LaN Resit Flashcards
Measures brain activity by detecting changes in BOLD (blood flow).
fMRI
Measures brain activity by detecting changes in BOLD (blood flow).
EEG
Records electrical activity in the brain.
PET
Uses radioactive tracers to examine metabolic activity in the brain.
Limitations of neuroscientific findings
Correlation, group settings, ecological validity, technical challenges, and countermeasures.
Ecological Validity
Many studies are conducted under artificial laboratory conditions, making real-world application difficult.
3 Domains of neurolaw
Revision, assessment, and intervention.
Brain Overclaim Syndrome
(Morse) Law relies on folk psychology (behavioral criteria), while neuroscience is mechanistic. Hence, neuroscience cannot replace legal standards.
Denno’s 3 steps of voluntary conduct
- Voluntariness requires willed movements;
- Willed movements require internal, conscious decisions;
- Conscious decisions are made by ‘the unconscious’.
Hence, there’s not a real distinction between voluntary and involuntary conduct.
Flaw of Denno’s argument
The second step (willed movements require conscious decisions) is flawed in relation to legal standards as the threshold is not so high.
Free will
The idea that individuals can make choices independent of external or prior causes.
Freedom to act as one wills
A person might have the ability to act on their desires, but if those are determined by external factors beyond their control, are decisions truly free?
Determinism
All events are causally determined by prior events. Hence, choices are simply the inevitable result of past events.
Indeterminism
Events are random or probabilistic.
Libet experiment
Involved asking participants to press a button at a moment of their choosing while recording brain activity. Does not exclude a ‘veto power’.
Readiness Potential
Neural signals indicating movement appeared before the individual reported being aware of their decision to move (even before we perceive we intend to do something, our brain has already prepared for it).
Consequentialism/Utilitarianism
Punishment should be used to prevent future harm.
Retributivism
Punishment should be proportional to the seriousness of the crime and to the blameworthiness of the offender. It’s motivated by the idea of RESTORING MORAL BALANCE.
Hard Determinism
Accepts that free will and determinism are incompatible, and concludes that free will doesn’t exist.
Libertarianism
Argues that free will exists and determinism is false.
Compatibilism
Suggests that free will and determinism can coexist, as people may still be responsible for their actions if they can act rationally and without coercion.
Green and Cohen v Morse
Disagree with Morse on the fundamental psycholegal error (behavioral vs mechanistic), arguing that it’s not so much an error but rather a reflection of the gap between what the law officially cares about and what people really care about.
Rational Capacity
The ability to understand and respond to reason.
Voluntariness
Actions must not be coerced.
Awareness
The person must understand the consequences of their actions.
Psycholegal Error
It’s the mistaken belief that explaining behavior through neuroscience excuses it. Just because behavior has a cause, does not mean it is NOT the product of rational agency.
No-Action Thesis
(Libet experiment) Claims that the idea that our conscious self is where decisions originate is untrue. Instead, it is our unconscious mental self that makes decisions.
Mr Puppet’s experiment
It’s a thought experiment (by Greene and Cohen) about a man who’s fully influenced by a scientist who chooses everything for him, from his genes to his friends, etc. The reflection it leads to is whether it’d be unfair to punish him just because he’s rational.
3 Kinds of compulsion
- Literal: bodily movement is a pure mechanism (not rationalizable by agent’s desires, etc);
- Metaphorical: intended act is a response to a hard choice imposed through no fault of his own;
- Internal: ‘disorders of desire’, such as addicts, gamblers, paedophilies, and pyromaniacs.
Metaphysical Epiphenomenalism
All mental states are causally inefficacious, meaning that beliefs, desires, and intentions don’t influence action at all. Hence, all causal power lies within neural mechanisms.
Modular Epiphenomenalism
While conscious intentions exist, they do not directly contribute to action because unconscious brain events precede and determine behavior.
Hence, there is a dual-processing mechanism used as a narrative device, giving the ‘illusion of conscious will’.
Wegner’s research
Our sense of agency is constructed post-hoc (after the brain has already initiated an action). Our sense of control is a cognitive illusion.
Situationism
Argues that behavior is largely shaped by external factors rather than internal mental states.
Mereological Fallacy
Mistake of attributing personal agency to the brain rather than the whole person.
Neuroreductionism
Highlights the need to view agency in the context of the entire organism rather than isolating neural mechanisms.
Mind
A set of conscious and unconscious brain processes that emerge from the brain and its interactions with the body and the environment.
Damasio somatic marker hypothesis
Emphasizes the role of bodily signals in emotions, and how these signals make emotions integral to reasoning and decision-making.
Fuchs
Every subjective experience is inherently tied to a unique perspective that cannot be captured through objective descriptions. Hence, it’s essential to consider the brain (physical processes) as only a part of one’s reactions to reality.
Hume
The self is an emergent, not an intrinsic property. It is a flux of perceptions and thoughts, a construct of irrelated processes.
