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Neuroscience and Law

Neuroscience is in the midst of a revolution that will have substantial consequences for law, both broadly through the ways it will change society and directly through its immediate applications to the legal system. This revolution is part of the general explosion of understanding about biology, but the unique importance of the brain to human behavior, and hence human society and law, makes the revolution in neuroscience crucial. Neuroethics is the term given to a new field of study that examines the ethical, legal, and social implications of these advances in neuroscience.

Advances from the neuroscience revolution are likely to affect law in at least four major areas: (1) new insights into issues of responsibility, (2) improved abilities to “read minds,” (3) better prediction of future behaviors, and (4) the prospects of human brain enhancement. For each of those four areas, relevant questions include how powerful, if at all, the new technologies will be, how powerful scholars think they are, and whether and under what circumstances society should allow their use.

Neuroscience Tools and Methods

As with most scientific revolutions, the revolution in neuroscience stems from substantial improvements in tools. These include the entire apparatus of molecular biology with its ability to detect and modify individual genes and proteins as well as advances in equipment that allow researchers to read, stimulate, or repress individual neurons. The most important changes, however, are in the area of neuroimaging. Computerized axial tomography (CAT), positron emission tomography (PET), and single photon emission computed tomography (SPECT) scans have all contributed to an improved ability to see inside living human brains, but the most important tool is probably magnetic resonance imaging (MRI), a safe and widely available method of imaging brain structures to a resolution of less than two cubic millimeters.

An offshoot of MRI, called functional magnetic resonance imaging (fMRI), is particularly useful. This method uses a standard MRI machine to detect changes in the levels of oxygenated and deoxygenated hemoglobin in different regions of the brain. The so-called blood oxygenation level-dependent (BOLD) hypothesis links these levels to the extent that neurons in those regions of the brain are activated. In a typical fMRI experiment, the researcher puts a subject into an MRI machine and scans under conditions thought to cause activation of neurons in different parts of the brain—e.g., viewing pictures of human faces and viewing landscapes. Researchers think regions that use more oxygen under one stimulus are involved in the brain's response to that stimulus, resulting in conclusions about the localization of different perceptions, emotions, or cognitive tasks in different parts of the brain. Scholars continue to debate the meaning of these findings and discuss fMRI findings in hundreds of research papers each year.

Free Will, Thinking, and Lie Detection

Some investigators are using fMRI and other techniques to study the neuroscience of decision making, including ethical decision making. This approach, sometimes termed neuroeconomics, has potential implications for issues of legal responsibility. On one hand, some researchers believe that such studies may shed light on the existence or nonexistence of free will. Conclusions that question the existence or scope of free will might have consequences for legal responsibility—not just in criminal law, but also in areas where the law focuses on individual choice. On the other hand, the legal system might well ignore, at least overtly, any scientific challenges to its presumption of free choice. Short of the big question of free will and its implications, neuroscience might also contribute new approaches to more traditional legal questions of capacity. Neuroimaging findings, for example, could serve as evidence about an individual's competence to make a will, a criminal defendant's mental illness, or the execution of juveniles.

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