Neuroethics & Law Blog

"Impact of Trauma on Adult Sexual Assault Victims: What the Criminal Justice System Needs to Know" by Haskell and Randall

Lori Haskell (University of Toronto - Department of Psychiatry) and Melanie Randall (University of Western Ontario) have published "Impact of Trauma on Adult Sexual Assault Victims: What the Criminal Justice System Needs to Know" on SSRN. Here is the abstract: 

Sexual assault is a widespread and serious problem in our society. Yet instead of delivering justice to its victims the criminal justice system can too often be a source of further distress for victims. It is well known that sexual assault complainants have too often experienced the criminal justice system as a place that re-traumatizes and even harms them and that many victim-survivors choose not to report the crimes of sexual violence committed against them as a result.

Sexual assault is very often an experience of trauma. Trauma has a neurobiological impact – it affects our brains and our nervous-systems. For this reason, it is imperative that those working within the criminal justice system have a basic appreciation of the effects and impact of trauma in relation to victims of sexual assault in order to process sexual assault cases more effectively and receive evidence in these cases in a more fair and impartial manner.

Recently, an important and significant paradigm shift in our knowledge about victim reactions to traumatic events like sexual assault, including impact on memory, has deepened understanding and led to improved practices which assist with developing more effective criminal justice system responses to sexual assault cases. Insights from the neurobiology of trauma has assisted professionals working in a wide range of fields to better understand the psychological and physiological responses of crimes such as sexual assault, and how these affect victim response. This in turn, has facilitated more trauma-informed service delivery and more appropriate and effective interventions, from first responders like police through to advocates and legal personnel in court rooms.

The focus of this report is on outlining some of the key findings from the body of knowledge of neuroscience, and applying them to the issue of sexual assault and its impacts on victims. More specifically, we review and highlight some of the significant developments which have emerged from the field of the neurobiology of trauma as they relate to the unique crime of sexual assault and apply their relevance to the many challenges surrounding the criminal processing of sexual assault cases.

Victim reactions to sexual assaults are still not well understood in society at large. These misunderstandings unfortunately continue to persist in the legal system. In fact, they contribute to ongoing deficiencies in criminal justice system processing of sexual assault cases, leading to imperfect justice for victims and survivors. This has been described as the “justice gap” for sexual assault cases. We argue that this justice gap can, in part, be closed by moving towards a more trauma-informed criminal justice system. This will lead to more just outcomes for sexual assault complainants and also allow for the fuller realization of the impartiality and fairness that criminal trials are supposed to provide for all participants.

"Scanning for Justice: Using Neuroscience to Create a More Inclusive Legal System" by Rosenthal

Hilary Rosenthal (Columbia University, Law School) has published "Scanning for Justice: Using Neuroscience to Create a More Inclusive Legal System" on SSRN. Here is the abstract: 

Although they may seem to be worlds apart, on further inspection, neuroscience and the law are not so discordant. Neurolaw is an emerging interdisciplinary field that undertakes to examine how an increased understanding of the human nervous system can lead to a more precise explanation for human behavior, which in turn could inform the law, legislation, and policy. While increased dependence on neuroscience in the courtroom raises evidentiary and normative concerns, its use can also have significant implications for civil and human rights by opening doors for plaintiffs to bring claims that historically have been difficult to prove. One such example is the way neuroscience can obviate the outmoded physical-mental divide in tort law. Courts in the United States have been skeptical of awarding damages for “invisible” injuries, such as PTSD, concussions, neurodegenerative diseases, and emotional pain and suffering, all of which can alter brain structure and function, but often do not manifest physically until it is too late for a person suffering those harms to recover damages in a courtroom. However, as neuroscience technology improves, it can help detect these previously hidden or latent injuries, especially for those in marginalized communities, and begin to uproot entrenched policies that perpetuate health inequality. Neuroscience, while not without its shortcomings, has become an increasingly important tool to create a fairer, more just, and more rehabilitative justice system.