M’Naghten Test
At the time of committing the act, the party accused was laboring under such a defect of reason, from disease of the mind, as to not know the nature and quality of the act he was doing; or if he did know it, he didn’t know what he was doing was wrong. Strictly cognitive element.
M(odel) P(enal) C(ode) Test
The defendant is not responsible if they lack substantial capacity to appreciate the criminality of their conduct or to conform behavior to the law due to a mental disease or defect. Both cognitive and volitional impairments.
Insanity defense
Focuses on whether the individual can be held legally responsible, even if intent was present.
Frontal Lobe
Impulse control, decision-making, and moral reasoning.
Damage can lead to reckless or violent behavior, poor judgment, and increased criminal risk.
Amygdala
Emotion processing, especially fear and aggression. Dysfunctions may contribute to violent outbursts and lack of empathy, increasing the risk of impulsive crime.
Vental Striatum
Reward processing and impulse regulation. Abnormalities may result in risk-taking behavior and impulsive decision-making, common in antisocial personality disorders.
Dopamine System (Psychosis-related regions)
Reality perception and cognitive control. Irregularities, such as schizophrenia, may lead to delusions or hallucinations, impacting the individual’s perception of right and wrong.
Psychopathy
Personality disorder characterized by lack of empathy, impulsivity, manipulativeness, and inability to form genuine emotional attachments. Hence, difficult to excuse under MPC because the individual understands what’s wrong/right but lacks empathy.
vmPCF-damage (Phineas Gage)
Personality change characterized by a profound loss of guilt or empathy. Demonstrated in relation to the Trolley experiment by endorsing personal harm (pushing) rather than impersonal one (first scenario). Loss of moral behavior.
Dutch law insanity defense
Art. 39 DCC: Anyone who commits an offence for which he cannot be held responsible by reason of the mental disorder, psychogeriatric condition, or intellectual disability, is not criminally liable.
USA 3 categories of excuses
- Involuntary actions, such as reflexes or convulsions.
- Cognitive deficiencies (e.g. insufficient knowledge of the nature of the conduct).
- Volitional deficiencies (e.g. lack of ability to meaningfully control behavior to comply with legal and societal norms).
Sleepwalking homicide
Difficult to assess as basically every other aspect of one’s behavior is carried out normally (e.g. driving, etc). Hence, it’s usually assessed as INVOLUNTARY CONDUCT, negating actus reus before even assessing mens rea.
Morse and addiction
Addicts should not be excused because:
1. Addiction is a choice and they should be held responsible for becoming addicted in the first place.
- Mere causation cannot undermine responsibility, otherwise nobody would be responsible for anything.
- Coercion, compulsion, and irrationality fail to be proved: if addicts have a good enough reason, they will quit.
Models of addiction
Disease model: Addiction is a disease of the brain and should be treated as such.
Choice model: Addiction is a choice, as proven by the fact that if addicts want to quit, they can.
Compulsion and Morse
Compulsion (or irresistible urge) involves being forced to do something against your will by either an internal or external source. Compulsion bypasses intention.
Coercion (or duress)
Addicts might be excused if it could be shown that drug cravings are coercive in the sense that failure to act on them would exert a cost on them which it is unreasonable to expect them to bear.
Responsibility for becoming addicted (Morse)
Morse argues that addicted people are to blame for their addiction, as nobody is compelled or coerced into using drugs.
Diachronic self-control (Morse)
The agent should (1) manipulate their future circumstances to minimise the chance of temptation and (2) try to act directly on the desire (e.g. patches, etc).
Does not take into account ‘myopia for the future’.
Diminished responsibility
This can be considered in relation to addiction ONLY IN CASE OF MURDER if a mental condition substantially impaired the accused’s ability to understand his conduct, form a rational judgment, or exercise self-control.
DE Insanity Defense
Can lead to full or partial insanity defense. Complete exculpation is limited to extreme cases, while diminished responsibility (§21 GCC) accepted if the offender’s cognitive or volitional capacities were substantially impaired.
DE Addiction defense
Drug dependency as such does not negate or substantially diminish responsibility. Such consequences are only exceptionally given if long-term use has led to, for example, serious personality changes or in cases of serious withdrawal symptoms (PROPERTY OFFENSE).
Rehabilitationist view
The goal of a sentence is, at least partly, to reform the criminal tendencies of offenders. Hence, the main focus of some is to change the social causes of crime by emphasizing resocialization and reintegration into the community.
Moral Enhancement (Douglas)
The use of biomedical technologies to enhance our moral capacities.
Kirchmair’s counterargument to moral enhancement
- Presumption that the sole scope of incarceration is rehabilitation is wrong nowadays.
- Essential is to protect right to mental integrity and mental self-determination + right not to be subjected to torture or inhumane and degrading treatment.
Nonconsensual Neurocorrectives
Brain-active drugs and other interventions that exert a direct chemical or physical influence on the brain which are sometimes imposed by criminal justice systems on criminal offenders to facilitate offender rehabilitation.
