NEUROSCIENCES IN COURT: DANGER OR PROGRESS?
Translated from French by Rudy Andria.
New methods allow us to prove the reliability of the defendant’s statements or to assess his level of responsibility.
Do the modern techniques of brain imaging, and more generally neurosciences, have a place in criminal proceedings? In France, the issue remains sensitive, for both reliability and ethical reasons. A note prepared by the Centre for Strategic Analysis and published on September 11th, 2012 sheds light on the subject.
Interview with the author, Olivier Oullier, professor of cognitive psychology at Aix-Marseille University.
Le Point.fr: Are neurosciences, and especially magnetic resonance imaging (MRI) techniques increasingly present in court?For what purposes are they used ?
Olivier Oullier: First of all, it is important to distinguish between anatomic MRI, which, thanks to a still image and functional MRI, studies the brain structure. This, in turn, will make it possible to see the brain in “action”. The first technique, which is already old, is regularly used by forensics, also in France. It allows us to state for example that such individual has suffered a head injury. It is also useful as a complement to psychiatric expertise, as a tumor may cause a malfunction of the brain and cause deviant behavior without the individual’s being responsible for the deviance.
What can it bring to justice?
Consider the textbook case of a doctor who suddenly discovers he has pedophilic orientations he had never had before. He will tell himself something is wrong with him and will decide to get an MRI. It will be found out he is developing a tumor which is compressing a part of the brain that regulates these impulses. The presence of this tumor is causing the emergence of pedophilic behavior. So, in his case, an operation and a reabsorbtion of the tumor will make his pedophilic behavior disappear. No way to do the deed, in the present situation but imagine that were the case. The person’s responsibility will be discussed in terms of what we know about the tumor’s effect on the impulses’ regulation. The Penal Code makes it clear that there are elements the judge can decide to use or not to regulate the pain and the pain penalty.
To what extent may this kind of element also find its place in the context of psychiatric records?
It may be brought to the file by the consultant psychiatrist and may be taken into account by the judge when voicing an opinion on whether the person had all his faculties or not ,at time of fault. Indeed, a person cannot be judged and held responsible if he had all his faculties, at the relevant time. The technique of anatomic MRI poses no real problems, insofar as it is something reliable and it is only a piece of information, among others, to support a case file.
And what about functional MRI?
It is much more difficult … It is used in some countries (notably the United States and India), mainly for lie detection . However, functional MRI, a great tool for scientific and medical research, does not, at present, have the necessary conditions of reliability to be used as evidence in court.
Why? Isn’t it based on sound scientific knowledge?
The strength of scientific knowledge is relative. These uses are based on articles which have been published from laboratory experiments. Studies of lie detection are carried out with people installed in a scanner, a cramped and uncomfortable space where they are asked to perform certain tasks. These are often students or, at least, people who are not suspected of anything. However, there is a difference between an individual lying in court, while spending a part of his life in prison and an individual lying within an experiment, in which he is being told “you can see two cards, do you think there is an ace of spades?” The context is totally different. Yes, there are scientific studies published in very good reviews, but the results cannot be generalized. The results are all the less generalizable as there is no one single type of lie. There are as many ways to use our brains to lie as there are many types of lie.
Skip a fact, modify a memory, create a scenario from scratch … In addition, someone may very well lie with the feeling of the truth. An impoverished mother, who stole food to feed her children, may sincerely believe that she is not a thief. Similarly, a terrorist may think he is a warrior, a fighter, and nothing else.
So do these techniques have significant risks of veering off course?
No more than any other scientific techniques used in a trial. Science has certain objective characteristics in its method, but scientific interpretation is something subjective, like the law elsewhere … Abuses that arise with neuroscience awaken imagination, because we’re talking brain and wrongly think that all the answers are there. But you can have exactly the same problems with fingerprint detection … From the moment you have a human expert who will come and voice an opinion, there will be interpretation and that may be a problem. The only difficulty really specific to neuroscience is beginning to infer that we are dealing with a psychopath or a pedophile, just because that part of the brain is malfunctioning. Such a deduction is impossible in the present state of things.
Are there law developments in France needed to guide their use in trials?
At first, it should not enact prohibition, because it could deprive justice of something that may shed some light in 10 or 15 years’ time and it is important not to interrupt the investigation in this area. Then, you have to train the judges and participants of the trial, namely, see what types of information they can learn from these techniques, because MRI of the brain can make a strong impression on an audience. We finally ask, in our report, for a moratorium on the use of functional MRI in courts, because in the current state of the law, the door is wide open. Machine reliability will increase, but what will remain in question is the relation between brain activity and behavior, because they are the result of our brain activity in a physical environment, with a socio-economic frame and a determined history. We can speak of a greater propensity to a particular behavior, but it will never be proof of acting out.