Neuroimaging in the courtroom: Normative frameworks and consensual practices

Transcription

1 Neuroimaging in the courtroom: Normative frameworks and consensual practices Dorothee Horstkötter, Carla van El, Maaike Kempes, Jos Egger, Thomas Rinne, Toine Pieters and Guido de Wert Neuroimaging is increasingly playing a role in courtrooms where judges take into account representations of the suspect s brain as evidence to determine their accountability and the sentence. Berlin (in press) presents an intriguing and timely overview of relevant developments and challenges in this regard. Focusing on issues related to criminal behaviour and criminal prosecution, we, however, have a twofold concern with his arguments. First, after having pointed out current controversies concerning the use of neuroimaging techniques, Berlin concludes that future scientific discoveries will solve current conflicts (p. 13). To our opinion, however, the mere accumulation of scientific findings will not suffice. normative framework that guides decision making is needed. Second, Berlin assumes that in the upcoming decades the neurobiological and legal communities will continue to struggle with issues bearing on accountability and punishment (p.6). Unfortunately, it remains open how this struggle might evolve and under what circumstances it could lead to more satisfactory applications. Addressing this challenge, we will present a plan to structure and approach this struggle. NORMATIVE GUIDANCE OF SCIENTIFIC APPLICATIONS The past decades have been characterized by an overwhelming interest in the biomedical foundations of criminal behavior in general and the genetic, neurobiological and neurophysiologic aspects of juvenile delinquency and youth violence in particular (van Goozen et al. 2007). It has been shown that groups of offenders differ from non-offenders regarding genetic polymorphisms, structure and function of the brain, psycho-physiological response to stress, and in gene-brain-environment interactions. Even though much is still unknown and scientific evidence is far from conclusive, these developments trigger high hopes and expectations concerning the development of more accurate methods both for early detection of children at-risk and for more effective forms of early prevention and treatment.

2 Consequently, these methods are thought to lead to more accurate risk estimations and accountability assessments of suspects and thereby, ultimately, to the increased well-being of juveniles and defendants as well as improved public safety. At the same time, however, biomedical approaches have also activated serious concerns about potential societal and ethical pitfalls, caveats and dilemmas (e.g., Singh & Rose, 2009). They have been suspected to be reductionist and deterministic, lead to discrimination, labeling and stigmatization of those at-risk, entail dangers of false positives, and increase social control and exclusion, or entail undue medicalization. Regarding these issues, Berlin quotes Raine at length (p.7). Unfortunately, he does not comment on this quote or puts it into the perspective of his overview. Therefore, we proceed from the assumption that Berlin approves what is said by Raine. Having stated that it is growing harder and harder [ ] to avoid the mounting evidence, Raine, and with him Berlin, argues that a more profound understanding of the early biological causes of violence can help us take a more empathetic, understanding and merciful approach (p.7). We, however, consider this attitude as unclear and naïve. This line of reasoning assumes that these insights will mainly, or exclusively, be invoked for the sake of the well-being of defendants and young people. This, however, is not necessarily the case. As mentioned, corresponding interventions might also entail ethical caveats and dilemmas and hence run counter to the interests of those concerned. Moreover, provided that antisocial behavior typically gets defined as behavior that harms third persons, biomedical findings could likewise be invoked to primarily improve public safety. Theoretically, this could comprise intrusive screenings, imposed prevention and intervention measures, or potentially even preventive detention. The question whose interests ought to prevail in cases of conflict and how to balance various interests in a proportionate way, however, is an ethical and political one, not a scientific question. Therefore, further scientific research alone will be insufficient. A normative framework is needed that can determine legitimate applications of scientific evidence (Horstkötter, Berghmans, & De Wert, in press). To this end, not only more scientific theory and research is needed, but also more ethics and social science research is urgently called for to understand what might be the prerequisites for and consequences of using neuroscientific findings in treatment, assessment and court-settings. Thereby, we could preclude inadequate and untimely applications, yet prepare for future adequate uses of neuroscientific findings. CONSENSUAL PRACTICES AND INTERDISCIPLINARY COLLABORATIONS TO ENABLE MUTUAL LEARNING

