A Complicating Factor: Differences Between Legal Systems

Neurolaw partially overlaps with neuroethics. For instance, neuroscience-based mind reading is a topic not just in neuroethics, but also in neurolaw (Meynen 2014b). Compared to neuroethics, however, neurolaw research is, in a relevant way, more complicated. While ethics—and therefore neuroethics—transcends the boundaries of legal systems, neurolaw is, to a considerable extent, bound to a par-ticular legal system.⁵⁶ And legal systems may differ significantly.

The insanity defense is a good example of this. Standards for insanity vary greatly between jurisdictions; for instance, the notion of control may or may not be a criterion. This means that neuroscientific findings on behavioral control in mental disorder may be relevant to insanity in some jurisdictions, but not in others.

In fact, where insanity is concerned, we can distinguish between medical and legal issues. Since medicine is basically an international endeavor,⁵⁷ the way in which a mental disorder is diagnosed generally transcends the boundaries of legal systems. If in the future, state-of-the-art psychiatry requires neuroimaging for diagnosing a particular disorder, this will most likely be accepted in the courtroom as part of a proper evaluation.⁵⁸ However, if certain neuro-techniques do not have a place in standard psychiatric evaluations, the situation is different. Then, it is likely to become a legal issue and the court may have to decide about the admissi-bility of a certain technique regarding the legal question at hand, for instance, con-cerning behavioral control. In the U.S. legal context, Daubert and Frye, standards for the admissibility of scientific evidence, are relevant in this respect. But other countries have other laws and rules regarding admissibility of evidence.

Many neurolaw topics can only be fully addressed within the context of a par-ticular legal system, e.g., the right against self-incrimination, while some largely transcend the locality of the law, such as discussions about neuroscience and free will. However, this also depends on the researcher’s approach to these issues. For instance, Morse (2007) takes a largely legal approach to the problem of free will, concluding that it is a “non-problem” in forensic psychiatry and psychology because “free will” is not part of any relevant legal doctrine in the U.S.⁵⁹

56On the topic of this section, see also Meynen (2014b).

57See Sect. 5.1, and Meynen and Oei (2011).

58See Sect. 6.4.

59Morse supplements this argument, meanwhile, with some more general and philosophical con-siderations about determinism and responsibility (Morse 2007).

6.7 Two Neurolaw Cases and the Constellation of Findings

142 6 Neurolaw: Challenges and Opportunities

Notably, taking the legal details into account may also lead to further analysis of neuroscientific techniques. Suppose that a certain legal standard is relevant to admissibility of the evidence; it may not be immediately clear whether a particu-lar technique meets that standard. The technique itself must be carefully studied before one can conclude whether or not it meets the standard.

One implication of these considerations is that neurolaw involves much more research than neuroethics, because many neurolaw questions have to be answered for each legal system separately. This is one of the major challenges for neurolaw.

On the positive side, legal systems may also learn from one another, because simi-lar rules and standards may apply. In this respect, publications like Spranger’s (Ed.) International neurolaw. A comparative analysis (2012) are very valuable.

6.9 Conclusion

Neurolaw is a rapidly developing area of profoundly interdisciplinary research.

Legal insanity is one of the topics studied. Currently, the presence of a mental dis-order cannot be neurobiologically assessed. Apart from dementias, brain traumas, and tumors—conditions that may be considered primarily neurological in nature—

neuro-techniques are not helpful in diagnosing psychiatric illnesses. But this could change in the near future. Much work is being done in “biological” psychiatry, and these efforts may result in neuro-assessment tools. However, in the past, there has been considerable overoptimism in this respect.

Neuroscience might not only be helpful in diagnosing the presence of a disor-der; forensic psychiatry is not just about the presence of a disorder, it also con-cerns the impact of a disorder on a person’s decision-making. A great deal of neurobiological research is being done on how mental disorders may affect deci-sion-making. What is lacking, though, are clear findings to be used in individual cases to evaluate how a defendant’s decision-making was affected by mental ill-ness. Still, this type of research could soon yield valuable results for forensic psy-chiatric evaluations.

