Michael S. Pardo and Dennis Patterson, Minds, Brains, and Law: The Conceptual Foundations of Law and Neuroscience (Oxford: Oxford University Press 2015) 276 pp. £16.99 Pb, £59.00 Hb. ISBN: 9780190253103
Recent developments in neuroscience offer new approaches to a plethora of complex challenges surrounding debates about legal responsibility. Medical and legal professionals are engaged in (often quite heated) dialogue about the extent to which new scientific understandings of the mind and/or brain can be relied upon as something close to the ever-coveted objective ‘truth’. Whilst recognising the value of more reliable neuroscientific evidence in legal proceedings, the idea of treating it as empirical proof is fraught with difficulties.
Long-standing participants in this network of conversations, Michael S. Pardo (Professor of Law at the University of Alabama) and Dennis Patterson (Professor of Law and Philosophy at Rutgers University) provoked a wide range of responses with the publication of Minds, Brains, and Law in 2013. In their new preface for the paperback edition, the authors defend points highlighted by ‘commentators who have misunderstood the nature of [their] arguments’, particularly concerning the relationship between the conceptual philosophical issues they identify, and the ‘empirical investigations of the brain’. The addition of this preface (and their publication of other detailed responses to critical reviews) reveals the persistence of tension between different approaches to legal responsibility.
This study is ambitious and interdisciplinary in scope, ranging over empirical, practical, and ethical issues in its discussion of conceptual distinctions between the mind and brain, and their implications for legal theory, lie detection, criminal law, and punishment. Its breadth means that it will attract those with a general interest in the legal, moral, philosophical, or scientific aspects of this subject, in addition to specialists working in one or more of these areas. Although undoubtedly valuable and productively provocative within neuro-legal studies, some chapters may prove rather dense, and too deeply rooted in that specialist field to be fully accessible to a wider readership. The volume draws its legal contexts and cases from the American system (particularly the Fifth Amendment, which protects against self-incrimination and double jeopardy), but Pardo and Patterson’s engagement with much wider conceptual and theoretical issues makes this study a timely and internationally pertinent one.
The central argument made in the opening sections of the study – that greater attention should be paid to the conceptual and epistemological issues surrounding the subject – is unlikely to be challenged by many. However, it is perhaps inevitable that a volume which claims authority across such a broad disciplinary base has attracted criticism not only within neurolaw, but elsewhere, in philosophy and what Patricia Churchland (1981) has controversially termed ‘folk psychology’. For Pardo and Patterson, the view that the mind is the brain, is categorically ‘neuro-reductionist’ (28-29), confusing the part with the whole, and assuming the fallacy that individual behaviour results from neural activity in the brain. This, they claim, necessarily ignores cultural factors and individual experience. Determinism is, of course, another vast field of philosophical enquiry in itself, and one fraught with controversy, particularly in questions of ethical and legal responsibility.
Perhaps the most valuable contributions of this book (which deserve praise even from its conceptual detractors) are the strides it makes attempting to extricate some of the ‘mismatched terminology’ which has led to misunderstandings at the intersection of legal, philosophical, and scientific discourse. In the less technical sections of prose, this work is particularly successful. The authors draw attention to the disconnect between what we usually refer to as ‘lying’ and what it constitutes in neuroscience. In Chapter Four, they suggest that one can lie ‘without an intent to deceive’, offering the example of a witness in court who has been threatened (xxiii).
The concept of ‘lie detection’ has an enduring popular and professional fascination (see Ken Alder, The Lie Detectors: The History of an American Obsession, 2007, and Geoffrey C Bunn, The Truth Machine: The Social History of the Lie Detector, 2012). As Pardo and Patterson note, ‘The ability to accurately and convincingly distinguish lying from truth telling promises to provide a solution to complex issues at the heart of virtually every litigated legal issue in criminal and civil cases: namely, which witnesses to believe’ (79). With more and more arrests being made on terrorist charges, there is an urgent demand for reliable, humane lie detection technology. This follows the repeated failure of polygraphs, ‘truth serums’, and other methods (however productive those have been in Cold War spy novels). Given that neuroscientific methods are not yet reliably accurate, their appeal is potentially dangerous. A jury may be prejudiced by fMRI-based1 lie detection findings because they are ‘scientific’, without giving due credit to other forms of evidence.
Similarly, EEG2 lie detection studies have had mixed results, with accuracy ranging from 50 to 100%. The authors summarise Meixner and Rosenfeld’s fascinating mock terrorism study (2011), in which 12 out of 24 subjects participated in planning a location, date, method and other details of a mock attack. Using EEG techniques, researchers identified 10 of the ‘guilty’ participants, with no false positives. Conversely, Mertens and Allen’s mock-crime study in 2008 only produced a 50% detection rate. Problematically, ‘these results are based on highly artificial and tightly controlled testing conditions’ and the reliability of the technique for more complex ‘real world’ situations remains unknown (93).
Chapter Five discusses the potential of neuroscience for criminal law doctrine. Before synthesising a range of interesting studies, the authors offer some clarification to familiarise non-expert readers with various concepts and terminology (including mens rea and actus reus) used in litigation, giving the example of a dinner party host who serves their guests poisoned wine (131). However, for Pardo and Patterson, it is proof of insanity that constitutes ‘one of the more plausible avenues by which neuroscience may contribute to the law’ (140), and the section devoted to this subject is likely to have a wide appeal to readers including BSLS members.
This branch of law originates from nineteenth-century assassination and regicide attempts. Three years after Edward Oxford’s attempt to shoot Queen Victoria, Daniel M’Naghten shot and killed Robert Peel’s private secretary, mistaking him for the Prime Minister himself. The ‘M’Naghten rules’ were established as the legal test for criminal insanity. Defendants could then be found NGRI (‘not guilty by reason of insanity’) or ‘guilty but insane’ - the Queen’s preferred verdict, over which she quarrelled with Home Secretaries for several decades. More recent cases hinging on diminished responsibility through automatism have included defendants who sleepwalked or were diabetic, epileptic, or suffering from arteriosclerosis.3
BSLS members researching numerous fields including the social and legal history of crime, psychology, philosophy, the emotions, literature and film will find food for thought in this impressive volume. Perhaps most importantly, Minds, Brains, and Law entreats us, as participants in interdisciplinary and international discourses, to think more carefully about the language we use, and its different contexts and connotations. By doing so, we may forge more effective collaborations in the future, from co-authored publications and interdisciplinary conferences to the trial of terror suspects.
Helen Goodman, Royal Holloway, University of London
1 fMRI (functional Magnetic Resonance Imaging) is the technique of producing images which measure brain activity by detecting changes in blood flow. When part of the brain is in use, blood flow to that area increases).
2 EEG (electroencephalography) lie detection, or ‘brain fingerprinting’ measures the P300 brain wave, first taking the subject’s baseline measures, and then seeing how the brain responds to stimuli, such as photographs, objects, and descriptions. It ‘purports to measure whether the subject has prior knowledge of the stimuli’ - ‘guilty’ or ‘concealed’ knowledge (92).
3 Arteriosclerosis is the hardening or thickening of arterial walls, restricting blood flow to tissues and organs.