Richard R. Magnus
Chairman, Bioethics Advisory Committee of Singapore
Neuroscience and the law intersects in various core constructs of the legal process. It was less than a decade ago that the combination of neuroscience with law first began to be mooted in academic circles and in writings. Among these is the 2004 Report of the American Association for the Advancement of Science and the Dana Foundation entitled “Neuroscience and the Law: Brain, Mind and the Scales of Justice”.1
How will advances in neuroscientific methods for predicting behavior impact the legal system and how will our society use these advances? What would neuroscience-based lie detection mean for witnesses testifying in court? How might neuroscientific knowledge put people at risk for discrimination in schools, the workplace, and elsewhere? Are there benefits or risks to justice and society from enhancing or modifying one's brain through pharmacological or other technologies? What roles will the legal system play in the societal debate over human enhancement?
The core constructs of the law referred to in this paper include: criminal and civil responsibility, mens rea (or state of mind in criminal proceedings), competency, free will, the genesis of violent behavior, end of life decisions, right to silence, the legal status of religion, judicial reasoning, evidence and fact finding. This list is not exhaustive because neuroscience is evolving. Later on in this paper, two legal cases are discussed to illustrate some issues of concern.
Common law jurisdictions have seen the reception in civil and criminal trials of structural neuroimaging studies such as CT scans and diagnostic MRI scans: cases determining the presence of brain injury due to trauma, declaration of brain death due to pathology or injury; diagnosis of brain pathology, testamentary capacity and dementia as well as mental illness. In Singapore, the use of these neuroscience techniques was the subject of the cases Dr James Khoo and anor v Gunapathy d/o Muniandy and another2 and Pang Koi Fa v Lim Djoe Phing.3
Brain death was also central to the 1998 amendment to Singapore’s Interpretation Act.4 Under Section 2A of the legislation, the statutory criteria for “death” have been defined as including the total and irreversible cessation of all functions of the brain of the person. The criteria for determining irreversible cessation of all functions of the brain are set out in the Interpretation (Determination and Certification of Death) Regulations 1998.5 Improvements in understanding and monitoring brain function may well influence definitions of brain death by focussing attention on higher cerebral function and when speech, cognition, learning, consciousness, and other defining human characteristics are irretrievably lost. One constraint on the impact of neuroscience in this area is the extent to which substantial work has already gone into defining brain death, with input from many groups and with substantial moral and religious literature to draw on in conceptualising and defining the state of being "brain dead". The current system balances important social, legal, ethical, and moral concerns; there is a sense of caution about upsetting the balance.
There is now emerging neuroscientific techniques like EEG (electroencephalography), fMri (functional MRI) and brain finger printing. Generally these are neuro-imaging techniques which visualize the brain and used as diagnostic tools for diagnosing disease, assessing brain health, examining brain functions, and understanding how activities may impact the brain. For example, brain scans can be used to assess structural brain differences; or study the biochemistry of the brain or detect activity in particular brain areas, through measuring blood flow or metabolism.6 In addition, these techniques can be used for detecting deception.7 So one main area of attention emerges: the relevance, admissibility, causation, and probative weight of neuroscience-based findings (from lie detection) in law. The two cases that follows illustrate a number of challenges that neuroscience has posed to the administration of criminal justice.
The Peter Braunstein Case
In 2007 in the US, Peter Braunstein was charged with kidnapping, sexual abuse, burglary, robbery, and arson for a series of actions committed on Halloween in 2005.8 PET (positron emission topography) scans of the accused’s brain were introduced by the defence in an attempt to show that he was unable to plan the sexual assault of a former co-worker. PET is a form of molecular imaging, in which a metabolically active raditracer is injected into the bloodstream in order to map functional processes in the brain. It is useful for studying the metabolic and neurochemical mechanism associated with cognitive, affective and behavioral processing.
The accused did not claim insanity as we understand it within the McNaughten Rule, or that he was suffering from a defect of reason making him unable to appreciate the wrongfulness of his conduct. However, he claimed that a brain abnormality made him incapable of forming an intention or plan to commit the crime. His defence was that he lacked the necessary mens rea to be criminally responsible and culpable for it. The PET scan were introduced as evidence that the accused had dysfunctional frontal lobes, the executive part of the brain regulating personality, planning, decision-making, and moral judgment. A psychiatrist testifying for the defence stated,9 “If I saw this scan without knowing anything else…I would say this person has changes in personality, will have difficulty planning, making executive judgments, and thinking ahead”. Under cross-examination, the psychiatrist responded affirmatively to the question, “Was the defendant completely unable to plan?”
Presumably, the PET scans were behind the change in the psychiatrist’s assessment from the weaker claim that the defendant had ‘difficulty planning’ to the stronger claim that he was ‘completely unable to plan’. But this distinction points to one of the principal limitations of functional brain imaging. Except perhaps in cases of severe brain dysfunction, PET or fMRI scans of the prefrontal cortex alone cannot determine: (1) whether an individual lacked the capacity to plan a crime; (2) whether he had less than full capacity to plan and thus had difficulty in forming and executing his intention; or (3) whether he had full capacity and executed his intention straightaway.
