Neuroscience: Theory and Practice in the Legal and Ethical Perspectives - Term Paper Example

?Neuroscience: Theory and Practice in the Legal and Ethical Perspectives I. Introduction Advances in the science of neurology, specifically in the field of psychopharmacology and in neuroimaging provided men with tools that correlate the psychology of the human brain and to alter the same using neurochemistry. To put it in a nutshell, by intervention at the neural level, it has become possible for us to manipulate how the brain works and ultimately how we think. This notion has stirred commotion more than ever, ethically, and to the field closely related to it, its legal ramifications. There is a growing concern on the topic and various terminologies such as “neuroethics” have emerged in the recent years. In the paper, by Roskies (2002), there surfaced two schools of thoughts regarding “ethics” and “neuroscience”; either to look at it as the “ethics of neuroscience” or as the “neuroscience of ethics”. In the “ethics of neuroscience” we consider a particular host subjected to ethical questions and to the latter, is a discussion on how these advances scientific progress allows man to sustain moral and ethics judgements. In the discussion of the ethics of neuroscience, man is often viewed as dependent agents that are not capable of rationality and voluntary actions but highly reliant on what science could provide for us – in this case the application of neuroscience to criminal systems. In this paper, we will look at the beginning of the concept of neuroscience and its ethical considerations. Along with its development in the recent years, discussion on its implications on a person’s free will is included along with their ramifications to morality in general. And lastly, we will dwell into specific brain mapping technologies and discourse on its legal effects particularly in the criminal law system in the United States. II. Current developments in neuroscience, developmental alterations and criminality Qualifications and deeper characterization of these individuals with anti-social behaviors and bonding the established link with autism, a form of mental disorder or neurological malfunctions could pave ways to the establishment relationship between brain patterns and the science of criminal behaviour (Silva, et. al., 2003). Asperger’s disorder, a variant of autism was manifested by some of the world’s most well-known serial killers, Theodore Kaczynski (the Unabomber) and Jeffrey Dahmer. Dahmer who was convicted for numerous crimes and of cannibalizing young boys were shown to exhibit signs and symptoms of AD as a young boy. These signs include his poor eye contact, his lack of display of facial expressions, his self imposed isolation, his strong distastes to change along with his bizarre obsession to rituals – all of which are classic manifestations of Asperger’s disorder. Like Dahmer, parallel patterns of behavior can be observed in Kaczynky. Even when he was a child, Kaczynsky was a loner and has difficulties in understanding the feelings and emotions of others; more than that, he felt severe grief and misery when exposed to noise – highly similar to those exhibited by children suffering autism (Silva, et. al., 2004). Individuals with Asperger’s disorder (AD) have less impaired social and mental functions and as a matter of fact, they are intellectually superior. Accounts on the childhood years of Kaczynky would identify him as a child with the “intellect” of an adult; and development as an adult would tend to point to a person that has compromised social rapport (Silva, et. al., 2004). Unlike its variant, those persons with AD do not demonstrate abnormal language development, although there are signs of eccentricity. There are no direct links between AD and violence, however, the commonness of AD in many populations elevate the numbers. Applications of understanding brain structure in recent times The studies of brain function and structure have brought numerous advantages in present day crime fighting especially in the area of criminal psychology and exacting evidence for criminal proceedings. Recent development is on the perfection of mind mapping. These mind mapping endeavors have proved to be efficient particularly in exploiting the ability to pull out hidden memories and information withhold by “psychological criminals”, psychopaths, and sociopaths. However this practice has been seriously challenged as a violation of due process, right to privacy amounting to inhuman treatments or torture; and with civil liberties inculcated in the Bill of Rights such as the basic right to life and personal liberty (Silva, et. al., 2004). However, legal bases on mind mapping as an invasion to privacy because it intrudes into the “suspects” mind without its permission and devoid of the opportunity to remain silent. Also, issues on inhuman treatment and abuse are likely to occur resulting to potential abuse perpetrated by prison or police officials. Neuroscience is an established field, however, its ethical considerations have drawn attention by various sector nowadays. The next part of this paper aims to show the meeting point of neuroscience and ethical standards along with its legal bases. III. Neuroethics: The Intersection of Neuroscience and Ethics Modern theories on neuroethics provided several intersections between ethical issues and neuroscience (Illes & Bird, 2006). These intersections as highlighted in the 2002 convention, the Neuroethics – Mapping the Field are: a) the ramifications of