminal offences.
- The slow but steady increasing trend since 2005.

Catley and Claydon (2015) identified 204 UK cases that used neuroscientific evidence
between 2005-2012 and found:
- About 28% related to homicide cases
- 18% of serious violent crimes
- 15% sexual offences

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Catley and Claydon (2015) identified 204 UK cases that used neuroscientific evidence
between 2005-2012 and found:
- Most cases that use this type of evidence were appealed against:
o a conviction (jury’s decision of guilt)
o or a sentence (Court decision of punishment for a convicted person).

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 MAOA-l in Court
After Caspi et al. (2002) study suggesting that MAOA-l in the presence of abuse during
childhood can be considered a risk factor for aggressive behaviour:
 several cases attempted to use MAOA-l as a mitigating factor during the trial:

1. People v. Adams (2014, US) Adams was convicted of killing three gang members in an
unprovoked attack and faced the death penalty.
• A forensic psychologist testified Adams had both the MAOA-l genotype and had been
physically abused as a child; therefore, he had an increased risk of aggressive
behaviour.
• VOTE! Should the Court consider the evidence provided by the defence as mitigating?

2. State v. Driskill (2014, US) Driskill was convicted of the sexual assault and murder of an
elderly couple in their home.
• Defence provided evidence of a history of child abuse and the MAOA-L genotype,
bipolar disorder, intermittent explosive disorder, anxiety, reduced cognitive abilities,
and drug addiction.
• VOTE! Should the Court consider the evidence provided by the defence as mitigating?

3. State v. Bourassa (2012, US), Bourassa murdered an elderly woman in a church

• The expert psychiatrist stated that Bourassa had been severely sexually abused, was
diagnosed with bipolar disorder, and possessed the MAOA-L genotype. He was at
higher risk of impulsive aggression.
• VOTE! Should the Court consider this evidence as mitigating?

MAOA-l in Court Evaluation

 Is this line of research conclusive? Is the non-causal link between MAOA-l and abuse in
childhood and aggressive behaviour strong enough?
 Researchers don’t think so; there are some contrasting findings, and it is still debated in
the literature.

 Many questions still need to be answered.

o “How much” trauma is enough to be considered mitigating?
o What type of trauma? For example, should adverse circumstances be considered
traumatic?
o How do we measure it?

TBI in Court
 Earlier forms of neuroscientific evidence used in the Courtroom
 Evidence presented in the form of:
o CAT (computed axial tomography)
o MRI (magnetic resonance imaging) and fMRI
o EEG (electroencephalography)

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 Used to infer the severity of an injury in civil cases (e.g., incident in the workplace,
vehicle incident).
 Used as a mitigating factor for the conviction in criminal cases:
o TBI is associated with cognitive impairment, anger control, impulsivity, and several
psychological/mental issues.

Early case United States vs Hinckley (1981) Hinckley was charged in a multi-count
indictment with the attempted assassination of the President of the United States, Ronald
Reagan, assault on a federal officer United States Secret Service agent, use of a firearm in the
commission of a federal offence.

 Defence used CAT to prove Hinckley had schizophrenia (mens rea)

 Eventually found not guilty because of insanity.

Florida vs Grady Nelson (2010). Nelson was convicted of first-degree murder after stabbing
his wife over 60 times and raping her intellectually impaired 11 - years old daughter.

 The defence’s expert neuroscientist provided evidence that Nelson had received at least
three TBIs, resulting in a significant abnormality in his left frontal lobe. EEG evidence
was also provided to the Court. This abnormality impacted his ability to control his
behaviour and understand the consequences of his actions.
 The prosecution’s expert neurologist noted that the evidence was not strong enough and
that TBIs rarely caused such a level of impairment.
 VOTE! If you were a juror, would your verdict be guilty or not guilty?

Evaluation
 Scholars argue that providing evidence about genetic predisposition is not dissimilar to
giving evidence about mental disorders.
 both can be used to infer mens rea.
 both provide probabilistic information about the state of mind during the offence.
 two possible issues to account for:
o evidence could be used as a mitigating factor, and the offender could be treated less
harshly than it is proportionate.
o evidence could be used as an aggravating factor, resulting in longer than proportionate
sentences.
o Biological/ neuroscientific evidence in Court is often considered a double-edged sword.

The influence on jurors

 The literature shows that neuroscientific testimony does not appear to have a consistently
mitigating effect on:
o guilty/not guilty decisions (Mowle et al., 2016; Schweitzer et al., 2011),
o or on sentencing (LaDuke et al., 2018; Marshall et al., 2017; Mowle et al., 2016;
Schweitzer et al., 2011).

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 However, neuroscientific testimony may be considered mitigating in certain
circumstances:
o It tends to lead mock jurors to forgo the death penalty.
o In death penalty cases, it tends to be considered mitigating evidence only for a subset of
offenders (e.g., schizophrenic but not psychopathic defendants).

 Saks et al. (2014) investigated the effect of neuroscientific evidence on mock jurors.
o Mock jurors were presented with a criminal case of first-degree murder.
o The defendant's diagnosis is either healthy, schizophrenia, psychopathy,
o Neuroscientific evidence: neurological testimony or neuroimage. A control condition
whereby no diagnostic information or expert evidence was presented.
o Jurors were asked to make judgments relating to (i) sentenced to death, (ii) degree of
responsibility, and (iii) degree of dangerousness.

 Neuroscientific evidence can impact jurors’ judgments, but this effect depends on (i) type
of evidence and (ii) the type of diagnosis.
 For psychopathic defendants, neuroimage evidence reduced slight death sentences and
judgments of responsibility.
 For schizophrenic defendants, both neuroscience testimony only and neuroimage evidence
decreased death sentences and judgments of responsibility.
o Decrease more pronounced if neuroscientific evidence was presented.