Table of Contents
Foreword v
Summary Contents ix
List of Contributors xix
Table of Cases xxiii
Table of Legislation xxvii
Table of Codes, Guidelines and Professional Standards xxix
Table of International Instruments xxxiii
1 Introduction Sofia Moratti Dennis Patterson 1
2 The Neurobiology of Antisocial and Amoral Behaviour: Insights from Brain Science and Implications for Law Cole Korponay Michael Koenigs 9
I Introduction 9
II Neuroscience Background 10
The Structure of Neurons 10
Communication Between Neurons 11
Macroscopic Organisation of the Brain 12
Neuroimaging 13
Structural Neuroimaging 14
Magnetic Resonance Imaging 14
Diffusion Tensor Imaging 15
Functional Neuroimaging 15
Neuroimaging in the Courtroom: Limitations 16
Correlation Does Not Imply Causation 16
Brains Change Over Time 17
Comparing a Group to an Individual Introduces Statistical Ambiguity 17
Neuroimaging Technology and Methodology Carries Inherent Error Rates 18
Neuroimaging Yields a Coarse Measure of Brain Structure and Function 19
Summary 19
III Neuroscience Data Relevant to Legal Insanity 19
The Neurobiology of Criminal Behaviour and Insanity 20
Neurobiology of Abnormal Morality and Emotion Processing 20
vmPFC Dysfunction in Psychopathy 23
Neurobiology of Abnormal Impulsivity and Reward Sensitivity 27
Relevant Brain Regions and Circuits 27
Ventral Striatum 27
vmPFC/OFC 29
Dorsal Anterior Cingulate Cortex 30
Neurobiology of Low Intelligence and Psychosis 31
Low IQ 31
Psychosis 32
What Value Can Neuroscience Realistically Add? 33
Cautions 35
IV Conclusion 36
Bibliography 36
3 'Neuroscepticism' in the Courtroom: The Limited Role of Neuroscientific Evidence in Belgian Criminal Proceedings Katrien Hanoulle Frank Verbruggen 41
I Introduction 41
II Insanity Defence 42
III Internment Measure 43
Legal History Background 43
Society Protection Act 45
Parliamentary Debate 45
Forensic Psychiatric Observation 46
Internment Measure 47
Procedural Aspects 48
Conditions 53
Actus Reus: Felony or Misdemeanour 53
Mens Rea: Mental State 53
'Unfit to Control' 55
'Dangerous to Society' 57
Legal Reform 58
Internment Act of 21 April 2007 58
Act of 5 May 2014 59
Conditions for Internment 59
Internment Procedure 61
Forensic Psychiatric Expert Testimony 61
Sentencing judge 62
Insanity Defence 62
IV Neuroscientific Evidence 63
Limited Use of Neuroscience in the Courtroom 63
Use of Neuroscience to Substantiate Force Majeure: Two Recent Cases 63
Use of Neuroscience in Internment Decisions and to Corroborate the Insanity Defence 64
Future Developments 66
Limited Reliability of Neuroscientific Evidence 67
Neuroscientific Evidence in the Belgian Criminal Justice System: Current Practice 69
V Conclusion 71
Bibliography 72
4 France Is the Evidence Too Cerebral to Be Cartesian? Rafael Encinas de Munagorri Claire Saas 77
I Introduction 77
Three Approaches to Definitions and Standards 77
Who Sets the Legal Standards for Insanity? 79
Brain Imaging and Expert Testimony in the 2011 Bioethics Law 81
II Insanity as the Sole Ground of Exemption from Criminal Responsibility 82
The 'Partially Insane': A Major Omission from the Penal Code of 1810 83
Adaptation of Legal and Medical Practices 84
The 1994 Revision of the Penal Code and Its Ambiguity 85
The 2008 Reform: How Dangerousness Replaced Responsibility 87
III The Role of Court Experts 88
Two Court Cases 89
Procedural Constraints and Judicial Discretion in Assessing Neuroscientific Evidence 92
Diverse Experts and Approaches 94
IV Penal and Medical Responses, Calibrated According to the Nature of the Mental Disorder 96
Further Senatorial Proposals to Reform the Insanity Defence 97
The Content of the Reform 98
The Pursuit of a Balance Between Treatment and Punishment 99
V What is the Outlook for the Role of Neuroscience Technologies in French Criminal Trials? 100
What Can Neuroscience Say About a Suspect's Mental State? 100
What Do French Lawyers Think About Using Neuroscience in Criminal Trials? 103
Bibliography 107
5 'Not Guilty by Reason of Insanity' in the Italian Jurisdiction. A Neuroscience Revolution? Barbara Bottalico Amedeo Santostiosso 111
I Introduction. Neuroscience and the Law 111
II Regulation of Criminal Responsibility and Legal Criteria for the Admission of Neuroscientific Evidence 113
Criminal Responsibility, Legal Insanity and Forensic Mental Health Expert Reports 113
A Comparative Introduction to Evidence Admission in Italian and US Criminal Procedure 118
III The Use of Neuroscience to Support the Insanity Defence in Italian Case Law 120
The Albertani Case 121
