Recently Posted to SSRN:
"The Devil’s Advocate: Using Neuroscientific Evidence in International Criminal Trials?"
Brooklyn Journal of International Law, Forthcoming
ADAM B. SHNIDERMAN, University of California, Irvine - Department of Criminology, Law and Society
This Article presents an analysis of the potential implications of neuroscientific evidence being incorporated into proceedings at the International Criminal Court.
Recent advances in neuroscience have garnered significant attention from the academic legal community, particularly with respect to scientific insight into an individual’s culpability. As the evidence has begun to trickle into the courtroom playing a role in several significant Supreme Court decisions regarding juveniles, scholars have considered the implications for incorporating this growing body of science into the legal system. However, the emerging body of scholarship has focused almost exclusively on the American legal system. Academics have remained largely silent regarding the implications of science altering notions of culpability for international criminal trials, where courts are confronted with particularly heinous crimes.
This paper considers the implications for international criminal trials of having to address a neuroscience-based understanding of culpability. The paper discusses the implications for the due process rights of the accused, the rights and needs of the victims, the didactic value of trials, and the viability of the trial model in light of evolving issues at the intersection of law, politics, and neuroscience. This paper concludes that whether the international criminal legal regime accepts or rejects this science, the legitimacy and justness in a traditional trial model is zero-sum. That is, the rights of either the accused or victim will be undermined; we must decide whose. Yet, this realization does not prove fatal for trials before the International Criminal Court. Suggestions for future research are made.