neuroscience for notions concerning the self, its agency, and the persons’ responsibilities; b) creation of novel and relevant policies o be made available to the society; c) advancements in the clinical practices in order to provide for therapeutic intervention and lastly d) up-to-date public discourse, consultations and training. In the context of self, agency and responsibility, discussions point to the essence of human nature and a person’s position in society. It deals with the question and the connection between an individual’s biology as basis for his or her personality, social conduct and in decision-making. Based in the theories and the research work of Damasio, Schaffner (2002) hypothesized that the “brain” itself and its observable circuits do not it itself serve as prima facie evidence that it makes morally sound decisions. He stated that what it is merely capable is a “partial reduction”; which is the result of the collection of certain set of initial conditions and succeeding states. These conditions and states together with a wide assortment of factors make up a person’s decision through his or her experiences. With this premises, Stephen Morse, expressed his concern about current neuroscience technologies such as fMRI (functional magnetic resonance imaging) that provides colorful pictures of the brain during criminal investigations, which could prematurely led to the assumption that individuals are “intentional and potentially rational” (Morse, 2006). These findings along with the concerns raised about these technologies should serve as precaution in there use for the punishment of criminal liabilities. In the purview of social policy making issues, several areas have received universal importance as such: a) the use of brain imaging for lie detection; b) provision of cognitive enhancements and c) the marketing of these brain products and other related services in a direct-to-consumer route (Illes & Bird, 2006). Neuroscience is indeed a rapidly emerging field of discipline; hence there is a pressing need to link the study to other areas outside its immediate sphere. Some of these areas that have drawn attention due to its importance are technological transfers, incidental findings based on clinical experiences, and regenerative medicine, among others (Illes & Bird, 2006) Lastly, training and public discourse and consultation on the matter is highly important in order to attend to the public’s need of proper information and the methods of dissemination as well (Illes & Bird, 2006). IV. Neurosciences and its implications on free will and the different facets of morality There is an extensive number of scientists that seeks to understand and shed light into the phenomenon of thinking and on the human brain, in general. In Adina Roskies’ Neuroscientific challenges to free will and responsibility, she pointed out that there is a re-emergence of the concern of free will and neuroscience because the issues and matters that have remained “metaphysical” and have been beyond the reach of science will soon surrender to it. Neuroscience seems to question God-given “free will” and replace it with something tangible and measurable (Roskies, 2002). Neuroscience seems to tell us that we are mistaken with out dominant and initial idea of free will and that we are result of highly intelligible processes happening inside our brain. In the same report, Roskies (2002) further warned us that the “view of ourselves as biological mechanisms should not undermine our notion of ourselves as free and responsible agents”; she argued that moral responsibilities should not be anchored whether we know more about the brain or less. However, she thoroughly discussed as well that an angle of this dilemma could be due to the perspective we have over our concept of “free will”. She emphasized that we have high regards over the concept of free will because it translates into moral responsibilities and the implications when people come to believe that we are not free individuals but pre-programmed by chemical processes in the brain could be disastrous (Roskies, 2002). V. The science of fMRI and its legal considerations on due process of law and other civil liabilities The neuroscience is a rapidly shifting way of testing the “liability” of a suspect. One of the most prominent tools of modern science is fMRI or the functional magnetic resonance imaging or simply called brain scanning. Using fMRI, one is said to be able to determine the parts of the brain which performs a specific cognitive task (Schauer, 2006). The developers of the fMRI technology arrived at a conclusion that this technology when advanced further can tell if the person is telling the truth or not, stressing the forensic potentials of the technology – in short, a form of brain mapping (Schauer, 2006). Like physics, technology and legal bases are continuing debate of the ramifications of an untested technology and how they fit to civil rights and liberties. A lot of pioneers of the technology has been waving that neuroscience-based evidence surpasses the rigorous standards of proof set by court nowadays. However, at the other side of the coin is the pressing demand for a moratorium in courtroom litigation to admit these fMRI results as evidence until and unless there is an established federal agency that would categorize the reliability of these evidences based on sound scientific and legal standards (Schauer, 2006). It has been pointed out that with the lack of proof that neuroscience-based evidence gathering reach the threshold