Brain Waves Module 4: Neuroscience And The Law
Brain Waves Module 4:Neuroscienceand the lawDecember 2011
RS Policy document 05/11Issued: December 2011 DES2420ISBN: 978-0-85403-932-6 The Royal Society, 2011Requests to reproduce all or part of thisdocument should be submitted to:The Royal SocietyScience Policy Centre6 – 9 Carlton House TerraceLondon SW1Y 5AGT 44 (0)20 7451 2500E science.policy@royalsociety.orgW royalsociety.orgCover image: This diagram of the cerebellum (a structure at the bottom of the brain) shows theamygdala, which plays an important role in reward and emotion processing. The early developmentof the amygdala relative to other brain areas is thought to account for the heightened emotionalresponses and risky behaviour characteristic of adolescence. Image from Anatomy, descriptiveand surgical, Henry Gray, edited by T.Pickering Pick and Robert Howden,1977, New York.
Brain Waves Module 4:Neuroscience and the lawContentsSummaryvWorking Group rms of reference22Key concepts and techniques in neuroscience32.1Linking brain, mind and behaviour32.2Individual differences and the role of genes and the environment32.3Techniques used in neuroscience42.4Some cautionary words on interpreting neuroscientific data53Generic challenges in applying neuroscience to the law113.1The intersection of neuroscience and the law113.2Defining Responsibility11Box 1: A neuroscientific perspective on brain developmentand criminal responsibility133.314The use of neuroscience in courtBox 2: Orbitofrontal tumour and ‘acquired paedophilia’15Box 3: Admissibility of expert scientific evidence16The Royal SocietyBrain Waves 4 I December 2011 I iii
4Specific challenges facing the application ofneuroscience to some key legal 94.5Non-Accidental Head Injury (NAHI)305Recommendations335.1Bridging the gap335.2Training and Education345.3Building applied research capacity346Further reading35iv I December 2011 I Brain Waves 4The Royal Society
SummaryThe human brain is not viewed in the sameway as other organs. The brain holds thekey to mind and behaviour, and so to mostit has a ‘special’ status. The relativelyyoung field of neuroscience is the study ofthe brain and nervous system.Neuroscientists seek to determine howbrain function affects behaviour. The law isconcerned with regulating behaviour, andso it is reasonable to ask whether and if sohow, neuroscience could, or should,inform the law. The Royal Society, the UK’snational academy of science, has soughthere to set out where neuroscience mightoffer insights to the law, and current limitsto its application.Many questions have been asked aboutwhat neuroscience might offer for the law.For instance, might neurosciencefundamentally change concepts of legalresponsibility? Or could aspects of aconvicted person’s brain help to determinewhether they are at an increased risk ofreoffending? Will it ever be possible to usebrain scans to ‘read minds’, for instancewith the aim of determining whether theyare telling the truth, or whether theirmemories are false? It has been suggestedthat ‘for the law, neuroscience changesnothing and everything’1. This report takes adifferent position: that discoveries inneuroscience (or in genetics or psychology)will not completely revolutionise the theoryand practice of the law in the near future;1Greene and Cohen 2004 For the law, neurosciencechanges nothing and everything. PhilosophicalTransactions of the Royal Society B 359,1775–1785.The Royal Societybut there are already some importantpractical implications of recentneuroscientific discoveries, which shouldimpact on the law, and there will certainlybe many more over the next few years.For example, findings from neurosciencemay raise questions over the age ofcriminal responsibility. Although thepotential is at present unclear, it is possiblethat neuroscientific information could beused as part of risk assessments. It is alsopossible that imaging studies may in thenot too distant future provide evidence ofthe nature of pain. This would be relevantto many civil cases, concerned withwhether a claimant’s suffering and pain arereal or exaggerated. In addition,neuroscience may also be used further tostrengthen the diagnosis of ‘Shaken BabySyndrome’ or ‘Non Accidental Head Injury’(NAHI).While there are examples, such as thoseabove, of where neuroscience may provideuseful insights, it is worth sounding a noteof caution: claims that murderers can beidentified by imaging studies of theirbrains, or that there is a gene forpsychopathy or for violent or antisocialbehaviour are completely wide of the mark.If neuroscience is to feed usefully into thelaw, there are a number of challenges to itsuse that must first be overcome. Some ofthese might apply to the intersection ofscience and law more broadly; howeverthis report has focused on neuroscience.The report makes a number ofrecommendations for bridging the gapbetween legal professionals andBrain Waves 4 I December 2011 I v
