The Rise of the Neurobiological Defense with Nita Farahany
The neurobiological evidence presented at criminal trials - from competency determinations to sentencing mitigation - grew at a momentous pace from 2005 to 2012, according to a study published last week in the Journal of Law and the Biosciences.
But that trend has only continued to grow, according to Nita Farahany, the Duke University legal scholar behind the study.
Farahany told Forensic Magazine in interview via email that her analysis of thousands of U.S. court appeals incorporating neuroscience in criminal cases is ongoing – and apparently increasing every day.
“We have a study on this underway,” said Farahany. “(We’re seeing) at least as many cases per year, and (it) looks to be increasing.”
“Mental infirmity” defenses have been employed for a long time – whether it was “crimes of passion” in the 19th century, or “temporary insanity” in the 20th century. But the scientific advances into the chemistry of the brain itself have opened up a whole new horizon for both defense and prosecution, Farahany added.
“There seems to be something about neuroscience and the better understanding of the brain that makes this have more salience for judges and juries,” she said.
One case exemplifying how neuroscience could have been used better in the courtroom would be the case of the infamous Illinois serial killer Brian Dugan, Farahany said. D
ugan is currently behind bars for three murders and seven rapes, and spent years on death row before the state did away with the death penalty. But his history included traumatic brain injury during birth, parental abuse, and other factors. Dugan expressed remorse over his actions over a number of years - but admits he is a psychopath who cannot control his urges without being behind bars, according to a 2014 interview with The Chicago Tribune.
Farahany’s current study found more than 1585 judicial opinions cited neurobiological evidence in the eight-year study period, according to the paper in the Journal of Law and Biosciences. The number grew at an accelerating pace: the 250 defenses raised in 2012 was double the number in 2007. The totals amounted to about 5 percent of all murder trials, and 25 percent of death-penalty murder cases, they found.
The variety of “brain problems” raised at trial presented a wide range. Defendants blamed their actions on brain trauma, addictions, and developmental disabilities. They also cited neurological disorders to debate their competency to stand trial, attribute their actions to insanity or immaturity (for juveniles), and to argue for lesser sentences. Although first-degree murder cases were the most-common outlet, the next common categories were drug, assault and robbery cases.
Overall, the use was “haphazard, ad hoc, and often ill conceived,” the Duke team found.
Currently, the “haphazard” use of neuroscience in the courtroom is not resulting in widespread injustices – but it is holding back more-productive use of proven science in the system, Farahany told Forensic Magazine.
The next study by the Duke team will evaluate the years 2013 to 2015, and will delve further into the issues of competency, and other specific defenses raised in the legal process, Farahany said.
The solution for the future is easy, she added.
“Bring more neuroscientists into the courtroom,” Farahany said.