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Neurolaw in Australia: The Use of Neuroscience in Australian Criminal Proceedings

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Abstract

Recent research has detailed the use of neuroscience in several jurisdictions, but Australia remains a notable omission. To fill this substantial void we performed a systematic review of neuroscience in Australian criminal cases. The first section of this article reports the results of our review by detailing the purposes for which neuroscience is admitted into Australian criminal courts. We found that neuroscience is being admitted pre-trial (as evidence of fitness to stand trial), at trial (to support the defence of insanity and substantial impairment of the mind), and during sentencing. In the second section, we evaluate these applications. We generally found that courts admit neuroscience cautiously, and to supplement more well-established forms of evidence. Still, we found some instances in which the court seemed to misunderstand the neuroscience. These cases ranged from interpreting neuroscience as “objective” evidence to admitting neuroscience when the same non-neuroscientific psychiatric evidence would be inadmissible for being common sense. Furthermore, in some cases, neuroscientific evidence presents a double-edged sword; it may serve to either aggravate or mitigate a sentence. Thus, the decision about whether or not to tender this evidence is risky.

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Notes

  1. We are aware of two recent and well-considered works analysing Australian neurolaw that have adopted a narrow focus. First, for a focus on the fMRI methodology, see [7]. And for a focus on New South Wales sentencing decisions in which the neuroscientific evidence was a mitigating factor, see [8].

  2. See [11] for a review of the current theoretical arguments surrounding neurolaw.

  3. In adopting this scope, we follow other recent works, see, e.g., [4, 5].

  4. A large proportion of cases on the Database are not published, and the public do not have access to them. However, one of the authors (Armin Alimardani) was able to access all the cases due to his involvement with the project and was authorised to use them for the purpose of this research.

    See, https://neurolaw.edu.au.

  5. See, https://www.austlii.edu.au/austlii/guide/user_guide.pdf.

  6. The Australian jurisdictions are as follow: (i) New South Wales, (ii) Victoria, (iii) Queensland, (iv) Western Australia, (v) South Australia, (vi) Tasmania, (vii) Northern Territory and (viii) Australian Capital Territory.

  7. We will describe these criminal law concepts in Part II.

  8. [2012] SADC 47.

  9. Id. at 25.

  10. Id. at 42–43.

  11. Id. at 43.

  12. Id. at 39–59. But note that two other experts, a psychiatrist and a forensic neuropsychologist opined that Moar’s condition was not severe enough to merit a finding that he was unfit to stand trial.

  13. [2010] QMHC 6.

  14. Id. at 47–49.

  15. Id. at 24.

  16. Id. at 11–13.

  17. For other instances of the use of neuroscience for determination of accused’s fitness to stand trial see, R v Blackman [2016] NSWSC 1579; R v Wilson [2015] NSWSC 1538; Robinson, Clifford Mark v R [2008] NSWCCA 64. See also R v Littler [2001] NSWCCA 173 in which evidence of organic brain disease revealed in a CT scan support a decision to permanently stay the charges against the accused.

  18. [2010] NSWSC 638.

  19. Id. at 18.

  20. Singh 24, 37–38.

  21. Ibid.

  22. Id. at 44.

  23. [2003] SASC 109.

  24. Id. at 83, 93–128.

  25. Id. at 120.

  26. Id. at 54.

  27. Id. at 66.

  28. Id. at 57.

  29. Id. at 151.

  30. Id. at 237–238.

  31. Id. at 235. In this case, there were a number of expert witnesses who made different conclusions about accused’s mental condition. For more detailed examination of their reports please refer to the case.

  32. The defense of substantial impairment by abnormality of mind is only recognized in four Australian jurisdictions, see [20]

  33. See [20].

  34. [2014] NSWSC 1056.

  35. Id. at 59.

  36. Id. at 45.

  37. Id. at 56.

  38. Id. at 57.

  39. Id.

  40. Id. at 60.

  41. Id. at 62.

  42. Id. at 76.

  43. Id. at 75.; We will also discuss another substantial impairment case, Director of Public Prosecutions v AB [2013] NSWSC 1739 in our analysis in Part IV.