neuroscientists to better communicaterelevant findings; for training andeducation; and for building appliedresearch capacity:Recommendation 1: An internationalmeeting should take place every threeyears to bring together those workingacross the legal system with experts inneuroscience and related disciplines. Theaim of this meeting should be to discussthe latest advances in areas at theintersection of neuroscience and the law toidentify practical applications that need tobe addressed.Recommendation 2: The systems used bylegal professionals to identify, access andassess the quality of expertise in specificscientific areas should be reviewed by thejudiciary and the Bar Council to ensure thelatest advice is made available. This shouldbe carried out in consultation with learnedsocieties such as the British NeuroscienceAssociation, and other specialist societiesas appropriate.Recommendation 3: University lawdegrees should incorporate an introductionto the basic principles of how science isconducted and to key areas of sciencesuch as neuroscience and behaviouralvi I December 2011 I Brain Waves 4genetics, to strengthen lawyers’ capacityto assess the quality of new evidence.Conversely, undergraduate courses inneuroscience should include the societalapplications of the science.Recommendation 4: Relevant trainingshould be made available where necessaryfor judges, lawyers and probation officers.This should count towards ContinualProfessional Development (CPD)requirements for lawyers, and for judgesmight be administered through the JudicialCollege’s programme of seminars.Recommendation 5: Further research isneeded on areas including: The National Institute for HealthResearch (NIHR) should encourageneuropathology studies to characteriseNon-Accidental Head Injury (NAHI)and distinguish it from accidental ornatural causes. The Economic and Social ResearchCouncil (ESRC) should encouragestudies into the relative efficacy ofdifferent models of risk assessment inthe context of probation, and apossible role for neuroscience to beused in combination with existingapproaches.The Royal Society
Working Group MembershipThe members of the Working Group involved in producing this report were as follows:ChairProfessor NicholasMackintosh FRSEmeritus Professor, Department of ExperimentalPsychology, University of CambridgeMembersProfessor Alan Baddeley FRSDepartment of Psychology, University of YorkProfessor Roger BrownswordSchool of Law, King’s College LondonDr Lisa ClaydonReader in Law, Bristol Law School, University of theWest of EnglandProfessor John HarrisDirector, Institute for Science, Ethics and Innovation(iSEI), School of Law, University of ManchesterProfessor Geraint ReesDirector, Institute of Cognitive Neuroscience,University College LondonProfessor Nikolas RoseDirector, BIOS Research Centre for the study ofBioscience, Biomedicine, Biotechnology and SocietySir Michael Rutter FRSProfessor of Developmental Psychopathology, Instituteof Psychiatry, King’s College LondonProfessor Wolf SingerDirector, Department of Neurophysiology Max PlanckInstitute for Brain Research, GermanyRoyal Society Science Policy Centre TeamSarah MeePolicy AdviserRapela ZamanSenior Policy AdviserVictoria Cambridge, RiamKanso, Beth ParkinScience Policy Centre InternsThe Royal SocietyBrain Waves 4 I December 2011 I vii
This report has been reviewed by an independent panel of experts and also approvedby the Council of the Royal Society. The Royal Society gratefully acknowledges thecontribution of the reviewers. The review panel were not asked to endorse theconclusions or recommendations of the report, nor did they see the final draft ofthe report before its release.Review PanelDame Jean Thomas DBEFRS (Chair)Biological Secretary and Vice President, The RoyalSociety.Professor Tim Bliss FRSDivision of Neurophysiology, National Institute forMedical Research.Professor Barry Everitt FRSDepartment of Experimental Psychology,University of Cambridge.Professor Karl Friston FRSScientific Director, Wellcome Trust Centre forNeuroimaging, University College London.Joanna Glynn QCOne Crown Office Row.Professor Walter SinnottArmstrongDepartment of Philosophy, Duke University.viii I December 2011 I Brain Waves 4The Royal Society
AcknowledgementsWe would like to thank all those consultedduring the course of this study, includingthe neuroscientists, policy makers,barristers and judges who providedfeedback at various stages, and those whoattended the workshop, The brain and thelaw, held in partnership with the Arts andThe Royal SocietyHumanities Research Council (AHRC) on2nd June 2011. We are also grateful tothe Sackler family for their generousfunding of the 2nd Royal Society-NationalAcademy of Sciences Sackler Forum onthe subject of neuroscience and the law,held on 2nd – 3rd March 2011.Brain Waves 4 I December 2011 I ix
