Neurotech, Cognition, and Justice: Can Neurolaw Bring Fairness to the Courts?

Contributed by Annaëlle Barreau

Introduction

Mental health is often stigmatized in society. That stigmatization is reflected in courts, namely when defendants invoke non-responsibility due to mental illness. While the law deals with values of rationality, mental illness touches upon subjective experiences of personhood, rather than the inherent capacity to behave rationally. Additionally, race plays a role in who successfully displays their mental health concerns versus who gets further stigmatized. Evidence shows that trainings in cultural sensitivity and implicit bias training fail to provide adequate results. When analyzing such interventions, it seems that their design was based on a motivation to limit cooperate risk and liability rather than promote equality. We may want to turn ourselves to scientific evidence instead. Is it possible that the use of neuroimaging techniques by conferring a higher level of objectivity might aid the reduction of biases in the court system? Neurotech may appease the fears of the public towards individuals emulating mental illness, and thus reducing stigma of mental health evidence in courts.

Background: Quick Facts on Neuroimaging

The mapping of brain functioning finds its origin in phrenology over two centuries ago where bumps on the skull were measured and used to assess mental functioning and traits. Since then, several brain imaging techniques have emerged, with distinct strengths and limitations with regards to different factors, namely, the degree of invasiveness, the spatial resolution, the temporal resolutions, and the tasks that can be executed. Brain imaging allows experts to see whether one’s brain is structurally and/or functionally typical. The use of neuroscience in legal proceedings dates back to the early twentieth century and has been rapidly increasing in the past few decades. In mock trials, where the defendant has been diagnosed with schizophrenia, there was a mitigating effect of the use of neuroscientific expert evidence on the jury’s death sentence verdict. People are thus more lenient in sentencing individuals who are mentally ill. When there is neuroscientific support, it may also render objective the subjective which confers a wide range of benefits.


The use of neuroscience in legal proceedings dates back to the early twentieth century and has been rapidly increasing in the past few decades. || (Source: pixabay // geralt)

Cognition and the Law

Jennifer A. Chandler, a legal scholar and law professor at the University of Ottawa, argues that neurological approaches to the law affect legal rules and practices which will be enhanced with the sophistication of biological psychiatric and neuroscientific techniques. The subjective mental states of individuals are often of great relevance to the courts and legal questions. Subjective mental states, like pain, memories, and sexual desires remain private. However, with the advent of functional magnetic resonance imaging (fMRI), a high spatial resolution brain imaging test which works by detecting patterns of blood oxygenation as a blood flow proxy, reflecting the activation of different parts of the brain, render these once invisible mental experiences, accessible to outsiders through patterns of brain activation.

In Canada, for forensic risk assessment of sexual offenders the use of phallometry, a penile measurement detecting sexual arousal, is employed. Research demonstrates that fMRI would be able to distinguish between different types of sexual interests and detect those that are indictable if enacted upon. Additionally, the detection of pain afforded by fMRI brings a whole range of possibility in claims of chronic pain, physical injuries, disability insurance claims.

Further, electroencephalography (EEG) and fMRI allow under controlled laboratory conditions to detect true memories from false ones and deception. With these techniques refining their accuracy, we may be close to a scientifically viable alternative to polygraphs. Thus, we have the potential to shift away from oral evidence and perhaps let the brain speak. We may lighten the burden to prove the veracity of one’s suffering or the falsity of a third party’s claims. fMRI scans are distinguishable from polygraphs that measure autonomic stress responses such as fluctuations in pulse, breathing, and heart rate.

Neuroscience and the Private Law

Neurotech as a means to provide fairer sentencing and assessing accused’s mental capabilities in criminal legal proceedings has long been scrutinized. However, neuropsychological analysis is not limited to criminal justice, but is also relevant in civil legal matters. The practice of private law is centered on the idea of a reasonable human. However, cognitive science forces us to rethink humans as always behaving at the peak of their mental capabilities. Contract and tort law focus on concepts such as “meeting of minds,” “free will,” or “expression of intention”, and in a cognitively driven marketplace, the understanding of human psychology is critical for jurists to grasp within the ever-changing landscape of private law.

When looking at Anglo-American and international law, we see that neuroscientist insight has already been made useful in civil law manners of liability law, health law, family law, and contract law. In torts, legal system neuroimaging can provide objective insight into personal injury claims related to subjective experiences of pain. In many cases of accidents for instance, victims who suffer from post-whiplash syndrome still experience pain several years after the accident. Although this pain is often difficult to prove when an MRI scan fails to identify any damage, neuroscience technologies can corroborate the pain of those who are unable to verbally communicate it, such as unconscious individuals or infants. Neuroscience challenges tort doctrine and policy by rendering more transparency when it comes to granting damages. It gives access to invisible injuries, thus combatting the skepticism towards many victims suffering PTSD or other forms of trauma and upholding mental well-being as a value as important as physical well-being. In civil proceedings, in Canadian courts, there is increased receptivity to the admission of neuroscience with imaging being used as a to determine damages, with potential to affirm exempting conditions from negligence.Neuroscience has the potential of shifting our understanding of reasonableness standards and exempting certain individuals from these standards, thus narrowing the potential of establishing fault. A dilemma is raised to the already existing struggles of balance in tortious compensation, where treatment of mentally ill individuals and equity is a tricky one. In fact, the equitable treatment of a mentally ill individuals causing harm can mean the inequitable treatment of a victim not being able to seek compensation.

