Post No.: 0770
Furrywisepuppy says:
Present lie detector systems are nowhere near 100% accurate, yet governments and employers use them quite regularly to screen for candour or malfeasance. But will advances in neuroscience ever be able to unequivocally answer questions like knowing whether someone is telling the truth or lying? Neuroscience may one day help criminal law become more just and efficient.
Functional magnetic resonance imaging (fMRI) machines are being heralded by some as the answer to improving lie detection, by assessing a subject’s brain responses in response to questioning. The technology could also help when it comes to assessing whether someone is accurately remembering or really feeling what they claim to be remembering or feeling, like pain from a claim of whiplash after a vehicle accident.
But others worry that juries might mistake the reliability of such data i.e. it’s still not 100% reliable. Such evidence could ‘wow’ a jury and distort proceedings. So should a jury be allowed to evaluate such evidence or should that be limited to a judge?
When fMRI scanners first came onto the scene about a couple of decades ago, scientists thought that what we’d learn about the brain and behaviour would revolutionise criminal law. But it hasn’t quite. This kind of echoes when people started decoding the human genome and the early hope, also starting from about a couple of decades ago, of being able to easily cure all genetic diseases (albeit that decoded genome did mostly come from only one person thus didn’t capture the diversity of humans). Technological hype is common and widespread in many areas. Although some think that it’s still only early days with these kinds of technologies.
We don’t have sufficient knowledge of exactly how the brain works. We don’t know exactly which parts of the brain are responsible for functions such as furry self-control. Imaging is expensive and the research studies we’re drawing conclusions from are based on small samples of participants who might not represent every group in the general population; including violent criminals. There’s insufficient knowledge about how diseases, like schizophrenia, show up on brain scans. Neuroscientific evidence has not quite become routine and there are questions concerning its admissibility in court – this is a general requirement of the law since we cannot convict people on the basis of ‘speculative’ technologies. Will people eventually learn techniques to potentially fool such tests like they can with present polygraph systems? How will we safeguard against the misuse of imaging technologies? There are also conceptual reasons against using neuroscientific data in law…
Some think that being able to reductively understand the brain as essentially a machine and that free will is an illusion would completely undermine traditional notions of criminal responsibility. Perhaps cognitive, affective and social neuroscience, or behavioural neuroscience, will demonstrate that people cannot really control themselves as well as we believe, and show that action is more automatic, thoughtless and non-rational than we perceive? If so, no one would really be at fault for their epiphenomenal thoughts or actions.
Despite making great strides in neuroscience – most of what we’ve learnt so far hasn’t transformed legal doctrine in the slightest and has had little influence on practice except in death penalty proceedings. The most basic conceptual problem is that we still don’t really know how the brain enables the mind and action despite knowing that it evidently does (because if someone’s brain is dead, they’ll have no mind or mental states and will not act). And it’s unknown whether neuroscience will ever be able to answer this?
Although we can see what the brain is doing (for instance in terms of how specific brain regions are activated) when a person is performing particular actions – how the brain creates a functioning whole that we call ‘the mind’, how consciousness arises from physical matter, and how the mind causes us to act, are still unknown. We still don’t even yet really understand, at a motor neuron and muscle fibre activation level, the difference between an involuntary neuromuscular spasm and voluntarily jerking one’s arm in exactly the same way – the former is a purely mechanical reaction whereas the latter is a consciously decided action, but we cannot yet reliably explain the difference between the two from an outside observer’s point of view.
The ‘hard problem of consciousness’, or how a physical brain produces conscious feelings, is considered one of the hardest problems in science by some scientists and philosophers, and not because it inherently isn’t a question for science to answer. It may be answered one day but we have hardly decoded the human brain to this level of understanding yet. (Relatedly, there are questions like will we ever be able to see if a brain transplant would also transplant the consciousness of the donor? There are anecdotes of recipients of heart transplants who felt that their personality had been influenced by the personality of the donor of the heart, but what they perceive is likely due to other explanations. It’s interesting when seeing which limbs conjoined twins can each control.)
That’s all a problem here because the criteria for responsibility and culpability in the eyes of the law are all based on acts in conjunction with mental states. Law is a thoroughly folk psychological (i.e. naïve in the sense of being about common sense) institution – whereas neuroscience (unlike psychology or psychiatry) is a totally mechanistic science (i.e. about neurotransmitters, neurons and action potentials, which don’t have intentions, motivations, aspirations or even a sense of past, present or future). And bridging this gap between ‘brain’ and ‘mind’ is proving difficult – leading courts to wonder whether neuroscientific evidence presented in criminal cases is at all relevant?
Reinforcing this relevance issue is the way that psychology precedes the behavioural neurosciences. Neuroscientists start with a behaviour of interest that’s already been identified by psychology, like addiction or impulsivity, and then they search for its neural correlates and sometimes causes – but the behaviour was already clear, and the law is only concerned with that behaviour. Thus neuroscience appears to add nothing or very little to the table when it comes to legal proceedings.
