/ August 6, 2008

The Future of Law: Freedom of Thought

One of the most cherished liberties enjoyed by American citizens is the freedom of thought, one typically so protected that we can take it for granted. Traditionally, the mind has been a private sphere, inaccessible even under the most tyrannical regimes. And in the American judicial system, defendants are held accountable for their actions, not their ideas. However, as neuroscience and psychology continue to make notable advancements in the understanding of the human brain, the mind has become an increasingly public entity: we can now measure and dissect the brain to understand a person’s thoughts, impairments, and biological tendencies. The use of new technologies has created a number of moral quandaries in the courtroom, creating questions of responsibility, the ethics of lie detector testing, and potential implications for jury selection.

One up and coming test is the brain scan, which can detect irregularities in the brain of a defendant. While some neuroscientists have decried the scans as unreliable, others claim that the technology can reveal a mental handicap (such as a deformity or cyst) in an individual that may have altered his or her judgment or ability to reason. This type of evidence has been especially significant in death penalty cases, and creates a higher probability of a life-sentence for those seen to be mentally unfit. Nevertheless, opponents argue that the line between mental incapacity and moral responsibility is razor thin; if all actions are predetermined by brain function and chemistry, why do some people suffering certain conditions commit crimes, while others do not?

Many forensic experts are now looking to the future, in which neuroscience will likely play a central role. Some foresee a major transformation of legal ethics, which will be put to the test by a variety of new advancements in lie detection and brain-imaging. For example, lie detection software has already been developed, using f.M.R.I. software, that claims to detect different areas of the brain at work depending on whether the subject is lying or telling the truth. These machines have not yet reached a level of accuracy that admits them to usage in the courts, but if they are allowed in the future, they could expose the privacy of a person’s thoughts to a public examination unlike any seen before. One potential application of this tool could be for jury selection; some tests have shown sub-conscious bias or racism in subjects who claimed none. This discovery, however, must be tempered by the fact that thoughts do not always translate into actions.

And these are only the developments that are on the horizon. The vast progress being made in the field every day ensures that the questions will only lead to more difficult and divisive ones in the future. Some laud the recent advancements for fostering a more just and better-informed judicial system. Others, like Center for Cognitive Liberty and Ethics, warn that the freedom of thought is under grave attack, and that guidelines are necessary to prevent abuse of our new mind-reading powers.

What is your position? Is neuroscience a boon or a danger in the courtroom? Let us know in the comments below.

Source: The New York Times Magazine

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