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30 Supremo Amicus [538] (2022)
Implications of Neuroscience on Criminal Law

handle is hein.journals/supami30 and id is 538 raw text is: SUPREMO AMICUS f VOLUME 30 1 AUGUST, 2022 ISSN 2456-9704 IMPLICATIONS OF NEUROSCIENCE ON CRIMINAL LAW By Ana-Marija Rus From University of Ljubljana, Slovenia The human mind is crucially dependent on its biological basis, the brain, and considering our moral judgments are fixed on our decisions and actions, one would expect that information concerning the neural footings of the human decision-making process and action to have a significant implication on our legal judgments and therefore law.1 2 The relationship between law and neuroscience, with the brain lying in as the correlative factor, is therefore somewhat apparent, as it possibly offers a more comprehensive and accurate approach to the legal phenomena and possibly puts forward more conclusive evidence for the legal process, thus granting a fairer justice system.Anything that leads to a better, deeper understanding of people s minds 1 Pernu and Elzein, From Neuroscience to Law: Bridging the Gap (2020), p.1 2 Supposing that the law is not valuable per se, as it is instrumentally used to regulate human behaviour in order to attain justice, and for this purpose, we need an in-depth understanding of human action. 3 Petoft, Neurolaw: A brief introduction (2015), p.54 4 Professor by courtesy of Genetics, Stanford School of Medicine; Director, Center for Law and the Biosciences; Director, Stanford Program in Neuroscience and Society; and Chair, Steering Committee of the Center for Biomedical Ethics. 5 Chen, Neurolaw (2009), available at: https://law.stanford.edu/stanford- lawyer/articles/neurolaw/ 6 S. and Marper v. the United Kingdom, § 105. 7 Modern neuro-technology, the study of a brain in some form in quasi criminal proceedings can be traced plays right to the heart of human society and culture and as a result, right to the heart of the law, says Henry T. Greely;4 The law cares about the mind.5 Even the Grand Chamber of the European Court of Human Rights (ECtHR) finds it beyond dispute that the fight against crime depends to a great extent on the use of modern scientific technologies of investigation and identification.6 Nonetheless, the use of neuroscientific evidence in the courtrooms can be traced back to 19407 when an EEG was first used in an Americ n courtroom in a case involving a defendant with epilepsy.8 By the same token, in the criminal case of Florida v. Grady Nelson, the defendant provided an EEG scan as evidence of functional abnormalities in their brain in an attempt to mitigate a death sentence.9 Similar in practice, there is the infamous insanity defense from the English case law with its core in the M'Naughten rule.10 back to ancient Egypt and ancient Greece. (Shen, The overlooked history of neurolaw (2016)) a Shen, The overlooked history of neurolaw (2016), p.677 9 Additionaly, there is the case of The United States of America v Lorne Allan Semrau. Where fMRI evidence was offered in court in a failed attempt to prove that the defendant did not intend to defraud the mighty US government. 10 The application of the rule requires testing that a perpetrator does not know that their action was wrong, as they are unable to understand the moral nature of their actions due to cognitive disability. However, the M'Naughten rule tends to disregard the idea that is plausible that a perpetrator retains their cognitive abilities to discern the morality of their actions, while simultaneously being unable of regulating it, which has proved to be rather problematic in courts. www.supremoamicus.org PIF 6.242

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