"The Neuroscience of Evidentiary Rules: The Case of the Present Sense Impression" by Sundby

Christopher Sundby (Vanderbilt University, Law School; Vanderbilt University, School of Medicine, Neuroscience Graduate Program) has published "The Neuroscience of Evidentiary Rules: The Case of the Present Sense Impression" on SSRN. Here is the abstract:

The Federal Rules of Evidence (FRE) determine what evidence federal juries see and don’t see, with most states having adopted rules modeled on the FRE. Despite playing a pivotal role in the accuracy, efficiency, and legitimacy of trials, the rules are premised on untested psychological assumptions. The Present Sense Impression (PSI), is an exception to the general ban against hearsay when it is believed that the traditional risks of errors in perception, memory, narration, and deceit associated with hearsay are lessened. The PSI assumes that contemporaneity is a safeguard against deceit. Here, we used novel behavioral paradigms and electroencephalography (EEG) measures to assess several event-related potential components (ERP) associated with deception. These ERPs were used to test the hypothesis assumed by the PSI exception that distinct cognitive processes underlie lies about contemporaneous events, lies about past events, and truthful responses. Our results suggest that while contemporaneity is not a safeguard against deceit per se, as the PSI assumes, people do switch cognitive strategies when lying about a contemporaneous event compared to a past event and that these strategies are well suited to the safeguards established by the PSI. Specifically, when lying in the moment individuals utilize a slower, more memory intensive lie cognitive strategy that may be more easily detected by a causal third party observer. When lying about a past event, however, individuals shift to a faster, less memory intensive cognitive strategy that may result in fewer behavioral tells but could signify less overall encoding of the event such that cross examination may be effective at uncovering the deceit.

"Against the Received Wisdom: Why Should the Criminal Justice System Give Kids a Break? by Morse

Stephen Morse (University of Pennsylvania Law School) has published "Against the Received Wisdom: Why Should the Criminal Justice System Give Kids a Break?" on SSRN. Here is the abstract: 

Professor Gideon Yaffe’s recent, intricately argued book, The Age of Culpability: Children and the Nature of Criminal Responsibility, argues against the nearly uniform position in both law and scholarship that the criminal justice system should give juveniles a break not because on average they have different capacities relevant to responsibility than adults, but because juveniles have little say about the criminal law, primarily because they do not have a vote. For Professor Yaffe, age has political rather than behavioral significance. The book has many excellent general analyses about responsibility, but all are in aid of the central thesis about juveniles, which is the central focus of this essay review. After addressing a few preliminary issues, the essay discusses Professor Yaffe’s negative argument against the validity of the behavioral difference rationale for giving juveniles a break. If the negative case fails, which the essay argues it does, then the only issue is whether the book’s alternative is desirable. Again, the essay argues that it is not, and concludes by offering three positive arguments for the traditional rationale: 1) coherence and simplicity; 2) a benignly definitional argument that survives the negative argument and supports giving juveniles a break in the exceedingly unlikely event that the empirical assumptions of the traditional rationale are proven incorrect; and 3) a proposal for individualization of the culpability assessments of juveniles so that the criminal justice system blames and punishes them proportionately to their culpability.

"Normative Ignorance: A Critical Connection Between the Insanity and Mistake of Law Defenses" by Levy

Ken Levy (Louisiana State University, Baton Rouge - Paul M. Herbert Law Center) has published "Normative Ignorance: A Critical Connection Between the Insanity and Mistake of Law Defenses" on SSRN. Here is the abstract: 

This Article falls into three general parts. The first part starts with an important question: is the insanity defense constitutionally required? The United States Supreme Court will finally try to answer this question next term in the case of Kahler v. Kansas.

I say “finally” because the Court refused to answer this question in 2012 when it denied certiorari to an appeal brought by John Joseph Delling, a severely mentally ill defendant who was sentenced to life in prison three years earlier for two murders. Delling never had the opportunity to plead the insanity defense because his home state, Idaho, had abolished it in 1982.