3 Berlin discusses how neuroimaging techniques are used in courtrooms despite significant differences in opinions among experts on their validity. Apparently, he relies on potential future scientific findings that today are not even imaginable (p.13), yet that, once available, will solve current conflicts: as the neurology of criminal behaviour becomes increasingly better understood, courts may well become increasingly disposed to consider the extent to which certain convicted (sic!) criminals may be less in charge of their behaviour than others (p.6). That leaves us in the dark how to proceed for the time being given relevant scientific limitations and actual courtrooms conflicts. For the reasons explained in the above, we feel it is crucial to realize that now is the time to develop relevant normative standards and to develop a plan on how to deal with neuroimaging and other kinds of genomics and neurobiological information in the justice system and with corresponding courtroom conflicts. First, scientific evidence regarding neurobiological deficits in offenders is rather new. Experts in the field should reach consensus on how these scientific findings in groups can be translated to the individual to obtain clinical relevance. Second, current knowledge among judges, attorneys and prosecutors about the interpretation of neuroimaging findings is very limited. Therefore, they may overestimate the importance of neurobiological deficits for actual behaviour. To address this, we suggest that training of judicial actors in understanding the possibilities and shortcomings of neuroimaging is urgently needed. Third, the adversarial courtroom settings that Berlin rightly identifies as a complicating factor in reaching consensus on interpretations of neuroimaging could be evaded by creating neutral spaces for scientist-practitioner discourses. In preparing for the future, professional organisations of forensic psychiatrists should bring together professionals working for the prosecution and the defence and create platforms for enabling mutual learning. In the end, both parties are interested in the same question and both are seeking for answers what neuroimages can or cannot reveal in specific cases. Fourth, scientific findings increasingly stress the interaction between neurobiological processes, their underlying genetic mechanisms and environmental aspects in influencing psychological conditions and actual behaviour (Forzano et al., 2010; Popma & Raine, 2006). Neurobiological processes do not directly lead to actual behaviour and are only one among many risk factors that can lead to criminal behaviour. As a consequence, we suggest that to help solve pieces of the complex puzzle of the diagnosis and prognosis of the behaviour of a

4 suspect, the various disciplines should join forces. That is, efforts should be directed at integrating neuropsychological test results, neurobiological markers and neuroimaging with the findings of more traditional forensic psychological and psychiatric investigations. To this end, the continuous organization of interdisciplinary collaboration is crucial (Tuinier et al. 2009). Fifth, based on these processes of interaction between different forensic and scientific disciplines to improve understanding of the relative value of neuroscientific evidence we should develop case-by-case standards and guidelines as to what kind of material in what specific cases could be used as corroborating evidence in court (Jones et al 2009). CONCLUSION In order to introduce neuroscience findings in forensic practices in general and neuroimaging findings in courtroom-settings in particular, a variety of steps have to be taken. Ethics and social science research has to develop a normative framework that can determine the conditions and limits of use. Moreover, we recommend to: strive for consensus on the translation of group findings to the individual; train judges, expert witnesses, and lawyers; develop neutral spaces to allow for exchange of views among forensic psychiatrists; promote interdisciplinary exchanges; and finally, establish standards for the use of neurobiological information in court in particular cases. Berlin, L. (in press). Neuroimaging, expert witnesses, and ethics: convergence and conflict in the courtroom. American Journal of Bioethics Neuroscience. Forzano, F., Borry, P., Cambon-Thomsen, A., Hodgson, S. V., Tibben, A., de Vries, P., et al. (2010). Italian appeal court: a genetic predispostion to commit murder? European Journal of Human Genetics, 18, Horstkötter, D., Berghmans, R., & de Wert, G. (in press ). Early prevention of antisocial behavior (ASB): A comparative ethical analysis of psychosocial and biomedical approaches. BioSocieties. Jones O.D., Buckholtz J.W., Schall J.D. Marois R. (2009). Brain imaging for legal thinkers: A guide for the perplexed. Stanford Technology Law Review 5. Popma, A., & Raine, A. (2006). Will future forensic assessment be neurobiologic? Child and Adolescent Psychiatric Clinics of North America, 15, Tuinier, S., Verhoeven, W., & Egger, J. (2009) Behavioural neurobiology of aggresion: From perception to action, in C. Quin & S. Tawse, Handbook of aggressive behavior research, Nova Science Publishers. Singh, I., & Rose, N. (2009). Biomarkers in psychiatry. Nature, 460, van Goozen, S. H. M., Fairchild, G., Snoek, H., & Harold, G. T. (2007). The evidence for a neurobiological model of childhood antisocial behavior. Psychological Bulletin, 133,

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