  44. For example, see R v Glanville [2010] NSWSC 364, in which damage to the accused’s frontal lobes from a motorcycle accident supported his substantial impairment defence.

  45. [1999] NSWSC 233

  46. [2013] SASC 183.

  47. Id. at 75.

  48. Id. at 65–68.

  49. Id. at 66.

  50. Id. at 65.

  51. Id. at 82.

  52. i.e., the psychiatrist, of course, could not have examined the accused while he was intoxicated, and therefore the expert’s report was not about the accused per se, but generally how brains are affected by alcohol.

  53. The State of Western Australia v Clifton [2012] WASC 302.

  54. Id. at 43–58.

  55. Id. at 54.

  56. Id. at 59–63. For more cases about memory and admission of evidence see, CDK v Commissioner of Victims Rights [2016] NSWCATAD 300; R v Hawi & ors (No 27) [2011] NSWSC 1673.

  57. R v Israil [2002] NSWCCA 255; R v Hemsley [2004] NSWCCA 228 (at 33–36).

  58. Engert (1995) 84 A Crim R 67 at 71 per Gleeson CJ; R v Hemsley [2004] NSWCCA 228.

  59. Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; also see, R v Henry (1999) 46 NSWLR 346, (Wood CJ at CL, Adam and Kirby JJ) at 46.

  60. See, R v Hemsley [2004] NSWCCA 228.

  61. Benitez v R (2006) 160 A Crim R 166; Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194

  62. For more discussion of mental condition and sentencing see [20, 23].

  63. [2015] VCC 116.

  64. [2011]. Unreported judgment. For a summary of this case see, https://neurolaw.edu.au/cases/10703.

  65. [2013] VCC 471.

  66. Id. at 1; 3; 4.

  67. Id. at 12.

  68. Id. at 13.

  69. Id. at 14.

  70. Id. at 11; 14.

  71. See, https://neurolaw.edu.au/cases/10703.

  72. [2013] VCC 47.

  73. Id. at 12; 13.

  74. Other than custodial hardship there are other sentencing factors that do not require a link between neurological impairment and criminal behaviour. For example, because an offender with brain impairment may not be a proper tool to deter the society from offending, the court may give lower consideration to general deterrence even if the brain impairment is not causally connected to offending or it occurs after the crime, see, R v Caleb James O’Connor aka John Coble [2013] NSWDC 272.

  75. [2012] NSWSC 1462.

  76. Id. at 2–13; 28.

  77. Id. at 17.

  78. Focal abnormalities in the frontal lobes and significant cerebral atrophy Id. at 21.

  79. Id. at 21.

  80. Id. at 36; Although two psychiatrists believed that the risk of re-offending was fairly low, the judge accepted the third psychiatrist’s opinion that the offender posed a risk of violence to community once he is released (Id. at 37–40).

  81. Proof of brain impairment may also have another negative outcome for the defendant. For instance, according to the Crimes (High Risk Offenders) Act 2006 (NSW), in order to prevent further offending by ‘high-risk sex and violent offenders’, the court may impose post-sentence preventive detention order or an extended supervision order at the end of the custodial sentence. See, Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld); Dangerous Sexual Offenders Act 2006 (WA); Serious Sex Offenders Act 2013 (NT); also see [24]. There are many concerns with regard to these Acts such as proportionality of the sentence, double punishment and procedural fairness. See [24,25,2655].

  82. [2012] NSWSC 1180.

  83. Id. at 5–10.

  84. Id. at 41.

  85. Id. at 30.

  86. Id. at 32, 41–43.

  87. Id. at 33.

  88. Id. at 34–36.

  89. ‘cerebral atrophy and lesions in the white matter’ Id. at 35.