By depriving Delling of the right to plead insanity, Idaho violated Delling’s Fourteenth Amendment right to due process and his Eighth Amendment right against “cruel and unusual” punishment. Naturally, the same is true for many other mentally ill and disabled defendants who have been prosecuted in Idaho and in the other three states that have abolished the insanity defense: Kansas, Montana, and Utah.

The second general part of this Article notes an insight that I stumbled upon in the course of researching the first part: the insanity defense and the mistake of law defense both require ignorance of the law, what I refer to as “normative ignorance.” Indeed, normative ignorance is what makes both of these defenses exculpatory in the first place.

Given this critical connection, there is a way for Idaho, Kansas, Montana, and Utah to resume compliance with the Constitution. Instead of reinstating the insanity defense per se, which might be politically unpopular, they should just broaden their mistake of law defense to include normative ignorance caused by cognitive incapacity that is itself caused by mental illness or disability.

Still, this Article is not merely directed at these four western states. It is directed at the other forty-six states as well. Because they already have an insanity defense, they need not incorporate it into their mistake of law defense. But in the third general part, I will argue that they should still expand their mistake of law defense to cover defendants who either lack a reasonable opportunity to learn the law or reasonably but mistakenly infer from widely accepted norms or ethics that their conduct is lawful.

"How to Fix Legal Scholarmush" by Kolber

Adam J. Kolber (Brooklyn Law School) has published "How to Fix Legal Scholarmush" on SSRN. Here is the abstract: 

Legal scholars often fail to distinguish descriptive claims about what the law is from normative claims about what it ought to be. The distinction couldn’t be more important, yet scholars frequently mix it up, leading them to mistake legal authority for moral authority, treat current law as a justification for itself, and generally use rhetorical strategies more appropriate for legal practice than scholarship. As a result, scholars sometimes talk past each other, generating not scholarship but scholarmush.

In recent years, legal scholarship has been criticized as too theoretical. When it comes to normative legal scholarship, however, the criticism is off the mark. We need more careful attention to theory, otherwise we’re left with what we have too much of now: claims with no solid normative grounding that amount to little more than opinions. We have no shortage of opinions, and simply producing more opinions will not make scholarship more practical.

Of course, centuries-old disputes in jurisprudence have struggled to untangle the precise relationship between law and morality, but my message is simple: Scholars must be more clear, transparent, and rigorous about which of their claims are descriptive and which are normative (and what sort of normativity is at issue). By being more precise, we can hope to stop talking past each other and develop more objective criteria for evaluating both scholarship and public policy more generally.

"Implicit Jury Bias: Are Informational Interventions Effective?" by Roberts

Anna Roberts (St. John's University - School of Law) has published "Implicit Jury Bias: Are Informational Interventions Effective?" on SSRN. Here is the abstract:

The purpose of this chapter is to consider whether educational methods are — or could be — an effective way of tackling the implicit jury biases that threaten the fairness of trials. First, the chapter introduces the key ingredients of implicit bias, focusing particularly on their consequences for juries. It then reviews the efforts that have been made to use educational interventions to address implicit jury bias, as well as others that have been proposed. These existing and proposed interventions include jury orientation, jury instructions, expert testimony, individuation, and race salience. The chapter concludes by reviewing some of the primary obstacles to these kinds of efforts.

"Consent and the Constitution" by Fehr

Colton Fehr (University of Alberta, Faculty of Law) has published "Consent and the Constitution" on SSRN. Here is the abstract:

The consent of a victim generally operates as a bar to criminal responsibility. In its early jurisprudence, the Supreme Court of Canada went so far as to imply that the consent principle might qualify as a principle of fundamental justice under section 7 of the Charter. Subsequent jurisprudence, however, has failed to provide any moral content to the consent principle. In this article, I maintain that any constitutional role for the consent principle must derive from its dual purpose: protecting accused who commit morally innocent and morally permissible acts from criminal conviction. Constitutionalizing consent in this manner serves two purposes. First, it provides a mechanism for distinguishing the consent principle’s role as an element of an offence from that of a defence. Second, it illustrates the valuable role a constitutional framework for consent can play with respect to refining several of its most controversial applications — pre-consent to sex, sadomasochism, and incest.

