I can’t help but get excited when my former world (science 4 lyfe) collides with my new field (law… I can’t be so excited about this one because… exams). That’s why the interview below peaked my attention.
I will preface this with a comment that science, like most things in life (and law) is inherently uncertain. Neuroscience, as you can imagine, is extremely complex. Not only are there many vessels, types of matter, electrical activities, etc. going on in your brain but the technology required to measure and observe these things is also incredibly complex. When you increase the complexity and the number of variables you are measuring, generally the uncertainty also increases. My preface is essential because although the technology that Dr. Reid Montague speaks of in his interview sounds fascinating and exciting and could change EVERYTHING for courts around the world… it is still in its preliminary stages and it will probably be a long time before it can be used practically by the criminal justice system. That being said, it is no reason to ignore it!
To summarize, Dr. Montague’s work involves distinguishing between the various mental states required by criminal offences (Mens Rea) through brain imagining. The idea is that if you could toss someone into an fMRI machine to discern whether they committed an offence with intent, knowledge or recklessness then it would take away a lot of the guesswork and inference drawing currently required by the courts.
As an aspiring lawyer this is fantastic news. Not even just in practice, but also in law school! Instead of Professor Kiyani trying to convince me that recklessness can be substituted for knowledge and knowledge can sometimes be substituted for intent through a common sense inference, he might say, “it was detected, with 95% confidence, that _________ offender had the necessary intent when committing the offence.” As I mentioned above, scientific uncertainty presents its own issues. However, this could be an incredible advancement in the court system. Even if the information gathered through fMRI imaging could supplement the findings of fact by the court, they might be able to make a more informed decision.
Looking at this big picture, significant resources could also be saved through use of this technique, if found to be precise and accurate. If the accused were tested when they were charged for the offence, both parties would have a better idea of how the case might go and the accused could make an informed guilty plea. Additionally, Crown’s could spend less resources in trying to build a case around the MR of the offence and either save those resources or use them elsewhere such as proving the Actus Reus.
I also see major hurdles for the use of this type of technology in courts. Scientific uncertainty is not well understood by laypersons, and understandably so. I spent the past two years trying to figure out statistics and I’m still an idiot. Sometimes people rely too heavily on scientific evidence despite the fact that there is uncertainty coupled with significant room for human, mechanistic and systemic errors. On the other hand, people can also toss away relatively certain scientific evidence just because scientists have such a high standard of proof (generally 95%, and sometimes 99%). Compare this with courts where, in civil suits anyway, we weigh things on a balance of probabilities, which is only 50%! Thus, when scientists present a more “hesitant” picture of their findings, people may assume that it’s bogus. Why do you think half of Americans do not believe in climate change? They view scientific uncertainty as a reason to rule out something they do not wish to believe. My point is, it could go either way and often we won’t know which way it is going until it is too late.
In sum, it is important to keep an eye out and be open to the use of new technologies in criminal cases. However, thorough research should be completed and techniques tested prior to acceptance by the courts to ensure that there is sufficient certainty associated with the evidence. Finally, the courts must obtain experts who can explain the uncertainties associated with the evidence to a lay audience so that judges and juries can make informed decisions based on the information they have in front of them. I know I’ll be keeping an eye on Dr. Montague’s work in the future to see where it leads…
Featured image from: http://www.differenttruths.com/opinion/contestations-between-science-and-law-in-the-legal-system-i/