  90. Id. at 31.

  91. Id. at 35.

  92. Id. at 34; 36.

  93. Id. at 37.

  94. Id. at 18; 37.

  95. Id. at 44; 45.

  96. Id. at 46.

  97. For further cases about contribution of neuroscience to sentencing in Australia see, R v Lepore [2013] SASCFC 13 (where fresh neuroscientific evidence in the appellate court required mitigation of the sentence); The Queen v Hildebrandt [2014] VSC 321 (where the offender’s frontal-lobe damage was a mitigating factor in sentencing); The Queen v Giles [2014] VSC 210 (where neuroscientific evidence indicated further consideration of future offending and protection of the society); The Queen v Furlan [2014] VSC 361 (where the offender’s acquired brain injury was a mitigating factor in sentencing); Ross v R [2006] NSWCCA 65 (where the sentence was found to be excessive for the defendant who suffered from frontal-lobe impairment); Regina v Michael James ELSWORTH [2000] NSWSC 582 (where neuroscience explained the criminal behaviour); R v Tortell, R v Tsegay [2007] NSWCCA 313 (where neuroscientific evidence indicated frontal-lobe damage); R v Millard [2014] ACTSC 267 (where neuroscience reduced the consideration of moral culpability).

  98. [2012] NSWSC 1462

  99. [1979] HCA 7; (1979) 143 CLR 458

  100. Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465 (29 March 1988).

  101. Also, in R v Morton [2010] NTSC 26, EEG and MRI scans confirmed brain damage and temporal lobe epilepsy resulting in mental impairment, that led to a reduced weight given to moral culpability, and general and specific deterrence, but resulted in a greater consideration of the need to protect society from the risk of recidivism.

  102. Similar to this study, an empirical study in the U.S. by Deborah Denno titled “The Myth of the Double-Edged Sword: An Empirical Study of Neuroscience Evidence in Criminal Cases” indicates that only in a few cases neuroscience is an indicative of the offender’s risk of recidivism. [5]

  103. Roper v. Simmons, 543 U.S. 551 (2005).

  104. Graham V. Florida, 560 U.S. 48 (2010).

  105. [2016] VSCA 66.

  106. Majority decision.

  107. Id. at 7.

  108. Id. at 8.

  109. Id. at 26.

  110. Id. at 27. For a similar case see, R v Hawkins [2015] ACTSC 333 at 64, “[the offender’s] age is also relevant in itself. He is still a relatively young man and neuroscience shows that the male brain is not fully mature and developed until mid twenties.”

  111. R v Khosravi, Alborz [2008] NSWDC 298 at 1.

  112. Id. at 71.

  113. [2010] NSWSC 171.

  114. Id. at 27.

  115. Beyond the cases reviewed above, see also R v Santos [2001] NSWSC 923 where the offender’s substantial impairment defence (manslaughter) was based on three contributory factors. First, the offender suffered personality change (i.e. irritable and predisposed to losing temper) as the result of a head injury. Neuropsychological testing also showed cognitive impairment as another result of head injury. The third factor was depression that according to expert report “added to his difficulties in understanding [victim’s] actions and resolving the issues which arose from them.” (at 20) While none of these factors seems to be sufficient to substantially impair the offender’s abilities, the combination of these factors met that threshold.

  116. Uniform evidence jurisdictions are New South Wales, Tasmania, Victoria, the Northern Territory, and the Australian Capital Territory.

  117. The neurolaw literature mainly criticises the use of brain imaging evidence and it seems there is less concern about other types of neuroscientific evidence (See [45, 46]). As such, the main focus of this section is on cases that brain imaging evidence is discussed because that seem to present to most possibility for prejudice.

  118. [2011] NSWDC 103.

  119. MRI and EEG scans did not indicate any abnormality. But the third test a Ceretec Brain Perfusion Study, showed some abnormalities. Id. at 20, 24.

  120. Id. at 40–43.

  121. Id. at 40.

  122. Id. at 46, 47.

  123. [2013] NSWSC 1739.

  124. See Part II for a description of substantial impairment.

  125. Id. at 51.

  126. Ibid.

  127. Id. at 52. It is noteworthy that as discussed above in cases such as Berlingo and Re Ma’a that malingering is suspected neuroscientific evidence might be helpful and provide additional information on which to base a diagnosis.