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1 IntroductionUnderstanding how the brain works givesus an insight into the mental processesthat underpin human behaviour. As the lawis primarily concerned with regulatingpeople’s behaviour, it follows thatknowledge about how the brain worksmay one day be of some relevance tothe law.2Neuroscience is the empirical study of thebrain and connected nervous system, andcontemporary neuroscience seeks toexplain how human behaviour arises frombrain activity. This is not an easy task. Thehuman brain contains around onehundred billion (1011) nerve cells orneurons and one hundred trillion (1014)synapses or connections between nervecells. But, over the past thirty years,neuroscientists have made remarkableprogress. Neuroscience has shed light onhow the brain and certain mentalprocesses can work, and research isshowing just how complex the linksbetween brain activity, mental processesand behaviour really are.For example, neuroscience has showncorrelations between patterns of activity inthe human brain, mental functions (suchas thinking, feeling, sensing, attention,memory and consciousness) and particulartypes of behaviour. Research has shownthat both genes and the environment canaffect mental functions, patterns of brainactivity and behaviour. It is known thatinteractions between genes andenvironment affect changes in the brain3and that the brain continues to developbeyond adolescence and into adulthood4.But it is also important to recognise thatthere is no direct mapping of mentalfunction to specific areas of the brain5, andthat there are huge differences betweenindividuals6.The application of findings such as these(and many others) to the law may not beas simple as in other disciplines.7 The remitof this report is to discuss the relevanceand utility of these findings fromneuroscience to the law. In what follows, arelatively broad view of ‘neuroscience’ istaken, to include some discussion ofbehavioural genetics and psychology. Atpresent there may be relatively littleneuroscience that can be directly applied3452In the United States, the MacArthur Foundationhas funded a major programme of work onneuroscience and the law, and at least oneuniversity now runs a graduate seminar course on‘Neurolaw’. The French government has also beenfunding a programme on ‘Neuroscience and PublicPolicy’ since 2009, and the European ScienceFoundation funds a European Neuroscience andSociety Network.The Royal Society67Meyer-Lindenberg and Weinberger 2006Intermediate phenotypes and genetic mechanismsof psychiatric disorders. Nature ReviewsNeuroscience 7, 818–827.Gogtay et al. 2004 Dynamic mapping of humancortical development during childhood through earlyadulthood. Proceedings of the National Academyof Sciences 101, 8174–8179.Poldrack 2011 Mapping Mental Function to BrainStructure: How Can Cognitive NeuroimagingSucceed? Perspectives on Psychological Science5, 753–761.Mohr and Nagel 2009 Variability in brain activity asan individual difference measure in neuroscience.The Journal of Neuroscience 30, 7755–7757.For example, in the health sector there are manyprofessionals whose job it is to ensure newscientific breakthroughs find their way into policyand society.Brain Waves 4 I December 2011 I 1
to the law, but this will surely change overthe next ten to twenty years. This reportalso takes a broad view of ‘the law’(although perhaps with more emphasis oncriminal than civil law), and has attemptedto consider not only what happens in courttrials, but also, for instance, what happensin sentencing and probation. It has notbeen possible within the scope of thisreport to discuss every possible interactionof neuroscience and law. Instead, somekey areas of debate are highlighted, withexamples that refer to the legal system ofEngland and Wales, except where statedotherwise.to the quality of decision-making inlegal proceedings (see Chapter 2). Discuss the capabilities and limits ofneuroscience and neurotechnologiesas they relate to the law or the legalprocess (see Chapter 3). Provide an overview of which areas ofneuroscience and neurotechnologiesmight impact on decision-making inthe law (see Chapter 4), including: Risk Memory, including reliability ofwitness testimony Deception1.1 Terms of reference PainThe terms of reference for this studywere to: Neuropathology Provide an introduction to thequestions raised around theintersection of neuroscience and law,and the link between the brain, mindstates and behaviour (see Chapter 1). Provide an assessment of the extent towhich neurotechnologies might beable, now or in the future, to contribute2 I December 2011 I Brain Waves 4 Discuss how the use of thesetechnologies in legal proceedingsmight best be governed to allow newinsights to be used where appropriatewhilst minimising inappropriate use(see Chapter 5)This is one of four modules in the RoyalSociety Brain Waves series onneuroscience and society.The Royal Society