The norm for insanity is legal. Even if neuroscience were to contribute to insan-ity evaluations, and even if, in the future, “brain abnormalities” were to replace or supplement “mental disease” in the insanity standard, the norm will still remain legal, and the final decision about insanity will still be up to the judge or jury. That stated, if neuroscientific terms or criteria were to be incorporated into the insanity standard, the role of neuroscientists in the courtroom would likely become more prominent.

Apart from contributing to forensic psychiatric evaluations of defendants by shedding light on mental disorders and their impact, neuroscience may contrib-ute through brain-based lie detection, or other forms of neuro-mind reading. The development and use of brain based mind reading, even more than other techniques, should probably be accompanied by thorough neurolegal and neuro-ethical research.

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A major issue in neurolaw literature is the validity and reliability of neurosci-ence, in the laboratory as well as in the courtroom—which may be a very different matter. Its reliability and validity are not perfect, and will not be perfect for some time. In addition, neuroscientific findings may only help to answer a small part of the legal question at hand. But this is not the same as saying that neuroscience is unable to contribute to legal decisions. Such decisions are usually made based on various considerations, and neuroscience may support or provide one of them.

This was apparently the case in the two U.S. Supreme Court decisions we briefly discussed. In addition, neuroscience may sometimes be able to deliver more than we expect it to, as appears to be true in the schoolteacher’s case. In fact, at this moment, the only general answer we have to the question about what neuroscience can contribute to the legal decisions is: “It depends.”

Many neurolaw questions have to be addressed separately for each legal sys-tem, which will entail a great deal of work. For instance, German lawyers cannot just refer to U.S. lawyers who answered a similar neurolaw question—even if the U.S. lawyers’ answer is highly accurate. German lawyers have to answer the ques-tion in a German legal context. Nevertheless, the Germans might still be able to benefit from the Americans’ answer. Notably, the specific legal details that have to be addressed in a particular jurisdiction may also require further study of neurosci-entific data and techniques.

In sum, neurolaw is intriguing as well as challenging—also where it concerns legal insanity.

6.9 Conclusion

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Legal insanity touches upon many fascinating theoretical issues, such as free will and brain determinism, but it ultimately concerns a practical forensic psychiatric and legal matter. In this chapter, we explore the issues to be considered when eval-uating, revising, or introducing insanity to a legal system. The crucial argument in favor of legal insanity is fairness towards those who are suffering from a severe mental disorder that profoundly impacts their behavior. But acknowledging this is just a starting point, because the insanity defense may take many forms. Building on the previous chapters, the aim is to provide arguments that may inform deci-sions about the actual shape legal insanity should take in a particular jurisdiction.

The nature of legal insanity is such, though, that even this practical aim will con-tinue to confront us with theoretical concerns and contemplations.

7.1 Boundaries Between Psychiatry and Law

A basic and guiding principle should be that legal insanity is a legal matter.

Insanity is not a medical term.¹ Insanity is not even a medico-legal term (like patient competency). It belongs strictly to the legal domain: it is a legal interest, the norm is legal, and the ultimate decision is, in every case, up to the judge or jury.

1See Pardo and Patterson (2013, p. 140): “As a doctrinal matter, ‘insanity’ is a legal and not a medical or psychological concept, although medical and psychological expertise informs judge-ments of insanity.” See also Sinnott-Armstrong and Levy (2011, p. 300): “It is common to think that insanity is a medical condition. Psychiatrists, however, almost never describe their patients as ‘insane’ or ‘sane.’ It would not help them in diagnosis or treatment to employ this dichotomy.

Instead, they use such diagnostic categories as schizophrenia, paranoid delusion, kleptomania, and borderline personality disorder to decide what is wrong with their patients and how to treat them. It is the judges and lawyers who have to decide who is insane and which mental condi-tions make someone insane. (…) although psychiatrists are best qualified to determine a person’s mental condition, lawmakers still need to decide whether that mental condition removes legal responsibility or some other legal status. Where the law draws the line between sanity and insan-ity depends on particular contexts and purposes.”

Chapter 7

Issues to Consider When Revising Legal Insanity

© Springer International Publishing Switzerland 2016

G. Meynen, Legal Insanity: Explorations in Psychiatry, Law, and Ethics, International Library of Ethics, Law, and the New Medicine 71, DOI 10.1007/978-3-319-44721-6_7