Op-Ed: We need to separate the neuroscience hype from the reality

Posted by Denise Abou Hamad on 02/12/2015 11:26:31

Witten by Dr Sascha Callaghan and Dr Allan McCay.

Originally published in Sydney Morning Herald 30/11/15.


Oregon serial killer Dayton Leroy Rogers was recently sentenced to death for the fourth time, after a strongly argued case that the sentence should be reduced to life in prison. 

Rogers' lawyer argued that scans indicated damage to parts of his brain could have caused his manic killing sprees. The thrust of the argument was that brain damage reduced his responsibility for the crimes.

The Rogers case is part of an emerging trend for neuroscience evidence to be brought to court to help the defence in criminal trials.

The use of neuroscience in court is not entirely new. Rogers has made similar claims for some time. However, there are reasons to believe neurolaw cases are increasing in the US and Australia.

In 2011, a member of the Tasmanian Legislative Assembly, Terry Martin, was found guilty of child sex offences. Neuroscience evidence made a major difference to the final outcome. The sentencing judge accepted that medication for the treatment of Parkinson's disease had led to Martin's compulsive sexual behaviour and that this was a significant mitigating factor.

In light of the expert evidence, Martin served no further time in jail.

In civil matters, neuroscience is assisting personal injury claimants seek compensation for pain and suffering. Courts are now looking to neuroscience evidence for "proof" that injuries such as pain or psychiatric illness are not "all in the plaintiff's head". 

Earlier this year, brain research into post-traumatic stress disorder helped nurse Karen Casey to recover compensation after a terrifying plane crash that left her with multiple injuries and debilitating PTSD.

Under international law compensation for aviation injuries need only be paid in respect of "bodily injuries" and not purely mental or emotional injuries. Historically, PTSD has been regarded as a mental injury, but Casey's doctors referred to neuroscience evidence showing that PTSD occurs alongside changes in the brain. 

On this evidence, Justice Monika Schmidt of the NSW Supreme Court decided that Casey's PTSD was "not merely the result of an injury to her mind" but that it also "involves an injury to her brain".

Casey is the first Australian to recover damages for PTSD as a bodily injury. 

Some commentators are now suggesting neuroscience will revolutionise the legal system, that courts will become concerned with managing those with malfunctioning brains, and that we will cease to care about "outdated" notions such as blame and deserved punishment; and that courts may eventually have access into our private thoughts, with sophisticated lie detection technology.

But is this just science fiction?

A research collaboration between Macquarie University and the University of Sydney aims to answer these questions. The Australian Neurolaw Database aims to separate neurolaw hype from reality. We are examining what Australian courts are doing in response to evidence derived from neuroscience.  

Cases in the database, such as Martin's and Casey's, clearly demonstrate the ethical and legal significance of neuroscience evidence in some court decisions, although it does appear that judges are taking a reasonably cautious approach. 

Traditional evidence is still the gold standard for the courts. For now at least, what people have done and said remains more persuasive than scans. 

Important policy questions remain for the future.Do we allow every new technology into court? Should citizens have a right to mental privacy as pupil-scanning and other technologies become more prevalent? Should evidence gathered about what we are thinking and feeling via pupil and skin temperature data be excluded from courts? Should neuroscience-based dangerousness tests be used to determine whether prisoners should be granted parole?

Very soon policy-makers will be able to look to the Australia Neurolaw Database to help develop answers to these difficult questions.



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