Neuroscience and the courts - trial application
I was a bit excited when I first read this article about the brain science of guilt and punishment that was done by researchers Owen Jones, René Marois and Joshua Buckholz:
the brain assesses guilt and metes out punishment via different mechanisms - the former rationally, the latter more emotionally.Using functional-MRI, the team probed the brains of 16 volunteers as they judged scenarios of varying culpability and criminality on a scale of 0 to 9 - from no punishment to extreme punishment.
While lying in an fMRI scanner, which images brain activity using blood-flow levels, volunteers judged clear-cut crimes, ranging from petty larceny to rape and homicide. They also judged situations where criminal guilt was more ambiguous - a torture and murder directly linked to a brain tumour, or a petty theft in a delusional state, for instance.
Activity in a small part of the prefrontal cortex seemed to mark the difference between unequivocal crimes and scenarios where guilt was more questionable, no matter the severity of the deeds. When participants judged obvious homicides, assaults and robberies, their right dorsolateral prefrontal cortexes (rDLPFC) were more active than during judgements of crimes where guilt was more ambiguous.
This region has been implicated in decisions of morality and fairness, as well as other functions unrelated to the law.
The question that came to my mind was, if we can identify the areas of the brain that are active when jurors or judges are hearing A) very bad cases that deserve lots of punishment; and B) questionable cases where the defendant should be found not guilty or where the defendant should not be punished harshly, can we then use this to frame the theory of our case so that we present a fact pattern that stimulates area A as opposed to area B, even when we have a case with particularly bad facts, thereby increasing our chances of success?
But, isn't this what we already do in trial? The brain research is simply an academic exercise explaining what happens as we do it, and, at least for purposes of trial practice, may not have any practical impact at all. When we tell our client's story in such a way that the jury is captivated, when we weave into the case the principles of justice that demand our client's acquittal, or when we ensure that the judge at sentencing knows that our client has performed community services, that his family loves him dearly, or that he is the sole caretaker of his elderly grandmother, is it that what we are doing is re-routing the jurors or the judge's thoughts away from the right dorsolateral prefrontal cortex, so that the more sympathetic areas of the brain will control their decision making process?
The study also indicates that the rational parts of the brain govern decisions regarding guilt or innocence, while the emotional parts of the brain govern decisions regarding punishment. If we are to take a lesson from that it would be that we should make rational arguments as opposed to emotional arguments during the guilt phase, and vice versa when arguing punishment. Of course, that is what we do - the guilt phase of a trial is heavily weighted towards rational argument and the punishment phase is weighted towards an appeal to emotion; but I still believe that, once the legal hook is set, it is passion and emotion that carries the day when a jury decides innocence or guilt.
If nothing else, the concept that justice may be "hard-wired" into our brain is fascinating.
