Neuroscience-based Psychiatric Assessments of Criminal Responsibility: Beyond Self-Report?

Abstract

Many legal systems have an insanity defense, which means that although a person has committed a crime, she is not held criminally responsible for the act. A challenge with regard to these assessments is that forensic psychiatrists have to rely to a considerable extent on the defendant's self-report. Could neuroscience be a way to make these evaluations more objective? The current value of neuroimaging in insanity assessments will be examined. The author argues that neuroscience can be valuable for diagnosing neurological illnesses, rather than psychiatric disorders. Next, he discusses to what extent neurotechnological 'mind reading' techniques, if they would become available in the future, could be useful to get beyond self-report in forensic psychiatry.

Emulating future neurotechnology using magic

“…Future developments in neural decoding may carry implications across several domains including personal responsibility, autonomy, and identity (Goering et al, 2021;Ryberg, 2017). For example, brain reading could be used to predict the risk of recidivism (Ienca & Andorno, 2017) or to influence attributions of criminal responsibility by inferring one's mental state at the time of the crime (Meynen, 2020).…”

Limitations Using Neuroimaging to Reconstruct Mental State After a Crime

“…The use of neuroimaging in insanity evaluations has been promoted by some as one way to overcome cognitive biases associated with these evaluations 30 and improve on the self-report of traditional clinical methods for insanity evaluations. 31 The authors of these papers propose that a multidisciplinary approach with the inclusion of neuroimaging, converging neuroscience, and clinical data, will improve opinions of insanity. Indeed, an increasingly common phenomenon is the inclusion of neuroimaging testimony 32 in a variety of legal proceedings.…”

Forensic Brain-Reading and Mental Privacy in European Human Rights Law: Foundations and Challenges

“…However, a de facto impossibility of altering and revealing thoughts in a direct way has always been a background assumption of the law [32,34,36]. 7 Neither drafters, nor judges, nor commentators have seriously anticipated the possibilities that neuroscience may offer in this respect. 8 Historical statements or parallels are thus not by definition a convincing guide for a contemporary analysis of the right.…”

“…The question thus arises whether brainreading could permissibly be used without valid consent in a forensic context. To date, forensic 'brain-reading' has typically been performed with the subject's consent [7], but would it be factually possible, legally permissible and morally acceptable to deploy brain-reading against the subject's will [8][9][10]? And if so, under what conditions?…”