The Biology of Guilt: Neuroscience in the Courts

Beth Baker, The Biology of Guilt: Neuroscience in the Courts, 68 Bioscience 628 (2018).

Abstract: Neuroscience, especially brain imaging, is here to stay in the US legal system. That is the verdict of experts in the emerging field of neuroscience and the law. Tests such as PET (positron emission tomography) scans and MRI (magnetic resonance imaging) are being used to help assess a defendant’s competency to stand trial, determine the extent of brain damage in disability cases, prove insanity defenses, and reduce sentencing, among many other purposes.

Responsible Brains: Neuroscience, Law, and Human Culpability

Katrine L. Sifferd, Tyler Fagan & William Hirstein, Responsible Brains: Neuroscience, Law, and Human Culpability, MIT Press (Forthcoming 2018).

Abstract: When we praise, blame, punish, or reward people for their actions, we are holding them responsible for what they have done. Common sense tells us that what makes human beings responsible has to do with their minds and, in particular, the relationship between their minds and their actions. Yet the empirical connection is not necessarily obvious. The “guilty mind” is a core concept of criminal law, but if a defendant on trial for murder were found to have serious brain damage, which brain parts or processes would have to be damaged for him to be considered not responsible, or less responsible, for the crime? What mental illnesses would justify legal pleas of insanity? In Responsible Brains, philosophers William Hirstein, Katrina Sifferd, and Tyler Fagan examine recent developments in neuroscience that point to neural mechanisms of responsibility. Drawing on this research, they argue that evidence from neuroscience and cognitive science can illuminate and inform the nature of responsibility and agency. They go on to offer a novel and comprehensive neuroscientific theory of human responsibility.

In Defense of Free Will: Neuroscience and Criminal Responsibility

Paul G. Nestor, In defense of free will: Neuroscience and criminal responsibility, 57 Int’l J. Law & Psychiatry (2018).

Abstract: Is neuroscience the death of free will and if so, does this mean the imminent demise of the psycho-legal practices related to insanity and criminal responsibility? For many scholars of neuro-jurisprudence, recent advances in brain sciences suggesting that the perception of free will is merely illusory, an epiphenomenon of unconscious brain activity, do indeed undermine our traditional understandings of moral and legal responsibility. In this paper, however, we reject this radical claim and argue that neuroscientific evidence can indeed reveal how free will actually works and how its underlying neural and perceptual machinery gives rise to our sense of responsibility for our actions. First, the experience of free will is recast in terms of neuroscientific studies of agency and willed action. Second, evidence is presented of a neural network model linking agency to widely-distributed brain areas encompassing frontal motor and parietal monitoring sites. We then apply these findings to criminal responsibility practices by demonstrating (a) how the experience of intentionality and agency is generated by specific interactions of this discrete frontal-parietal network, (b) how mental disease/defect may compromise this network, and (c) how such pathologies may lead to disturbances in the sense of agency that often are central to the phenomenological experience of psychosis. The paper concludes by examining criminal responsibility practices through the lens of cultural evolution of fairness and cooperation.

Rethinking the Voluntary Act Requirement: Implications from Neuroscience and Behavioral Science Research

R. Fondacaro, Rethinking the Voluntary Act Requirement: Implications from Neuroscience and Behavioral Science Research, Behav. Sci. L. (Forthcoming 2018).

Abstract: Criminal responsibility in the American legal system requires the presence of an actus reus — a harmful act that was committed voluntarily — and a mens rea, or guilty mind. Courts frequently consider questions surrounding mens rea but rarely question whether an act was committed voluntarily. Thus, courts presume that acts have been committed voluntarily and with an ill will; retribution, which serves the primary basis for punishment in the United States, relies on this presumption. Research in neuroscience and the behavioral sciences, however, suggests this presumption is flawed and not sufficiently robust to justify punishment that is grounded in retribution. In this paper we discuss the presumption of voluntariness and free will inherent in the law, provide examples of how the courts have conflated actus reus and mens rea and the consequences of doing so, and the implications of neuroscience and behavioral science research for actus reus (also known as the voluntary act requirement). Finally, we propose re-conceptualizing punishment within a consequentialist, empirically-based framework that does not rely on folk psychological notions about human behavior and reinvigorates the actus reus as the foundational requirement for legal responsibility.

Crime, Punishment, and Causation: The Effect of Etiological Information on the Perception of Moral Agency

Philip Robbins & Paul Litton, Crime, Punishment, and Causation: The Effect of Etiological Information on the Perception of Moral Agency, 24 Pub. Pol’y & L. 118 (2018).

Abstract: Moral judgments about a situation are profoundly shaped by the perception of individuals in that situation as either moral agents or moral patients (Gray & Wegner, 2009; Gray, Young, & Waytz, 2012), Specifically, the more we see someone as a moral agent, the less we see them as a moral patient, and vice versa. As a result, casting the perpetrator of a transgression as a victim tends to have the effect of making them seem less blameworthy (Gray & Wegner, 2011). Based on this theoretical framework, we predicted that criminal offenders with a mental disorder that predisposes them to antisocial behavior would be judged more negatively when the disorder is described as having a genetic origin than when it is described as environmentally caused, as in the case of childhood abuse or accident. Further, we predicted that some environmental explanations would mitigate attributions of blame more than others, namely, that offenders whose disorder was caused by childhood abuse (intentional harm) would be seen as less blameworthy than offenders whose disorder is caused by an unfortunate accident (unintentional harm). Results from two vignette-based studies designed to test these predictions, conducted with participants recruited from Amazon Mechanical Turk (N = 244 and N = 387, respectively), confirmed the first prediction but not the second. Implications of this research for three areas–the psychology of moral judgment, philosophical debates about moral responsibility and determinism, and the practice of the law–are discussed in the sequel.

Decoding Guilty Minds

Ginther, Matthew and Shen, Francis X. and Bonnie, Richard J. and Hoffman, Morris B. and Jones, Owen D. and Simons, Kenneth W., Decoding Guilty Minds (November 11, 2017). Forthcoming in Vanderbilt Law Review (2018); UC Irvine School of Law Research Paper No. 2017-59. Available at SSRN:

Abstract: A central tenet of Anglo-American penal law is that in order for an actor to be found criminally liable, a proscribed act must be accompanied by a guilty mind. While it is easy to understand the importance of this principle in theory, in practice it requires jurors and judges to decide what a person was thinking months or years earlier at the time of the alleged offense, either about the results of his conduct or about some elemental fact (such as whether the briefcase he is carrying contains drugs). Despite the central importance of this task in the administration of criminal justice, there has been very little research investigating how people go about making these decisions, and how these decisions relate to their intuitions about culpability. Understanding the cognitive mechanisms that govern this task is important for the law, not only to explore the possibility of systemic biases and errors in attributions of culpability but also to probe the intuitions that underlie them.

In a set of six exploratory studies reported here, we examine the way in which individuals infer others’ legally relevant mental states about elemental facts, using the framework established over fifty years ago by the Model Penal Code (“MPC”). The widely adopted MPC framework delineates and defines the four now-familiar culpable mental states: purpose, knowledge, recklessness, and negligence. Our studies reveal that with little to no training, jury-eligible Americans can apply the MPC framework in a manner that is largely congruent with the basic assumptions of the MPC’s mental state hierarchy. However, our results also indicate that subjects’ intuitions about the level of culpability warranting criminal punishment diverge significantly from prevailing legal practice; subjects tend to regard recklessness as a sufficient basis for punishment under circumstances where the legislatures and courts tend to require knowledge.

Neuroscience Nuance: Dissecting the Relevance of Neuroscience in Adjudicating Criminal Culpability

Christopher Slobogin; Neuroscience nuance: dissecting the relevance of neuroscience in adjudicating criminal culpability, Journal of Law and the Biosciences, Volume 4, Issue 3, 1 December 2017, Pages 577–593,

Abstract: The usefulness of neuroscience in determining the blameworthiness of a particular criminal defendant is highly contested. On one side are those who argue that neuroscience is virtually irrelevant in criminal court or useful only as corroborating evidence of legally relevant impairment proven through other means. On the other side are those who contend that neuroscience will soon show, if it has not already shown, that most criminals have little or no control over their behavior. In between are those who recognize the tenuous nature of neuroscientific claims in criminal cases but nonetheless suggest that they can in some cases provide independent evidence relevant to excuse or mitigation.

This article takes issue with all three stances. The first two sets of claims are overstated, and the last type of claim is insufficiently nuanced. Neuroscience does have something to offer court determinations of criminal liability and punishment, but it is far from upending the criminal law’s basic premise that most choices to commit crime are blameworthy. At the same time, those who agree with this intermediate position have not done a particularly good job at clarifying how they think neuroscience can help. Any such clarification needs to recognize that there are many different types of neuroscience evidence and many different types of legal claims that it might address.

I Could Have Done Otherwise: Availability of Counterfactual Comparisons Informs the Sense of Agency

Eugenia Kulakova, Nima Khalighinejad, & Patrick Haggard, I could have done otherwise: Availability of counterfactual comparisons informs the sense of agency, 49 CONSCIOUS COGN. 237 (2017).

Abstract: Personal control and agency are closely associated with the counterfactual notion that a person could have done otherwise (CDO). In both philosophy and law, this counterfactual evaluation determines responsibility and punishment, yet little is known about its influence on agents’ experience during action. We used a risky decision-making task to study how counterfactual evaluations influenced participants’ sense of agency. Two factors were manipulated independently: the presence/absence of counterfactual comparisons between actions and the presence/absence of counterfactual comparisons between outcomes of these actions. Perceived agency was highest when both counterfactual comparisons were available. Interestingly, this pattern persisted even when counterfactual information was only revealed after action, suggesting a purely reconstructive evaluation effect. These findings allow a more precise phrasing of the CDO element of personal agency: a person feels most control when she could have performed another action, thereby obtaining another outcome.