Task 4 Flashcards
1) What are the three ways in which neuroscience may interact with mens rea?
How neuroscience can help mens rea:
- Neuroscience based lie-detection may help to provide evidence of whether a defendant is engaged in deception in answering questions about his previous mental states or whether he possesses ‘guilty knowledge’ or memories of a crime.
- Neuroscience may inform whether a defendant acted with a particular mental state by providing evidence of whether he had the capacity to have the requisite mental state. Although mens rea and insanity overlap they are distinct issues. The defendant may have been insane, but still intended to kill the victim and vice versa. Defendant who fails to meet the tests for insanity may still not have the requisite mens rea.
- Evidence about the brain may indicate whether the defendant had a particular mental state at the time of the crime. Proposed relationships between the neuroscientific information and particular mental states are not clear. The use of brain imaging along these lines will typically require an inference to a past mental state from current neural data.
2) Why can the use of neuroscience in determining mental states be so problematic?
- There is a wide variability among individual brain activity and behavior.
- Brain scans will likely be made some period of time after a crime has been committed but the legal tests depend of the defendants capacities at the time of the crime.
- Is evidence reliable enough?
- Correlation does not imply causation.
- Brains change over time.
- You cannot compare an individual to a group.
3) Is it easy to deny ‘intent’ even when there is brain damage that clearly has affected the suspect’s behavior? Can you give an example from Dutch case law that illustrates this?
Only diagnosis of dissociation in the Netherlands convinces the court that the suspect has not acted intentionally.
Use of neuroscientific evidence to determine intentionality: diagnosis of serious impairments of the suspect´s cognitive functions apparently has little impact on the court´s decision concerning the intentionality of the suspect´s actions. court believed that although the suspect´s actions were influenced by the brain damage, he know what he was doing and therefore acted intentionally. but the same evidence of frontal damage was severe enough to deem the suspect severely diminished responsible for his actions
4) Is the traditional criminal law distinction between intent and recklessness conceptually and also empirically sound?
To what extent is the difference between knowledge and recklessness, as defined by the law, the same as the difference between certainty and uncertainty? People are considered to act knowingly, under the law, when they are certain that their conduct is accompanied by a specific circumstance (in our experiment, that the suitcase contained contraband). In contrast, they are considered to act recklessly if they are aware of a “substantial and unjustifiable” risk that their conduct is accompanied by that circumstance, but unsure of it. So, the distinction between knowledge and recklessness is closely related to the ordinary distinction between certainty and uncertainty. However, knowledge and recklessness are both likely to have more elements than certainty and uncertainty, respectively, have. There will be cases of certainty that are not cases of knowledge in the legal sense, and cases of uncertainty that are not cases of recklessness. The knowing and reckless mental states generally include an interpersonal relation, and they often include a moral dimension. The brain areas we found support this notion.
5) How would you critically assess this plea for an insanity defence, both in terms of the possible role of neuroscientific evidence and in terms of whether the legal conditions for this defence are fulfilled?
Insanity defense = typical Anglo-American term. in continental systems = excuse of non- or diminished accountability/responsibility.
Legal insanity standards are different in legal systems.
Questions any system has to address
o Is there a mental disorder? And what do we accept as a mental disorder? (addiction, psychosis)
o Is this disorder connected to the crime?
o Which mental capacities are & should be impaired by a disorder?
what is the excusing link between crime and disorder?
Lack of insight: cognitive/evaluative impairment?
Lack of restraint: volitional impairment?
o Is there prior fault (e.g. self-intoxication)?
6) Would your legal assessment be different if the crime would not have been committed in England but in the Netherlands?
Insanity defense: Netherlands
- He who commits an act for which he cannot be held responsible by reason of an arrested development or pathological disorder of his mental capacities is not criminally liable
- direct relation between mental disorder and offense
- Not specifically mentioned which capacities can be impaired in order to have this defense (different to German)
full excuse or partial excuse (= diminished mitigated punishment; like in Germany)
- 5-point scale is used
o Complete accountability
o Slightly diminished accountability
o Diminished accountability imprisonment + hospitalization order
o Severely diminished accountability
o Complete non- accountability hospitalization
- Nowadays only 3-point scale is used
- Dutch behavioral experts answer following questions
o Is the defendant currently suffering from the mental disorder?
o Was the defendant suffering from mental disorder at time of crime?
o If so, did the disorder influence the defendant´s behavior?
If so, in what way and to what extent?