What about Human Rights?

The benefits seen in torts can extend to human rights concerns. While still bourgeoning, there is tremendous potential, for neurolaw to grant justice to individuals whose pain is traditionally unreported, such as marginalized communities and victims of abuse. Neuroimaging will allow victims’ testimonies that are usually seen as insufficient in cases of emotional suffering, PTSD, mild traumatic injuries, and toxic exposure, to be visible and to some extent quantifiable to judicial decision makers.

The Intersection of Racism and Mental Health Stigma in Courts

Members of racialized communities often have more difficulty being granted mental health diversion. Jurors are less likely to accept an NGRI defense for Black defendants compared to their white counterparts. Evidence shows prejudice along sex and race for according the plea of mental “insanity”. Successful acquitters under NGRI are overwhelming older, white, well-educated defendants, who are also more likely to have been diagnosed with schizophrenia. The use of neuroscience to assess brain functioning further objectively, will narrow the space for systemic biases.   

In Canada

While Canadian courts are considering many types of neuroscientific evidence, the use of cutting-edge techniques like fMRI have yet to enter our justice system. Rare instances where innovative brain imaging is mentioned in cases, it often does not favour the party invoking it. In Bialkowski v Banfield (2011) which involved a brain injury claim, the court held that while qEEG evidence may be admissible in appropriate cases, in this case, the plaintiff’s report did not pass the four-step test of reliability for novel scientific evidence as established in R v Mohan. Currently, the use of neuroscience in Canada is common, but reserved mainly for assessing brain damage following prenatal exposure to alcohol, neurophysiological testing, and traumatic brain injuries.

In Carter v Canada and the passing of Bill C-14 by Parliament, mature minors were not granted access to medical assistance in dying.  Neuroimaging is relevant in this case, as it is mostly MRIs which can demonstrate critical differences between young adult and older adult brains. The prefrontal cortex, which governs several executive brain functions and behavioural regulation only completes its maturation at 25 years of age. This could indirectly address the issue of adultification of Black youth, by which they tend to be treated more harshly than their non-Black counterparts.

Limits of Neuroimaging

There remain several issues neuroimaging cannot comprehensively address in judicial proceedings and pragmatic concerns. Brain imaging is significantly more costly than traditional scientific evidence. Importantly, while the neuroimaging is capable of showing sign of abnormal activity on some level of causal information, they do not provide causal certainty.

Just like polygraphs, neuroimaging is flawed. For instance, it is possible for one to remember something while the fMRI suggests that it is a false memory. Therefore, although it’s an objective measure, it is subject to error.

This almost intimate access to people’s private thoughts increasingly raises questions of neuroprivacy and ethics.

It has been argued that neurotech has the potential of violating many Charter provisions in Canada. For instance, s. 13 of the Charter protects against self-incrimination. If neural firings show deception, the person arguably, has self-incriminated, thus violating their s. 13 Charter right and rendering the neuroimage inadmissible as evidence and antithetical.

Some have advanced that colourful brain imaging reports may be accepted uncritically and weighted disproportionally, however it seems that the seductive powers of brain imaging are now fading.

Human interpretation is fundamental in the legal system, and science can never overtake it, rather simply inform and guide jurist’s judgements. Human elements of morality are and will remain embedded in the law and cultural norms making it so neuroscience will not be capable of independently answering ultimate legal questions culpability.


There remain several issues neuroimaging cannot comprehensively address in judicial proceedings and pragmatic concerns. || (Source: pixabay // kalhh)

Conclusion

The rendition of once intangible harms into colourful brain data is a powerful tool to add to victim testimonies. Neuroscience provides insight in human behaviour which can afford us with more accurate policymaking tools. Many neuro and cognitive scientists are steadily shifting and even questioning the fundamental concept of freewill, on which rests the legitimacy of our justice system. In fact, when using a disease model of addiction, one can see the biological forces in motivation, thus discrediting the veneration of free-decision making seen in society. While it is more than reasonable to doubt the end of our normative understanding of human agency and deterrent aspect on which punishment lies, neuroscience is establishing itself in international jurisprudence and challenges the status quo across fundamental principles of the legal spectrum.

Like any other tool, neurotech confers advantages and benefits. But when used correctly and within ethical boundaries, it can provide relief to victims, give a voice to those who would otherwise be silenced and objectively enable us to see the thoughts of those who are doubted – thus aiding us in bringing fairness to the courtroom.

Annaëlle Barreau is a Junior Online Editor with the McGill Journal of Law and Health. She is currently in her first year of the BCL/JD program at McGill University’s Faculty of Law. Prior to starting law school, she obtained a Bachelor of Psychology and Sociology from McGill University.