"Death by Numbers: Why Evolving Standards Compel Extending Roper’s Categorical Ban Against Executing Juveniles From 18 to 21" by Blume, Freedman, Vann, and Hritz

John H. Blume (Cornell Law School), Hannah Freedman, Lindsey Vann (Justice 360), and Amelia Hritz (Cornell Law School) have published "Death by Numbers: Why Evolving Standards Compel Extending Roper's Categorical Ban Against Executing Juveniles from 18 to 21" on SSRN. Here is the abstract:

Nearly fifteen years ago, the Supreme Court held in Roper v. Simmons that the Eighth Amendment prohibits the execution of people who were under 18 at the time of their offenses. The Court justified the line it drew based on legislative enactments, jury verdicts, and neuroscience. In the intervening years, however, much has changed in juvenile sentencing jurisprudence, the legal treatment of young people, and neuroscience. These changes beg the question: Why 18? Is the bright-line rule that the Court announced in Roper still constitutionally valid or do the changes since 2005 now point to a new cutoff at 21?

To answer those questions, this Article considers post-Roper developments in the relevant domains to make the case that the 18-year-old constitutional line should be extended to age 21. It does so by applying the Supreme Court’s evolving-standards-of-decency methodology. Specifically, the Article examines all death sentences and executions imposed in the United States post-Roper and looks at the current state of neuroscientific research that the Court found compelling when it decided Roper.

Two predominant trends emerge. First, there is a national consensus against executing people under 21. This consensus comports with what new developments in neuroscience have made clear: people under 21 have brains that look and behave like the brains of younger teenagers, not like adult brains. Second, young people of color are disproportionately sentenced to die — even more so than adult capital defendants. The role of race is amplified when the victim is white. These trends confirm that the logic that compelled the Court to ban executions of people under 18 extends to people under 21.

 

"Cold Cognition, Hot Emotion, and the Training of Lawyers" by Friedland

Steven Friedland (Elon University School of Law) has published "Cold Cognition, Hot Emotion, and the Training of Lawyers" on SSRN. Here is the abstract:

Recent advances in neuroscience have shown that cognition and emotion often work interdependently, operating as if emerging from a single faucet. This means that the stereotypes of a divided “cold cognition” and “hot emotion” are overly simplistic and inaccurate. The outdated but influential Langdellian approach to law, lawyering and legal education still places cognitive legal reasoning as the centerpiece. Instead, the cognition-emotion conceptualization should be revised so that positive emotion is expressly accepted, used, and managed within legal systems. Students and lawyers should be taught how to successfully feel and act like lawyers, as well as think like them.

"Free Will, Action and Responsibility: Philosophical and Legal Analysis" by Didikin

Anton Didikin (Higher School of Economics: Russian Academy of Sciences Institute of State and Law) has published "Free Will, Action and Responsibility Philosophical and Legal Analysis" on SSRN. Here is the abstract:

The paper provides an analysis of the main approaches to the interpretation of volitional actions in analytical legal philosophy, in the context of legal responsibility and discussions about free will. The most famous examples of the possibility of applying the neuroscience arguments in legal philosophy, in particular when assessing the effect of a volitional act performed consciously on human behavior, are considered. The paper argues that the philosophical argumentation in Gilbert Ryle's logical behaviorism can be used as a rational approach to refute neuroscience data and interpret actions correctly, in terms of legal language. In legal philosophy, the question of the applicability of legal responsibility for an offense committed by a subject is of fundamental importance. On the one hand, a state's use of coercion is aimed to support the regime of legitimacy and encourage lawful actions. However, the justifiability and adequacy of the sanctions and punishments applicable to the subjects of the offenses remain the topic of philosophical and legal discussions. To what extent may discoveries in neuroscience affect a final conclusion supported by arguments? Is there a real need to re-evaluate the degree of "freedom" of an individual in making a rational moral and legally significant choice of behavior? In the theory of legal responsibility, there are two traditional approaches to explaining the meaning of applying punishment to a person who has committed a crime or an offense. The first approach was called consequentialism, as its name suggests, the use of punishment for an offense results in the beneficial social consequences. When punishing the consequences, state intentions are aimed at preventing the illegal actions in the future and to facilitate the rehabilitation effect, which eliminates the consequences of the offense committed. The second approach , known as retributivism, is based on the need for adequate sanctions for the criminal act committed. The offender deserves a punishment, and its application sends a clear signal to society that punishment is inevitable, and it is a basic principle of the legal system.

