Opinion Psychoanalysis

Behavioural Neurology: At the Crossroads of Law and Neuroscience – I

Spread the love

Reading Time: 4 minutes

This in-depth research article, in six parts, by Prof. Ashoka, reviews the current intersection between the law and neuroscience and then explores and analyses neuroscience’s use in evaluating the harm caused by prolonged solitary confinement. Here’s part one, exclusively for Different Truths.

Possible uses of neuroscience in the law go far beyond criminal cases, however. Neuroscience has the potential to bridge the divide in law and culture between physical and mental injuries. For instance, it could enable judges to allow plaintiffs to recover damages in tort actions where mental harm may be uncompensable or disbelieved, but provable brain damage can be viewed as a physical injury.

Neuroscience might be useful in helping judges to understand the mental harms that government action can inflict and to determine whether the infliction of mental harm…rises to the level of a constitutional violation.

Brain damage can be structural, such as a tumour or diminished volume of a particular brain region, and/or it can be functional, such as a characteristic change in the activity of a brain circuit implicated in certain conditions, including severe chronic stress or depression, chronic pain, or loss of cognitive function. So, too, neuroscience might be useful in helping judges to understand the mental harms that government action can inflict and to determine whether the infliction of mental harm, intended or not, rises to the level of a constitutional violation.

This is already happening in one area: expert neuroscience evidence is being mustered to support claims of extreme and long-lasting, if not permanent, mental harm in constitutional challenges to prolonged solitary confinement, a disciplinary practice used in many state and federal prisons.

In the class action case of Ashker v. Governor, challenging the solitary confinement of more than one thousand prisoners at Pelican Bay State Prison in California, the plaintiffs submitted expert neuroscience testimony in support of their Eighth Amendment claims that such prolonged confinement constitutes cruel and unusual punishment.

Thus, in the class action case of Ashker v. Governor, challenging the solitary confinement of more than one thousand prisoners at Pelican Bay State Prison in California, the plaintiffs submitted expert neuroscience testimony in support of their Eighth Amendment claims that such prolonged confinement constitutes

PC: CommonDreams.com

cruel and unusual punishment. This article reviews the current intersection between the law and neuroscience and then explores and analyses neuroscience’s use in evaluating the harm caused by prolonged solitary confinement.

Prima facie, the connection between the law and neuroscience may seem surprising; the “Law and neuroscience seem strange bedfellows.” As legal scholar David Faigman has noted, there is a “fundamental divide between the fields of neuroscience and law,” an observation that could also be made about the law and other fields in mainstream science. Neuroscientists study the brain and are generally unconcerned with legal questions, while lawyers, as smart as they may be, usually know nothing about how the brain works and are not troubled by their ignorance. Yet the law and lawyers are ultimately concerned with regulating human behaviour, and issues of intent are part of the grist in the legal mill. Understanding the brain is central to both the law and neuroscience; thus, the burgeoning interplay between the two fields should not be surprising.

Perhaps the most salient source of tension between the two fields has to do with the differing goals of the scientist and the lawyer.

Perhaps the most salient source of tension between the two fields has to do with the differing goals of the scientist and the lawyer. The scientist studying the brain is ideally a neutral analyst, an empiricist who pursues evidence to generate a better understanding of brain function regardless of pre-conceptions. The lawyer is ordinarily not neutral, but rather is an advocate for his or her client’s interests. A scientist is only supposed to draw a definitive conclusion when findings are replicable to a very high degree. Yet lawyers and judges are seldom in a position to withhold judgment. They can, and often must, evaluate evidence bearing on a claim, even if it is not conclusive. Moreover, in civil cases, the usual standard of proof is not the scientific standard, which demands substantial certainty, but rather the preponderance of the evidence, which translates into “more likely than not.”

PC: VerywellMind.com

This difference leads to tensions that bear on both the potential uses and the need for caution when using neuroscience evidence in legal contexts. Lawyers would like to present favourable neuroscience evidence as dispositive, yet scientific norms specify that neuroscience claims should not be over-sold. This does not mean that the neuro-scientist cannot or should not advocate positions based on the science as we know it now, even if current science provides only strongly probable but not scientifically conclusive confirmation of a relationship. It does, however, mean that the neuroscience expert must admit, and indeed should proactively bring forth, the existence of scientifically sound conflicting evidence or underscore areas where current knowledge is either lacking or too weak to support strong conclusions. In these circumstances, neuroscience advocacy is most likely to be relied upon by courts when its conclusions are consistent with common sense.

(To be continued)

 Photos from the Internet


Spread the love

Leave a Comment

Your email address will not be published.

You may also like

error: Content is protected !!