Abstract. The use of neuroscientific evidence in criminal law has been subject to intense and sustained debate in international neurolaw. The theoretical discourse has persistently questioned whether neuroscience can challenge fundamental criminal law doctrines, especially that of criminal responsibility. Still, neuroscientific evidence has continued to enter courtrooms in a variety of contexts and to support a variety of claims. In the United States, there are two main ways in which neuroscience has been applied in courtrooms: as individualized evidence and as framework evidence. As individualized evidence, neuroscience serves to impart credibility to individualized claims about the influence of a given brain condition on a person’s behavior. The paradigmatic contexts for the use of such individualized use of neuroscience include criminal responsibility and individual sentencing. At the same time, in the latter case, neuroscientific data and theories provide the framework knowledge to support broad normative claims concerning general classes of people. The paradigmatic contexts of such framework application of neuroscience include constitutional challenges to juvenile sentencing and prolonged solitary confinement. This article examines these two dominant uses of neuroscience in courtrooms together with current perspectives in legal and scientific research and legal policy. It concludes that the concrete promise of neuroscience for criminal law and justice derives from its contribution of critical framework knowledge to inform changes in the current criminal justice landscape.
This article was submitted for evaluation by two expert reviewers, with a positive outcome.
SUMMARY: 1. Introduction. – 2. Neuroscience as individualized evidence. – 2.1 Guilt phase of criminal trials. – 2.2 Penalty phase of criminal trials. – 3. Neuroscience as framework evidence. – 3.1. Juvenile justice. – 3.2. Solitary confinement. – 4. Discussion. – 5. Conclusion.
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