of a reputable standards, then there is a possibility of violating ‘legal rights”, for they are yet to be recognized, then it is tantamount to subjecting “suspects” to a mere research topic, than as a to a concrete legal tool. Even important science publication such as Nature Neuroscience expressed their apprehension that fMRI as a form of legal tool for brain mapping and lie detection is not yet “prepared” for the real world. At the extreme part of the spectrum, even scientists have argued that fMRI is a poor science and can only construct, more than anything else, inadmissible evidence at the expense of the person’s civil liberties (Nance, 2003). The argument on poor science is extremely based on statistical standards where the consistencies of these experiments are questionable on validity issues (Schauer, 2006). Scientific standards versus legal standards Despite of the flaws in science and in technologies that claim to provide efficient tools in aid of law, enforcement, this is just one part of the scenario rather, it is more than just the validity of its disposition in law (Nance, 2003). A closer look at the frames of legal system particularly the criminal laws, is that the intent is not simply to put criminals in jail rather it is more inclined to social reformation. In one of the symposium held about brain mapping, lie detection and neuroscience is the concern that time may come, that with the prevalence of the use of these technologies, a “warrant” to search one’s brain would be required – this is to underscore the concerns those at the different sides. Looking at in the language of the law and on how the framers of our Constitution sought to safeguard our civil rights, therefore, the notion of “warrant to one’s mind” largely depends on the provisions of the Fifth Amendments on the right against self-incrimination. Brain mapping, in the purview of our Constitution, has been considered as the admission of physical and involuntary testimonies (Nance, 2003). Granting that a police person saw somebody killed someone that police office can not require to talk even if he is afforded the Miranda doctrine. It is therefore obnoxious to imagine that a person can be compelled to talk to a neural evaluation. At this juncture, when a “testimony” is gathered based from involuntary fMRI, would require any court (that admits them) that the judgement of the US Supreme Court regarding these results as testimonials and due to the protection vested by the Fifth Amendment (Schmerber v. California, 1966). Also, when it comes to brain-scans and brain mapping, whereas a suspect’s testimonies using these technology will not even satisfy proof beyond reasonable doubt, also, if the fMRI gives a favourable result, the relevant question would be if that person can establish innocence using this technology. Brain-mapping technology and risks of misuse Since juries unlike judges, are untrained how to demarcate between a nuisance evidence that those that would guarantee conviction or prove the innocence of a suspect. In this premise, many critiques of neuroscience argued that the persuasive nature of this technology would tend to have a greater weight in the deliberations that the more reliable evidences presented in court (Schauer, 2006). Using the current and available technologies of brain mapping alone, without thorough evaluation of its precision would tend to mislead justice rather than to serve it (Schauer, 2006). Limitations of science and technology: the legal perspective This is an overall evaluation of the indiscriminate use of unsound science in the field of criminal law and forensic evidence without regards to the various provisions of the law. The admissibility of evidence and the use of technology is not the question here; crime prevention would have been impossible without the help and utility of science. But a clear demarcation must be set, that standards for legal evidence must not be left to the interest of many scientific communities but to the legal institutions, first and foremost. For example, it is easy for scientists to decide (based on accuracy and precision) to conclude based from results of their experiments. However, in the eyes of law and in the significance of justice, such accuracy and precision is placed at a completely new level; whether if it is enough to put someone to jail, to set an innocent free, to validate an injunction or whether or not damages is to be awarded. At another standpoint, the scientific method relies mainly on methodology and replication, among others. However, a courtroom proceeding is not a scientific determination. If criminal law is to be derived from this premise, means that law draw legal bases from science, which is highly erroneous (Schauer). Privacy, a basic civil rights is being constantly threatened by emerging technologies, such as genetics, DNA analyses and now, by neuroscience techniques such as brain mapping. In a nutshell, it is not a person’s best interest to have certain information about him or her made available to others, with or without his permission. Using these technologies would mean gathering results, of which we are uncertain what kind of personal information it would point us into. In connection with this, it is a notion, that the public is more inclined to be persuaded by colourful scans rather than the facts presented, say, in a particular criminal case. There are often swaying conclusion that the “brain” does not lie, reflective of our lack of profound understanding to the numerous layers of processes as well as