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Neuroscience and the Law: the promise and the perils of neuroscience in the courts by Judge Nancy Gertner (ret)

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With the advent of functional magnetic resonance imaging (“fMRI”), neuroscientists could finally study the living brain (as opposed to the brains of corpses) and expose subjects to noninvasive tests about such things as moral decision-making, cognitive capacity, impulsivity, or even pain.  Research subjects can be shown pictures or text, asked to make choices amongst the alternatives offered to them, and their reactions can be monitored. The result has been an explosion of research by cognitive neuroscientists, some of which has a direct and significant impact on the law.  But while the research is enormously promising, its use – at least at this time – is limited to certain contexts.  One scholar calls the “brain overclaim” syndrome, in which some are claiming far too much for this relatively young field.

My goal will be to outline the fields in which “neurolaw” is most promising – torts, criminal law (both culpability, competence, and sentencing) as well as extraordinary studies on judicial decision making.

On the civil side, there are important strides in identifying pain responses on brain scans.  In the United States, where tort law rejected claims of pain and suffering outside of the context of an accident or injury – because such claims were not credible –neuroscience opens new possibilities of proof. The customary American view was that physical injury was more entitled to compensation because its proof was more trustworthy.  While the field is evolving, some scientists believe that there could well be ‘brain based signatures” that would confirm pain in situations in which the individuals are unable to communicate or self reporting is suspect.

On the criminal side, psychology in general, neuroscience in particular, has made important strides in changing the way the courts deal with eyewitness identification – rebutting the view that the brain is a videotape, demonstrating the ways in which memories are distorted at every stage of the process – the initial “encoding,” the retention, and retrieval. The new insights have led numbers of courts to reevaluate jury instructions with respect to eyewitness identification; it has changed protocols for the police in interviewing potential eyewitnesses.   And there have been efforts to use neuroscience to address issues of culpability – competence to stand trial, mental responsibility and diminished capacity, although those efforts are contested in ways that I will describe.  The neuroscience of adolescent brain development has led to important changes in the way that adolescents are dealt with – the elimination of life without parole for adolescents, changes in the way that adolescents are treated in connection with confessions, proposals for different kinds of juvenile courts, etc.

Perhaps the most promising area of all is with respect to sentencing.  Neuroscience provides the possibility of grounding sentencing decisions in the science of addiction, new mental health insights, even neuroscience of adverse childhood experiences.  Again, there are limitations and concerns, but the promise is surely there.

Finally, I will talk about what I like to describe as the “punisher’s brain,” what the neuroscience tells us about the way judges make decisions – the impact of different types of substantive law, the setting in which decisions are made. This may well be the most interesting part of the presentation for a judicial audience.


Judge Nancy Gertner is a session presenter at the forthcoming “Reflections on the Judicial Function” program being held in Adelaide 02 – 04 October 2019.