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Emerging practice of neuro-law faces skepticism

A teenager accused of murder might get life in prison, while an adult who has a brain tumor and is charged with the same crime could get a pass.

Brain chemistry comes into play for both cases, University of Wisconsin-Madison neuroscientist Ronald Kalil said, but the outcomes could differ because many courts are still on a learning curve when it comes to cases of my-neurons-made-me-do-it, especially regarding intent.

“The law is wrestling with that,” said Kalil, who leads the university’s new dual degree program in neuroscience and public policy. “The law is learning slowly that neuroscience might have something to say that judges need to be aware of when it comes time for people who have been found guilty of crimes to be tried and sentenced.”

That’s partly because brain science-based cases are still somewhat rare, said Kenosha County Circuit Judge Wilbur W. Warren III.

In his 17 years on the bench, Warren said, he recalls just one case with expert testimony on neuroscience: a reverse waiver for two teenagers, ages 14 and 15, who were charged as adults for killing a neighbor during a home invasion. Lawyers argued that, despite the legal authority to prosecute the boys as adults, the two should have been dealt with in juvenile court because their developing brains had not yet matured to the points that they were fully responsible for their crimes.

Warren ruled against the teens, who were convicted in adult court.

He said he expects neuroscience will come up again in other cases, and not just because juvenile brain development is a “forensic hot topic.”

“It’s another tool in a defense lawyer’s toolbox,” Warren said. “It’s another defense. It’s another type of consideration that a persuasive lawyer might be able to get a judge to consider.”

Kalil said he hopes graduates of the university’s neuroscience and public policy program, which includes an option for a Ph.D. in neuroscience and a law degree, might help the judiciary better understand those arguments, however.

Under the program, students are trained in neuroscience and law, with the option of specializing in public policy or practicing in a branch of integrative law commonly referred to as neuro-law.

Neuro_lawIn the case of an accused teen, Kalil said, neuro-law could deal with presenting evidence about brain development and the lack of impulse control for a still-growing prefrontal cortex. For an adult, that could mean testimony about mental restructuring as the result of a tumor.

Acceptance for the practice is slow to build, however.

“Even though neuroscience may have something to contribute,” Kalil said, “there is a reluctance from judges to embrace us with open arms until it’s proved beyond a doubt that it’s relevant.”

Warren said that could be because brain evidence often cannot be weighed in the same way as physical evidence.

“Things you can see, feel, touch, physical types of evidence, (that) expert testimony is always easier to comprehend,” he said. “It’s easier to quantify and it’s easier to apply than something as inexact as the psychological sciences.”

That challenge exists in civil suits, as well, in which proving a mental disability could influence damage awards significantly, Warren said.

“If you’re missing an arm, you’re not malingering,” he said. “If you say, ‘I can’t’ because you’re afraid or because you have a delay, there’s wiggle room. Can they not do it? Won’t they do it? Or do they just want to be compensated for not doing it?”

Instilling trust in the field also is tricky, Kalil said, because the science continues to evolve.

“Learning how the brain works,” he said, “is a challenge of 10 lifetimes.”

There are some basic tenets of the legal system also at play, said Pauline Tesler, a University of Wisconsin Law School graduate and director of the Integrative Law Institute at Commonweal.

“We’ve been taught to exclude everything but deductive thinking and argumentation,” she said. “So, why should they embrace it? It could be dismissed as kumbaya crunchy granola, and they have.

“But you can’t dismiss brain chemistry. If you do, you’re an idiot because the evidence is there with hard sciences.”

Tesler said she hopes the UW’s dual degree program might lead to neuroscience-related electives in the law school, as well. Whether that is possible could depend largely on available money, which has been limited due to budget cuts.

The dual degree program relies on private money, Kalil said. But need also could dictate whether courses are added to the curriculum, he said, and the need is growing.

“I truly think that neuroscience has something now that the law should listen to,” Kalil said. “And as we learn more and more it will have more to say.”


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