What conclusions can be drawn from this regarding an advice concerning the defendant´s criminal responsibility?
- Behavioral exerts develop their own arguments about a defendant´s legal insanity instead of following legal standards
- In practice cognitive and volitional deficits are accepted in courts
Legal systems have different standards for the insanity defence as the latter is largely a normative and not just a medical issue. What are the main differences between the M’Naghten test and the American Penal Code’s test?
Famous example: M´Naghten Rule (1843)
- First definition: pure cognitive/rationality impairment (lack of knowledge of the nature, quality and/or wrongfulness of the act) but NO volitional impairment accepted
strict insanity defense
- Big disadvantage: all or nothing defense
- In addition to insanity defense = diminished responsibility for murder voluntary manslaughter
- How distorted must the knowledge be?
some psychotics may still know that they are “killing”
- Wrongfulness = legal meaning not moral
- Verdict: not guilty by reason of insanity (rare) hospitalization
Alternative definition in USA Model Penal Code
- Person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either
1. To appreciate the criminality of his conduct or
2. To conform his conduct to the requirements of the law
both cognitive and volitional impairment (broader than M´Naghten rule )
8) Could you give some concrete examples of how neuroscience is used in Dutch courts in order to establish an insanity defence (in the Dutch system usually called non-accountability defence) or at least its partial variant of diminished accountability?
In the Netherlands an individual cannot be held responsible if his mental capacities were seriously deficient at the time he committed a crime. Two capacities that are considered key to criminal responsibility:
• Freedom of choosing to act or not to act (related to impulse control)
• Capacity do distinguish right from wrong
Case: Sietske H.
- Kills her 4 newborn children
- Initially explanations were sought on a social level (fear of discovery of her pregnancies
- First instance court: 12 years for infanticide
- Court of Appeal: report psychiatrist + psychologist + neurologist: “personality disorder + frontal lobe syndrome”
no preliminary decision to kill the children can be proven (mens rea) = no murder, only manslaughter
subsequent question: accountability
diminished accountability
- 3 years + entrustment order forensic hospital
9) What are some brain abnormalities that have the potential to drive criminal behavior and are therefore possibly relevant for the insanity defence?
vmPFC - moral cognition
ventral striatum - reward system
Brain abnormalities in areas underlying any of these capacities have the potential to drive criminal behavior.
Frontal lobe dysfunction and criminal behavior: prefrontal deficits in antisocial individuals may predispose them to higher impulsivity and lower self-control. Abnormalities in the frontal cortex do not automatically imply a lack of impulse control.
Limbic system dysfunctions and criminal behavior: limbic system is involved in various functions (memory, emotion).
10) In what way to the different legal insanity standards open or close the door to accepting some (brain) disorders as an excusing factor?
Neuroscientific evidence may serve a diagnostic role for particular mental illnesses and defects. Identifiable states of the brain may be correlated with the source issues underlying insanity defenses and support the reliable inferences on these issues.
11) What do you consider to be a ‘good’ definition of legal insanity, both for scientific and criminal policy reasons?
Insanity defence = judgement not to hold criminally culpable a defendant (who may otherwise have satisfied the elements of a crime) because some mental disease or defect affected the defendant’s cognitive or volitional capabilities at the time of the crime.
12) To what extent could neurotechnological ‘mind reading’ techniques contribute to the assessment of an insanity defence?
Mind reading is a normal phenomenon. Such reading of other people’s minds enable us to predict, explain, mold and manipulate each other’s behavior. Whereas mind reading in neurology may be more therapeutic, in psychiatry it could be more diagnostic. Using fMRI researchers could distinguish between suicidal and non-suicidal youth.
BCI (brain computer interface): detection part can be considered the mind reading component (neurology).
If forensic psychiatrists become able to use brain-based mind reading for diagnostic purposes these techniques could reveal important info about the relationship between the disorder and the crime the defendant is charged with. Evidence might indicate that the defendant suffers from a delusion but also that she delusionally believes that the victim is conspiring against her and intents to kill her.
It is hard to predict how the research will develop from here and when (if ever) techniques will be ready for use in psychiatry.
Concerns:
• Ethics: privacy, psychiatrists tend to use more coercion compared to neurologists.
• Past mental state: observing abnormalities now doesn’t prove that they were present at the time of the crime. Also, not detecting anomalies here and now does not in itself disprove that they were present at the time of the crime.
• A white bear: paradoxical effects of thought suppression produces a preoccupation with the suppressed thought.