Morris’ Paternalistic Theory of Punishment
The offender’s understanding of his offense and consequent acceptance of punishment is essential. Hence, Morris refuses ‘any response that sought the good of the wrongdoer in a manner that bypassed the human capacity for reflection, understanding, and revision of attitude.
Hampton’s Moral Education Theory of Punishment
The offender’s autonomy must be respected, thereby excluding measures such as lobotomy and shock treatments that impact the defendant’s ability to choose. The goal should be to persuade the offender to use his freedom in a way consistent with the freedom of others.
Howard’s Punishment as Moral Fortification
Switches the view from blameless patients to moral agents to be held accountable. Offenders have the duty to reduce their own likelihood of recidivism as they owe it to one another to maintain the dependability of their moral capacities. This requires PROACTIVE EFFORTS by moral agents.
Raynor and Robinson’s opinion on neurocorrectives
Rehabilitation is understood as the promotion of desistance from offending, rather than the prevention of it. Hence, it should be done BY the offender rather than TO him. Therefore, it must be CONSENSUAL and SAFE.
Ethical non-invasive treatment requirements
- The status quo is in no way cruel, inhuman, degrading, or in some other way wrong, etc.
- The treatment option is in no way cruel, inhuman, degrading, or in some other way wrong.
- The treatment is in the best interests of the offender.
- The offender gives his informed consent.
Aggression
Behavior directed toward another individual with the proximate intent to cause harm.
Horgan’s reasons for moral right to neurorehabilitation
- Countermeasure to the debilitating side effects of punishment.
- Right to hope for renewed liberty.
- Compensation for structural injustice (environmental reasons why person became a criminal).
Horgan’s right to rehabilitation
This right refers to the types of interventions that seek to bring about dispositional changes in offenders such that they are no longer inclined to engage in crime. These include behavioral therapies, educational initiatives, or pharmaceuticals aimed at attenuating aggression, improving self-control, or enhancing empathic abilities.
Daubert Standard
Judges in federal cases should be more active gatekeepers of scientific evidence in court, rather than simply deferring to the general scientific opinion.
Elements to be assessed:
1. Whether the method is testable and has been tested.
2. Whether it has been reported in peer-reviewed publications.
3. Whether there is a known or potentially known error rate.
4. Whether there are standards for the way in which the method is used.
5. Whether the method is generally accepted within the relevant scientific field.
Empirical issues with BBLD
- Scanning and data analysis complexity.
- Sample size (small groups).
- Subejct diversity (narrow demographic).
- Time factor (soon after events, unlikely for court cases).
- Types of lies.
- Stakes (different from real-life consequences).
- Overlap with other activities (brain activity can also be associated with other processes/thoughts).
- Countermeasures.
Conceptual issue with BBLD
- Mereological fallacy (lying is behavioral, not a mental state).
- Direct (fMRI) and indirect (polygraph) evidence.
- Mental states and Eliminative Materialism (neuroscience provides probative evidence for behaviours).
- Lying and deception are not the same thing (law checks intentional falsehood).
- Not lying in experiments (Don Fallis: lying requires conversational context where truthfulness is expected).
- Neuroscience might shift the criteria to mental states ipv behavioral evidence.
Practical issues with BBLD
- Evidence must be relevant and reliable (Daubert standard).
- Potential misinterpretation by jurors.
- Fear that evidence could usurp the jury’s role of ‘lie detectors’.
- Systematic implications (constitutional right for defendants to present such evidence). Could lead to challenges of integration in legal systems.
V Amendment criteria
To fall under this provision, evidence must be (1) incriminating, (2) testimonial, and (3) compelled.
Schmerber v California
The V Amendment protects the accused from having to ‘provide the State with evidence of a testimonial or communicative nature’ (blood test was physical, not testimonial).
fMRI could fall under the testimonial definition, however it doesn’t (according to this ruling) because it doesn’t entail a communicative act.
Greenly and Wagner’s POV
Any evidence acquired through neuro lie detection is permissible because it’s nothing more than a digital record of brain activity. The communicative act required by fMRI is not used for its testimonial content, but rather to produce physiological evidence.
Micheal Pardo’s POV
Lie detection is testimonial because it is inductive evidence of the defendant’s epistemic state/authority (one’s prior knowledge/mental state). In other words, such evidence would not be obtained if it wasn’t for the mental state/knowledge the individual has.
Brain Fingerprinting
Measures the P-300 brain wave when individuals are presented with stimuli relevant to the case. This wave signals an individual’s recognition of a unique or meaningful item, hence it doesn’t measure whether the subject is lying but rather if he has prior knowledge of said stimuli.
It is a Concealed Information Test (CIT) seeking to determine whether information about a particular event is stored in one’s brain.
Winston v Lee
(VIth Amendment) The Court found that intrusions that severely violate one’s ‘dignitary interests in personal privacy and bodily integrity’ are unconstitutional, as individuals’ dignity and interests are weighed against society’s need to determine guilt/innocence.
Sauders v United Kingdom
Material that has an existence independent of the will of the suspect (e.g. DNA, documents, etc) is excluded from Art. 6 (Self-Incrimination).