The Mattielb Case 124
IV The Difficult Relationship Between Psychiatry and Law. Promises and Perils of a Science-Oriented Explanation of Human Behaviour 126
V Consequences of a Successful Insanity Plea: Italian Criminal Psychiatric Facilities 129
VI Conclusions 133
Bibliography 135
6 Legal Insanity and Neurolaw in the Netherlands: Developments and Debates Gerben Meynen 137
I Introduction 137
II The Insanity Defence in the Dutch Legal System 138
Who Performs the Evaluations and Under What Circumstances? 139
Questions to be Answered by Behavioural Experts 141
Evaluation Before the Facts have been Established 145
Five Grades of Criminal Responsibility 145
III Issues of Debate and Proposals for Change 146
The Grades of Criminal Responsibility 147
The Psychiatrist Performing Legal Insanity Assessments 148
Introducing a Legal Insanity Standard 149
IV Neurolaw and Legal Insanity 154
Three Research Lines in Neurolaw 154
The Neurolaw Debate in the Netherlands 156
V Concluding Observations and Reflections 160
Bibliography 163
7 On the Abolition and Reintroduction of Legal Insanity in Sweden Tova Bennet Susanna Radovic 169
I Introduction 169
II Mental Disorder and Crime in Sweden 170
Care and Protection. The Introduction of the 1962 Penal Code 170
Current Law 171
Compulsory Psychiatric Care as a Sanction 172
Problems, Criticism and the Beginnings of a Change 173
The First Proposal for a Reform 175
The Need for a Reform 175
The Proposal 176
The Amendment of 2008 177
Unresolved Problems 179
III A New Proposal for a Reintroduction of Legal Insanity 180
The Need for a Reform 180
The Accountability Standard 181
The Ground Conditions 182
The Effects 182
Judicial Proceedings and Legal Effects 183
The Response to the Suggested Reform 184
IV Testing the Proposed Legal Insanity Standard: An Empirical Study 184
Methods 185
Results 186
The Arguments Presented in the Forensic Psychiatric Reports 186
Arguments Set Forth as Indicating Intact Capacities 187
Arguments Set Forth as Indicating Compromised Capacities 189
The Court Assessments 192
Conclusions from the Study and Previous Research 193
V Concluding Discussion 196
Forensic Psychiatric Accountability Evaluations 196
Presentation and Evaluation of Forensic Psychiatric Expert Opinions in Court 197
The Proposed Criminal Responsibility Standard and its Implications 199
The Formulation of the Accountability Standard 200
The Declaratory Verdict and Its Legal Effects 203
Concluding Remarks 203
Bibliography 204
8 Abolishing the Insanity Verdict in the United Kingdom: A Better Balance Between Legal Rules and Scientific Understanding? Lisa Claydon Paul Catley 207
I Introduction 207
II Historical Development of the Common Law of Insanity. The Trial of Daniel M'Naghten 208
What Was the Purpose of the Interrogation of the Judges? 209
The M'Naghten Rules: The Presumption of Sanity 212
What Was the Effect of M'Naghten's Case? 213
The Developing Law 215
Ruling Out Irresistible Impulse 215
Legally or Morally Wrong? 217
A Place for Neuroscience? 217
Further Problems in Interpreting the Rules: The Defence of Automatism 218
Neurocognitive Perspectives on Voluntariness 221
Complex Relationships 221
Concerns Regarding the Underuse of the Defence 222
III The Law Commission's Proposals: The Proposed New Defence 224
Three Limbs, Not Two 225
A Neurocognitive Case Study 227
Burdens and Standards of Proof 228
The 'Qualifying Recognised Medical Condition' Requirement 230
Removing the Internal/External Divide 231
The New Automatism Defence 232
Prior Fault 233
IV Conclusion 233
Bibliography 235
9 Legal Insanity in the Age of Neuroscience Stephen J Morse 239
I Introduction 239
II The Moral Basis of the Defence of Legal Insanity 240
III The Main Counter-Argument 242
IV Why Alternatives are Morally Insufficient 243
The Mens Rea Alternative 243
Sentencing 246
V Practical Objections to the Insanity Defence Are Inconsequential 247
Assessing Past Mental State Using Psychological and Psychiatric Evidence 247
Public Safety 248
'Wrong' Verdicts 249
Beating the Rap 249
VI Is Legal Insanity a 'Status' Excuse or a Context-Limited Functional Excuse? 250
VII The Tesrs for Legal Insanity 255
The Mental Disorder Criterion 255
Cognitive Tests 257
Control Tests 258
The Problem of Psychopathy and Responsibility 262
VIII The Contribution of Neuroscience 265
IX The Neuroscientific Challenge to Legal Insanity and Criminal Responsibility 269
X The Potential Future Contributions of Neuroscience to Legal Insanity 271
XI Conclusion 273
Bibliography 273
Index 277