This threefold distinction is more pertinent to the issue of impulse control. In the present case, neither the stronger claim that the defendant lacked the capacity to plan the assault, nor the weaker claim that he had difficulty planning it, withstood scrutiny. The elaborate scheme he devised to assault the victim, which consisted in not one but a series of actions, and the duration of the assault, clearly show that he had full capacity to plan and execute his criminal behavior. The defendant dressed as a firefighter and set off a smoke bomb in the lobby of his victim’s apartment building. To gain access to her apartment, Braunstein knocked on her door and claimed that he had come to inspect the smoke damage. After she let him into her apartment, he used chloroform to render her unconscious and then committed the sexual assault over a period of 13 hours. His behavior demonstrated that any brain abnormality displayed on the PET scans did not interfere with his cognitive capacity to plan and act. It played no role in his behavior and thus provided no grounds for reversing the charge and conviction that his criminal course of action was intentional.
Can neuroscience techniques be used to claim legal sanity though?t
The Andrea Yates Case
Just before 10:00 a.m. on June 20, 2001, a uniformed police officer was dispatched to do what he thought was a routine welfare check at a home in Houston, Texas. When the officer met Andrea Yates at the door, she immediately told him, “I just killed my kids.” When Yates was later asked why she drowned her five children, she claimed she had to in order to save them from hell. More than 10 years after Andrea Yates killed her five children, the case remains hotly debated because of the critical legal questions it and other cases involving criminal insanity raise. The police would learn that Yates had been suffering from long-term post-partum orbpost natal depression and psychosis.
At her first trial, Yates was convicted of capital murder. During Andrea Yates’ first trial, the jury found her guilty of capital murder after hearing she had waited until her husband left for work to commit the crime, kenneled their dog and called the police — behavior which suggests she knew her acts were wrong. After her successful appeal, however, a second court found that Yates’ post-partum psychosis rendered her incapable of distinguishing between right and wrong when she murdered her children.10 She was then civilly committed to a high-security treatment facility — the usual consequence of a successful insanity-based acquittal.
What role did Yates’ severe post-partum psychosis play in the crime? Was she criminally responsible for the murders of her children given her mental illness? And, more broadly, how can we as a society successfully balance protecting our citizens from crimes while still protecting those with debilitating mental disorders? These are questions that go far beyond this one crime — and that many argue will be strongly influenced by future neuroscientific studies.
There is certainly a debate about the relationship between law and neuroscience. Lawyers and neuroscientists are cautious about how brain science is used and presented, as there is a serious risk of misinterpretation.11 It is in the interest of both fields that the science must be presented, used and discussed in a realistic and accurate way; one that reflects both the limitations and the potentials of the science. In turn, this process will enable the legal community to appreciate better what neuroscience can and cannot tell us, and to what uses neuroscience can be put into place in the service of the law and society.
Dominique Church points to some scholarship by legal and scientific scholars of this developing field of neurolaw.12 He notes that scholars argue that the legal community is reluctant to expand its focus past the social sciences, and as a result legal thinkers have generally ignored an array of interdisciplinary approaches that are rapidly changing the way we understand how the mind works and what it means to be human. This reluctance impedes what some hold to be the law's basic function: the consumption and application of knowledge from other disciplines.
When the process of scientific consumption and application does occur, however, it is fraught with misunderstamdings and improper uses of science by judges, legislators and other policy-makers, a reality that underscores the necessity of proper communication between the disciplines. Even a proper understanding of the science, however, does not mean that the science will automatically reshape criminal responsibility or the legal subject more generally.13 Neuroscience will see growth in our jurisdiction as well as in developed jurisdictions. The optimal time to study this area and its implications is now, when the science is rapidly evolving within a conducive socio-political environment.
About the Authors
Judge (ret) Richard R Magnus, PJG, PPA(E) (L), (JP), is the Chairman of the Bioethics Advisory Committee (BAC) of Singapore. His recommendations on the ethical, legal and social issues relating to Stem Cell Research were accepted by the BAC and the Singapore Government; and relevant legislation ensued accordingly. He is also the first Singaporean to serve in the UNESCO's International Bioethics Committee. A lawyer by training, he is an Alumnus of the Harvard Business School and the John F Kennedy School of Government, and has also edited five law books for legal practitioners.
Judge (ret) Magnus holds several public positions as Chairman Casino Regulatory Authority, Chairman Public Transport Council, Chairman Public Guardian Board, Chairman Political Films Consultative Committee and Member of the Public Service Commission. He is also an Alumnus of the National Agenda Council, World Economic Forum. Judge (ret) Magnus was Senior (now termed Chief) District Judge, and he was awarded by the State the Meritorious Service Award for his exceptional public service, as well as the Outstanding Volunteer award by Ministry of Social and Family Development. He is Singapore’s First Representative to the ASEAN Inter-Governmental Commission on Human Rights, an Alumni Member of the Network of Global Agenda Councils, World Economic Forum, a Member of the Public Service Commission and a Member of the National Transplant Ethics Panel of Lay Persons. In the private sector, Judge (ret) Magnus sits on the Board of Directors of Temasek Cares PLC, CapitalMall Trust and the Changi Airport Group, Honour ( Singapore ) Ltd , Allgrace Investment Company Ltd and Chairman if the Management Board of Capital.
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