  128. R v Haidley and Alford [1984] VR 229 at 233, quoting R v Darrington and McGauley [1980] VR 353. And for similar reasoning see R v Morgan [1986] 2 Qd R 627 at 656; R v Carn [1982] 5 A Crim R at 469–470.

  129. H, LP at 66.

  130. Although note that H, LP was a judge alone trial and thus the trial judge may have been more permissive towards the evidence for that reason. Still, the contrast between the traditional position whereby intoxication evidence is irrelevant and the trial judge in H, LP taking the time to specifically report the “neuroscientific” opinion evidence about intoxication is striking. We cannot, however, conclusively rule out other distinctions between H, LP and the traditional position towards evidence of the effects of extreme intoxication.

  131. The two main standards of proof are ‘beyond reasonable doubt’ and ‘on the balance of probability’. When the ultimate fact in question is to the detriment of the accused/offender, the standard is the former, and when it is for their benefit, the standard is the latter.

  132. For instance, in R v McCann (discussed above) two psychiatrists suggested that the offender posed a low risk of re-offending. However, the court, based on the irreversible condition of the offender’s brain and another psychiatrist’s report (i.e. referred his ‘dementing process’), concluded that the offender was a danger to the community.

  133. And this is consistent with empirical research examining the effect of neuroscientific jargon on laypeople. See [29].

References

  1. Chandler, Jennifer A. 2016. The use of neuroscientific evidence in Canadian criminal proceedings. Journal of Law and the Biosciences 2. Oxford University Press: 550–579.

    Google Scholar 

  2. Catley, Paul, and Lisa Claydon. 2015. The use of neuroscientific evidence in the courtroom by those accused of criminal offenses in England and Wales. Journal of Law and the Biosciences 2. Oxford University Press: 510–549.

    Google Scholar 

  3. de Kogel, C.H., and E.J.M.C. Westgeest. 2015. Neuroscientific and behavioral genetic information in criminal cases in the Netherlands. Journal of Law and the Biosciences 2: 580–605. https://doi.org/10.1093/jlb/lsv024.

    Article  Google Scholar 

  4. Farahany, Nita A. 2016. Neuroscience and behavioral genetics in US criminal law: an empirical analysis. Journal of Law and the Biosciences 2. Oxford University Press: 485–509.

    Google Scholar 

  5. Denno, Deborah W. 2015. The Myth of the Double-Edged Sword: An Empirical Study of Neuroscience Evidence in Criminal Cases. Boston College Law Review 56. Boston College School of Law: 493–551.

    Google Scholar 

  6. Denno, Deborah W. 2016. How Prosecutors and Defense Attorneys Differ in Their Use of Neuroscience Evidence. Fordham L. Rev. 85. HeinOnline: 453–479.

    Google Scholar 

  7. Houston, L, and A Vierboom. 2012. Neuroscience and law: Australia. International Neurolaw. Springer Berlin Heidelberg: 11–42.

    Google Scholar 

  8. Page, Ellie A. 2017. The Criminal Mind: Neuroscientific Evidence as a Mitigating Factor in Sentencing in New South Wales, Australia. Pac. Rim L. & Pol’y J. 26. HeinOnline: 659–691.

    Google Scholar 

  9. Dumit, Joseph. 1999. Objective brains, prejudicial images. Science in Context 12. Cambridge University Press: 173–201.

    Article  Google Scholar 

  10. Morse, Stephen J. 2005. Brain overclaim syndrome and criminal responsibility: A diagnostic note. Ohio St. J. Crim. L. 3. HeinOnline: 397.

    Google Scholar 

  11. Slobogin, Christopher. 2017. Neuroscience nuance: dissecting the relevance of neuroscience in adjudicating criminal culpability. Journal of Law and the Biosciences 4: 577–593. https://doi.org/10.1093/jlb/lsx033.

    Article  Google Scholar 

  12. Szucs, Denes, and John P.A. Ioannidis. 2017. Empirical assessment of published effect sizes and power in the recent cognitive neuroscience and psychology literature. PLoS Biology 15. Public Library of Science: e2000797. https://doi.org/10.1371/journal.pbio.2000797.

