Monday, March 19, 2007

The Mind, Brain, Responsibility, and Neurolaw

Thanks Idealawg for NYTimes HT: The Brain on the Stand.

Functional brain imaging studies have shaken the legal justice system, but have the conclusions gone to far? Examples cited in Rosen's article include the case of serial killer Bobby Joe Long whose legal defense used his PET scan results, and the Roper v Simmons decision in which Supreme Court abolished the juvenile death penalty because "adolescent brains are not fully developed."

But as Stephanie West Allen at Idealawg points out, "Curious omissions from the article were the phenomena of neuroplasticity and self-directed neuroplasticity. Rosen described the brain as if it is static and unchanging, as if we are stuck with the brain we have."

Great point. Our brains are not static and unchanging, and differences in brain functioning do not indicate definite disease or the impossibility of moral self-control. Brain imaging studies may be persuasive to a science-naive jury, but they also have a high potential for abuse. From Joshua D. Greene (author of Neural Basis of Cognitive Conflict and Control in Moral Judgment): "To a neuroscientist, you are your brain; nothing causes your behavior other than the operations of your brain...If that's right, it radically changes the way we think about the law." Can your scan absolve you of guilt?

The misuse or misinterpretation of fMRI studies often comes form its presentation as a soundbyte or "visualbyte" - rather than within the context of the appreciation of wide variations that exist among individual subjects, practical limitations of fMRI experimental design, and legitimate differences in interpretation that can be applied to objective scientific data. By its nature, functional brain imaging is better at determining associations than causes, there are many unknowns about differences in brain structures and behavior. The assumptions about biology and blameworthiness need to be considered with care.

From a recent AJP Letter to the Editor by Mossman and Morse: "It is the "fundamental psycholegal error" to suppose that biology or any other type of causation precludes blameworthiness for harmful actions if the behavior reflects choices that might be influenced by reason, including better recognition of and attention to long-term consequences. The mind-brain problem is ferociously complex. But when we ascribe responsibility for behavior, the key factor—both in morality and law—is not causation, but whether the behavior reflects a rational process that might be influenced by foreseeable outcomes and consequences."

Mind-Brain Dualism in Psychiatric Reasoning
Functional magnetic resonance imaging - Wikipedia

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