the statistics of these results – whether or not they are to be considered valid and indicative of the facts given (cite). VI. Recommendations Measuring the brain and the provision of colored images and its connections to established facts is indeed a wonderful hallmark in science. However, it is wiser to admit that this science is not mature and developed enough to meet the rigorous standards set in our laws, especially when we are dealing with highly protected civil rights like protection against self-incrimination, privacy and due process. Based on the various studies I have come across with this research paper, I can conclude that brain-based measurements and brain mapping, is an advantage mainly in revealing a person’s psychological traits and states above other methods of evaluation; it can be said that they are more sensitive in creating behavioral indices than the traditional ways. However, as reliable as they are in these standards, they fall short in meeting the rigorous and exact yardstick of admissible evidence in court to affirm and prove the guilt of a person. In the perspective of criminal law and due process, I would say that neuroscience would still have a long way to go. In the comprehensive study of Schauer, he highlighted the intersection of legal standards and what the scientific community has already established. To reiterate what I have previously cited, there is a pressing demand for a moratorium in courtrooms litigation in admitting these fMRI results as evidence until and unless there is an established federal agency that would categorize the reliability of these evidences based on sound scientific and legal standards (Schauer, 2006). There is a tendency that reliance to these brain- mapping results, despite the lack of intelligent and tangible standards set by the legal community on several brain-mapping techniques are set, would incriminate and put to prison an innocent person. It has been pointed out that with the lack of proof that neuroscience-based evidence gathering reach the threshold of a reputable standards, then there is a possibility of violating ‘legal rights”, for they are yet to be recognized, then it is tantamount to subjecting “suspects” to a mere research topic, than as a to a concrete legal tool (Schauer, 2006). It is highly recommended therefore that 1) more and deeper studies regarding brain-mapping utilizing sound statistical science is made and b) that a federal agency is established to assure that such meets the benchmark required by the law. Conclusion Various researchers over the years have established the connection between brain structural damages and criminal activities, amongst the psychopaths and sociopaths. Often is has been seen that brain injuries caused during accidents may permanently damage the frontal lobe region causing a perfectly normal individual to transform into a psychopath; while such structural damages may also be affected by various socio-economic factors that may also create a sociopath. Brain damages in the susceptible regions (as shown in the various figures within the study), cause behavioural changes where an individual starts showing more violent and aggressive behaviour, losing the cognizance of which behaviour is socially accepted and which one is not. From the above discourse, it can be easily derived that the structural impairments in the human brain can be closely associated with the activities of a psychopath or a criminal, thus, making the study of a human brain, an essential part of the science of criminology. Given this premise, psychological sciences and neurology sough to set up a scale in measuring the “criminal brain”; hence the developments in brain mapping technologies. But, along these developments are serious ethical and legal issues involved. Initially issues on free will and the criminal were hot topics for discourse, until it evolved into its ramifications in criminal science and in incriminating a person by proving its guilt using brain scans. References Cleckley, H. (1976). The mask of sanity. St. Louis: Mosby. Damasio, A. (1994). Descartes’ Error. New York: Putnam. Dolan, R. (1999). On the neurology of morals. Nature Neuroscience, 2, 927–929. Illes, J. & Bird, S. (2006). Neuroethics: a modern context for ethics in neuroscience. Trends Neurosci. September ; 29(9): 511–517 Lykken, D. (1995). The antisocial personalities. New Jersey: Routledge, 3-66. Morse, SJ. (2006) Moral and legal responsibility and the new neuroscience. In: Illes, J., editor. Neuroethics: Defining the Issues in Theory, Practice and Policy. Oxford University Press; p. 33-50 Nance, D. (2003). Reliability and the Admissibility of Experts, 34 Seton Hall L. Rev.. 191, 203 Roskies A.(2020) Neuroethics for the new millennium. Neuron, 35:21–23. Schaffner, K. (2002) Neuroethics: reductionism, emergence, and decision-making capacities. In: Marcus, SJ., editor. Neuroethics: Mapping the Field. The Dana Foundation Press; p. 27-33. Schmerber v. California, 384 U.S. 757, 761 (1966) Schauer, F. (2006). On the Supposed Jury-Dependence of Evidence Law, 155 U. PA. L. REV. 165, 172–75 Schauer, F. CAN BAD SCIENCE BE GOOD EVIDENCE? NEUROSCIENCE, LIE DETECTION, AND BEYOND. Cornwell Law Review. Vol. 95:1190-1219. Silva, A., Ferrari, M. and Leong, G. (2003) Asperger's disorder and the origins of the Unabomber, American Journal of Forensic Psychiatry, Vol. 24, No. 2. Silva, A., Ferrari, M. and Leong, G. (2004). A neuropsychiatric developmental model of serial homicidal behaviour. 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