    Article  Google Scholar 

  13. Faigman, David L, Richard J Bonnie, B J Casey, Andre Davis, Morris B Hoffman, Owen D Jones, Read Montague, Stephen Morse, Marcus E Raichle, and Jennifer A Richeson. 2016. G2i Knowledge Brief: A Knowledge Brief of the MacArthur Foundation Research Network on Law and Neuroscience. MacArthur Foundation Research Network on Law and Neuroscience.

  14. Buckholtz, Joshua W, Valerie F Reyna, and Christopher Slobogin. 2016. A neuro-legal lingua franca: Bridging law and neuroscience on the issue of self-control. (Forthcoming; Vanderbilt Public Law Research Paper No. 16–32) Mental Health Law & Policy Journal.

  15. Raine, A. 2013. The anatomy of violence: The biological roots of crime. Vintage. Vintage.

  16. Campbell, Ian Graham. 1988. Mental disorder and criminal law in Australia and New Zealand. Lexis Pub.

  17. Freckelton, Ian. 1996. Rationality and flexibility in assessment of fitness to stand trail. International Journal of Law and Psychiatry 19. Elsevier Science: 39–59.

    Article  Google Scholar 

  18. Mullen, Paul E. 2002. Commentary: Competence assessment practices in England and Australia versus the United States. Journal of the American Academy of Psychiatry and the Law Online 30. American Academy of Psychiatry and the Law: 486–487.

    Google Scholar 

  19. Samuels, Anthony, Colman O’Driscoll, and Stephen Allnutt. 2007. Fitness issues in the context of judicial proceedings. In Australasian Psychiatry, vol. 15, 212–216. London: SAGE Publications Sage UK.

    Google Scholar 

  20. Bronitt, Simon, and Bernadette McSherry. 2017. Principles of Criminal Law. Thomson Reuters (Professional) Australia Pty Limited. 4th ed.

  21. Allnutt, Stephen, Anthony Samuels, and Colman O’driscoll. 2007. The insanity defence: from wild beasts to M’Naghten. Australasian Psychiatry: Bulletin of Royal Australian and New Zealand College of Psychiatrists 15: 292–298. https://doi.org/10.1080/10398560701352181.

    Article  Google Scholar 

  22. Morse, Stephen J. 2002. Uncontrollable urges and irrational people. Virginia Law Review. JSTOR: 1025–1078.

    Article  Google Scholar 

  23. McSherry, Bernadette, and Bronwyn Glynis Naylor. 2004. Australian criminal laws: Critical perspectives. Melbourne: Oxford University Press.

    Google Scholar 

  24. Tulich, Tamara. 2015. Post-Sentence Preventative Detention and Extended Supervision of High Risk Offenders in New South Wales. UNSWLJ 38. HeinOnline: 823–853.

    Google Scholar 

  25. McSherry, Bernadette. 2005. Indefinite and preventive detention legislation: From caution to an open door. Criminal Law Journal 29: 94–110.

    Google Scholar 

  26. Keyzer, Patrick, Cathy Pereira, and Stephen Southwood. 2004. Pre-emptive imprisonment for dangerousness in Queensland under the Dangerous Prisoners (Sexual Offenders) Act 2003: The constitutional issues. Psychiatry, Psychology and Law 11. Taylor & Francis: 244–253.

    Article  Google Scholar 

  27. Schweitzer, Nicholas J., Michael J. Saks, Emily R. Murphy, Adina L. Roskies, Walter Sinnott-Armstrong, and Lyn M. Gaudet. 2011. Neuroimages as evidence in a mens rea defense: No impact. Psychology, Public Policy, and Law 17. American Psychological Association: 357–393.

    Article  Google Scholar 

  28. Legrenzi, Paolo, and Carlo Umiltà. 2011. Neuromania: On the limits of brain science. Translated by Frances Anderson. New York: Oxford University Press.

    Book  Google Scholar 

  29. Weisberg, Deena Skolnick, Frank C. Keil, Joshua Goodstein, Elizabeth Rawson, and Jeremy R. Gray. 2008. The seductive allure of neuroscience explanations. Journal of Cognitive Neuroscience 20. MIT Press: 470–477.