2 Key concepts and techniques inneuroscienceThis chapter introduces some of thetechniques and key working conceptsadopted by neuroscience. It aims to drawthe reader’s attention to the opportunities,but also to the limitations and challengesinvolved in drawing conclusions fromneuroscientific studies, and the prospectsfor developing future applications. For amuch broader discussion refer to Module1 of the Brain Waves study.2.1 Linking brain, mind andbehaviourAs investigation of the relationshipbetween brain and mind has developed,researchers have been able to describemental processes that relate nerve cells orneural circuits to the behaviour ofindividuals. Many of these mentalprocesses such as thinking, feeling,sensing, attention, memory, andconsciousness are regularly used incommon language. But although mentalprocesses are helpful in explaining therelationship between brain and mind, themappings from brain activity to mentalprocess and from mental process tobahaviour, remain complex and poorlyunderstood.Moreover most experiments thatinvestigate the relationship between brainactivity and behaviour necessarily usesimplified laboratory situations.Generalising findings from theseexperiments to complex ‘real world’The Royal Societysituations is difficult and uncertain. Anappreciation of the limits of neuroscientifictechniques can inform the assessment ofhow useful these findings can be, andimportantly, highlight areas for productiveresearch.2.2 Individual differences and therole of genes and the environmentThe brain is constantly changing. There isvariation been individuals in the structureand function of the brain and the mentalprocesses that underpin behaviour. Indeed,everyday experience shows that individualsrespond very differently to specificsituations. Why is that? Evidence suggeststhat both genes and the environment, andhence people’s unique, individual, lifelongexperiences, play a role in modulatingbehaviour8.However genetic influences on the brainare not yet well understood. Geneticpredispositions may have an effect onbehaviour, but examples where a simplegenetic defect alone can act to affectbehaviour are rare. An example from thefield of health would be the gene mutationfor Huntington’s disease9. In the majority89Rutter 2006 Genes and behaviour. Nature-nurtureinter-play explained. Oxford: Blackwell.Huntington’s disease is a neurological disorderresulting in the degeneration of cells in the brain.The symptoms of impaired memory, personalitychange and progressive cognitive decline are theresult of a genetic mutation which causes thesufferer to produce an abnormal version of theprotein Huntingtin.Brain Waves 4 I December 2011 I 3
of cases, multiple genes affect behaviour,and their individual effects would be verysmall10. In addition, the physical andbehavioural attributes linked to specificgenes are affected by a range ofenvironmental factors, including diet,exposure to toxins and socialinteractions11.2.3 Techniques used inneuroscienceThe use of evidence from neuroscience inthe courts is increasing (as shown inFigure 1). This chapter focuses onneuroimaging as an example of howneuroscience and neurotechnologieshave been used to infer informationFigure 1. Distribution by Year of Defendant-Based Behavioural Science Opinions 2004–2009. This chart shows the number of cases by year, from a sample of 722 from 2005–2009in the USA, in which neurological or behavioral genetics evidence is introduced in criminalcases on behalf of a criminal defendant. Source: Professor Nita Farahany database, 2011.Personal communication.250Number of 010 Bishop 2009 Genes, cognition and communication:insights from neurodevelopmental disorders. Annalsof the New York Academy of Science 1156, 1–18.11 Rutter et al. 1999 Integrating nature and nurture:Implications of person-environment correlations andinteractions for developmental psychopathology.Development and Psychopathology 92, 335–364;Van Praag et al. 2000 Neural consequences ofenvironmental enrichment. Nature ReviewsNeuroscience 1, 191–198; Champagne and Curley2005 How social experiences influence the brain.Current Opinion in Neurobiology 15, 704–709.4 I December 2011 I Brain Waves 42007Yearabout an individual’s mental state.However, there are many otherneuroscientific techniques that couldalso be relevant or useful, someof which are described in moredetail in Brain Waves Module 1(Section 2.1).The Royal Society
The most common technique formeasuring human brain structure andactivity is magnetic resonance imaging(MRI). While structural MRI producespictures of brain anatomy, more recentlyfunctional MRI (fMRI) has been developedthat can produce dynamic images thatreflect patterns of brain activity. Bothstructural and functional MRI have verygood spatial resolution12. But theability of functional MRI to resolve thetiming of brain activity is hampered by itsreliance on the sluggish responses ofblood vessels to changes in bloodoxygenation.In contrast to the good spatial and poortemporal resolution of fMRI,electroencephalography (EEG) andmagnetoencephalography (MEG) measurethe tiny
The human brain is not viewed in the same way as other organs. The brain holds the key to mind and behaviour, and so to most it has a ‘special’ status. The relatively young fi eld of neuroscience is the study of the brain and nervous system. Neuroscientists seek to determine how brain function affects behaviour. The law is
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The human brain is not viewed in the same way as other organs. The brain holds the key to mind and behaviour, and so to most it has a 'special' status. The relatively young fi eld of neuroscience is the study of the brain and nervous system. Neuroscientists seek to determine how brain function affects behaviour. The law is
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