Current imaging technologies like diffusion tensor imaging (DTI) may find that an adolescent brain is indistinguishable from an adult brain – but we surely cannot therefore conclude that adolescents are behaviourally identical to adults? Moreover, we know that such brain differences must exist because a fundamental axiom of materialism or physicalism is that any behavioural differences must be associated with brain differences.
Which leads us to the ongoing debate about how determinism relates to free will and thus responsibility. Thoughts are products of physical matter and physical processes – of neurons, synapses, action potentials, electrochemical signals, etc. in and of the brain – and physical matter and physical processes fundamentally obey the laws of physics like Pascal’s Law, Boyles’s Law, the conservation of energy, or ‘for every action there is an equal and opposite reaction’.
The dominant view, within the philosophy of responsibility at least, however, is ‘compatibilism’ – that normal human beings have enough freedom to be held meaningfully responsible even if determinism is true. Well neuroscience cannot categorically prove that determinism is true anyway – some argue that not even the field of physics can truly prove this because answering this would require somehow being able to look in from outside of this universe. Moreover, free will isn’t a criterion of any criminal law doctrine – it’d perhaps render law and criminality completely pointless if it were ever accepted that free will doesn’t exist! Is law indeed pointless then, or inevitable, because we will all do whatever we will all inexorably do due to determinism?!
If neuroscience is used to assess tasks such as deciding how much punishment to impose is ‘right’, it may be able to tell us how much a region of the brain is activated beyond its base rate when making such decisions, but it won’t ever be able to tell us if x amount of activation is the ‘right’ amount of activation or therefore what amount of punishment ‘ought to be right’. Like science in general, it can tell us what something is but not what it ought to be. Even if science could – on a practical level it’d take a hell of a lot of quality research to find the ‘right’, or really normative, answers to all of the legally relevant questions that exist. (Post No.: 0760 touched upon normative theory.) All of these research findings must be reliably reproducible too. And so far, neuroscience hasn’t escaped the ‘replication crisis’ that has beset much of research in psychology, medicine, economics and other fields, which isn’t good to know when what’s relied upon in law can profoundly affect people’s lives. Woof.
Some of these above issues can be sorted out, yet some don’t appear fundamentally possible to. Apart from in the case of a few well-characterised and medically recognised conditions like epilepsy, neuroscience might only offer modest contributions to the adjudication of criminal law or criminal justice policy. It’d be helpful if neuroscience could just tell us whether there’s an independent basis for the ability to control oneself. Neuroscience might help when predicting the outcomes of bail, diversion, probation and parole decisions. Civil libertarians fear that such predictions will become too accurate though. But what’s the problem with being more accurate, unless it isn’t actually accurate? This somewhat parallels the debate about personal health data and finely tuning health insurance decisions to each person’s predicted future health outcomes. (In this case, the poor will generally be predicted to have worse health outcomes, and so the poor will generally get charged the highest health insurance premiums.)
We’re definitely far away from any detailed ‘mind-reading’ or ‘thought-decoding’ technology. We’re definitely far away from being able to predict whether someone is premeditating a crime just by scanning their brain. Thoughts are just patterns of neural activation in the brain, yet the mind remains largely a private place; opaque under outside inspection when it comes to detail like ‘we observe this particular pattern of activation, the subject is therefore thinking of a cute sea bunny’. Coarser information can still be extremely useful though, like understanding the patterns of activation that correlate to PTSD. These patterns could then perhaps be transcranially magnetically disrupted to help steer patients away from those kinds of thoughts. With more fine-grained control though, we could maybe control another person’s mind however we’d like – which has its dystopian connotations if such technology were to be abused… and it highly likely will!
Well we already kind of do, well, influence rather than control each other – every time we talk, write, draw or otherwise communicate, and a recipient listens, reads, sees or otherwise absorbs this information. Certain patterns of neural activation trigger when I’m reading what I’m writing here and, if you understand English and comprehend my lines as I’ve intended them, similar patterns may be triggering in your brain right now as you’re reading what I’ve wrote here. And that’s how education and musings, or alternatively propaganda and rumours, can propagate from mind to mind.
In summary, criminal law is about ascertaining acts and mental states. To ascertain intention, the law principally uses questions – questions about what a defendant did, what they intended, what they remember, and what they experienced. Meanwhile, neuroscience looks at physical, biological things like cells and electrochemical signals. How do we go from seeing a scan that shows lit-up parts of the brain to understanding whether a person truly intended a particular act? Unless this can be solved, neuroscience won’t add as much as we’d hoped to judicial proceedings.
Woof. The far future can be hard to predict when it comes to the field of science and technology, so please use the Twitter comment button below if you wish to share your musings on whether or not neuroscience will significantly revolutionise criminal law?
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