    Article  Google Scholar 

  30. Jones, OD, and FX Shen. 2012. Law and neuroscience in the United States. In International Neurolaw: A Comparative Analysis, ed. Tade Matthias Spranger, 349–380. Springer.

  31. Steinberg, Laurence. 2009. Adolescent development and juvenile justice. Annual Review of Clinical Psychology 5. Annual Reviews: 459–485.

    Article  Google Scholar 

  32. Scott, Elizabeth S., Richard J. Bonnie, and Laurence Steinberg. 2016. Young Adulthood as a Transitional Legal Category: Science, Social Change, and Justice Policy. Fordham L. Rev. 85. HeinOnline: 641–666.

    Google Scholar 

  33. Grisso, Thomas, and Antoinette Kavanaugh. 2016. Prospects for developmental evidence in juvenile sentencing based on Miller v. Alabama. Psychology, Public Policy, and Law 22. American Psychological Association: 235–249.

    Article  Google Scholar 

  34. Scott, Elizabeth, Thomas Grisso, Marsha Levick, and Laurence Steinberg. 2015. The Supreme Court and the transformation of juvenile sentencing. New York: Trustees of Columbia University.

    Google Scholar 

  35. Cohen, Alexandra O., Kaitlyn Breiner, Laurence Steinberg, Richard J. Bonnie, Elizabeth S. Scott, Kim Taylor-Thompson, Marc D. Rudolph, et al. 2016. When Is an Adolescent an Adult? Assessing Cognitive Control in Emotional and Nonemotional Contexts. Psychological Science 27. SAGE Publications Inc: 549–562. https://doi.org/10.1177/0956797615627625.

    Article  Google Scholar 

  36. Cohen, Alexandra O., Richard J. Bonnie, Kim Taylor-Thompson, and B.J. Casey. 2015. When Does a Juvenile Become an Adult: Implications for Law and Policy. Temp. L. Rev. 88. HeinOnline: 769–943.

    Google Scholar 

  37. Cauffman, Elizabeth, and Laurence Steinberg. 2012. Emerging findings from research on adolescent development and juvenile justice. Victims & Offenders 7. Taylor & Francis: 428–449.

    Article  Google Scholar 

  38. Shen, Francis X. 2010. The Law and Neuroscience Bibliography: Navigating the Emerging Field of Neurolaw. International Journal of Legal Information 38: 352–399.

    Article  Google Scholar 

  39. Morse, Stephen. 2018. Neuroscience Evidence in Forensic Contexts: Ethical Concerns. In Ethics Challenges in Forensic Psychiatry and Psychology Practice, ed. Ezra Griffith, 132–158. New York: Columbia University Press. 

  40. Vul, Edward, Christine Harris, Piotr Winkielman, and Harold Pashler. 2009. Puzzlingly high correlations in fMRI studies of emotion, personality, and social cognition. Perspectives on Psychological Science 4. SAGE Publications Sage CA: Los Angeles: 274–290.

    Article  Google Scholar 

  41. Poldrack, Russell A., John Monahan, Peter B. Imrey, Valerie Reyna, Marcus E. Raichle, David Faigman, and Joshua W. Buckholtz. 2018. Predicting Violent Behavior: What Can Neuroscience Add? Trends in Cognitive Sciences 22: 111–123. https://doi.org/10.1016/j.tics.2017.11.003.

    Article  Google Scholar 

  42. Bennett, Elizabeth. 2016. Neuroscience and Criminal Law: Have We Been Getting It Wrong for Centuries and Where Do We Go from Here. Fordham L. Rev. 85. HeinOnline: 437–451.

    Google Scholar 

  43. Heydon, John Dyson, and Sir Rupert Cross. 2015. Cross on evidence. LexisNexis Australia.

  44. Bright, David A., and Jane Goodman-Delahunty. 2006. Gruesome evidence and emotion: anger, blame, and jury decision-making. Law and Human Behavior 30. Germany: Springer: 183–202.

    Article  Google Scholar 

  45. Glannon, