Last week, in a criminal case decided by the Court of Como, neuroscience and behavioral genetics together entered the Italian legal system. Ms. Albertani, a 28-year-old Italian woman, was formally charged with the murder of her sister and the kidnapping and attempted murder of her mother. The Court of Como found the accused guilty but only partially responsible, mitigating the sentence from 30 to 20 years imprisonment, of which at least 3 years are to be spent in a mental hospital. The defending attorney presented an insanity defense based on psychiatric, neuroscientific and genetic tests, in order to scientifically demonstrate that the accused was partially insane at the time of the crime.
In the judgment, the Court asserts that Albertani’s criminal behavior was clearly not logical and adequately tailored to the purpose of murder. For that reason, expert witnesses were initially appointed both by the Court and the parties. The first 2 testimonies, however, were in direct conflict with each other. The court appointed expert held that the accused was completely rational at the time of the crime, while the defense’s expert declared the presence of psychosis.
The defense eventually presented a new experts’ testimony. They declared the presence of a dissociative identity disorder, mainly revealed by memory deficits detected both through behavioral analysis and memory tests (the IAT-Autobiographical Implicit Association Test, and TARA-Time Antagonistic Response Alethiometer, used to establish whether an autobiographical memory trace is encoded in the respondent's brain). Further, they intended to demonstrate Albertani’s incapacity to distinguish between right and wrong and control her impulsivity using neuroscientific techniques such as EEG and VBM – VoxelBasedMorphometry. VBM showed a lack of integrity and functionality of the anterior cingulated cortex, linked to obsessive-compulsive disorder and aggressiveness, where the person lacks the capacity to substitute the automatic behavior with a different one. An alleged pronounced tendency toward aggressive behavior was moreover demonstrated on the basis of the presence of a genotype related to the MAOA-uVNTR polymorphism. Some literature describes this genetic pattern as an “unfavorable” condition for women raised in antisocial contexts. In this case it would be indicative of Albertani’s predisposition to act aggressively and compulsively.
The third expert testimony was considered the most reliable of the three. This is very unusual in a civil-law system like Italy, where the Court-appointed expert normally plays the main role and not the defense. The judge interestingly explains why neuroscience and genetics should be entitled to play a role in criminal procedure. She emphasizes modern psychiatry’s difficulty in recognizing mental insanity with the necessary precision and reliability, in defining precise diagnosis of mental pathologies, and in evaluating personal abilities to distinguish between right and wrong. The traditional psychiatric approach, based on behavioral studies, is not going to be replaced by neuroscience and genetics, but instead will be integrated with these fields. She clarifies that a “copernican revolution” is not still in progress within the field of mental illness and, most of all, this case does not introduce a new deterministic method of inferring direct conclusions about criminal behavior from brain morphology. In order to stress the refusal of a mere deterministic approach, the judge also mentions Michael Gazzaniga’s axioms: “Brains are automatic, rule-governed, determined devices, while people are personally responsible agents, free to make their own decisions” (The Ethical Brain, Diana Press, New York/Washington, D.C, 2005).
This case, probably the first of its kind not only in Italy but also in Europe (as it involves both neuroscience and genetics), is now being analyzed by legal scholars and scientists because many questions still remain, particularly in regard to the methods involved in memory and genetic tests. There are many procedural doubts, concerning for instance the reliability and standardization of the IAT and TARA test for this specific case, the not-yet clear criteria followed to set the control groups in VBM and, most of all, the scientific soundness of declaring the presence of “unfavorable” genes as applied to criminal behavior.
In general, environmental influences are unique for each individual, and finding correlations between behavior and morphology of the brain may not necessarily provide causal explanation of aggressiveness or impulsivity. It is unquestioned however that neuroscience and behavioral genetics are assuming an increasingly important role in criminal defenses. This case shows that European judges are indeed beginning to take them into greater consideration as well.