"The Neuroscience of Evidentiary Rules: The Case of the Present Sense Impression" by Sundby

Christopher Sundby (Vanderbilt University, Law School) has published "The Neuroscience of Evidentiary Rules: The Case of the Present Sense Impression" on SSRN. Here is the abstract:

The Federal Rules of Evidence (FRE) determine what evidence federal juries see and don’t see, with most states having adopted rules modeled on the FRE. Despite playing a pivotal role in the accuracy, efficiency, and legitimacy of trials, the rules are premised on untested psychological assumptions. The Present Sense Impression (PSI), is an exception to the general ban against hearsay when it is believed that the traditional risks of errors in perception, memory, narration, and deceit associated with hearsay are lessened. The PSI assumes that contemporaneity is a safeguard against deceit. Here, we used novel behavioral paradigms and electroencephalography (EEG) measures to assess several event-related potential components (ERP) associated with deception. These ERPs were used to test the hypothesis assumed by the PSI exception that distinct cognitive processes underlie lies about contemporaneous events, lies about past events, and truthful responses. Our results suggest that while contemporaneity is not a safeguard against deceit per se, as the PSI assumes, people do switch cognitive strategies when lying about a contemporaneous event compared to a past event and that these strategies are well suited to the safeguards established by the PSI. Specifically, when lying in the moment individuals utilize a slower, more memory intensive lie cognitive strategy that may be more easily detected by a causal third party observer. When lying about a past event, however, individuals shift to a faster, less memory intensive cognitive strategy that may result in fewer behavioral tells but could signify less overall encoding of the event such that cross examination may be effective at uncovering the deceit.

"Neurobionic Revenge Porn and the Criminal Law: Brain-Computer Interfaces and Intimate Image Abuse" by Vincent, Nadelhoffer, and McCay

Nicole Vincent, Thomas Nadelhoffer, and Allan McCay (University of Sydney) have published "Neurobionic Revenge Porn and the Criminal Law: Brain-Computer Interfaces and Intimate Image Abuse" on SSRN. Here is the abstract:

Brain computer interfaces make possible a form of neurobionic agency in which people interact with the internet by mental action, without the need for a bodily movement. In this paper I consider the possibility of someone uploading intimate images of another person, without their consent, onto social media by way of brain-computer interface. I do this in order to highlight the novel, and perhaps problematic nature, of the options for response to such offending (given current doctrine) that are available to the criminal law. I use the example of revenge porn as a case study, in order to very tentatively consider the criminal law’s response to neurobionic offending more generally.

Methodologically, my paper is somewhat different to much of the work that has been done on criminal responsibility in the context of brain computer-interfaces, insofar as the paper significantly engages with legislation, and to some extent case law, with reference to a hypothetical scenario. Previous work has generally considered the issues in more abstract terms and I argue there are some advantages to my more applied approach.

Whilst the law has criminalized bodily actions, omissions and certain kinds of status, neurobionic agency falls into none of these traditional categories, and some issues flow from this failure. I will argue that neurobionic revenge porn would present a challenge to the criminal law relating to the determination of the conduct which constitutes the actus reus. Thus, I argue that if the courts are required to respond to this kind of offending; it will raise questions about a concept that is currently central to the criminal law.