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October 9, 2017

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

The title of this post is the title of this notable new paper authored by Christopher Slobogin. Even more than the title, the paper's abstract suggests it is a must-read for sentencing fans:

Most scholars who have written about the role of neuroscience in determining criminal liability and punishment take a stance somewhere between those who assert that neuroscience has virtually nothing to say about such determinations and those that claim it will upend the assumption that most choices to commit crime are blameworthy.  At the same time, those who take this intermediate position have seldom clarified how they think neuroscience can help. This article tries to answer that question more precisely than most works in this vein.  It identifies five types of neuroscience evidence that might be presented by the defense and discusses when that evidence is material under accepted legal doctrine.  It concludes that, even on the assumption that the data presented are accurate, much commonly proffered neuroscientific evidence is immaterial or only weakly material, not only at trial but also at sentencing. At the same time, it recognizes that certain types of neuroscience evidence can be very useful in criminal adjudication, especially at sentencing.

October 9, 2017 at 11:57 AM | Permalink


The legal system is biased in favor of the criminal. What if neurosciences were to increase culpability? What if I found tests to predict dangerous, and validate intentionality (what I call mind reading), in a reliable way?

The answer is, they would never be used in court. That means all neurosciences arguments are to serve the defense, and its use is biased.

Aside from the problem of quackery, lack of replicability, the research was not designed to assess culpability. Thus, any use of even highly valid, strong results is quackery.

Posted by: David Behar | Oct 9, 2017 9:37:01 PM

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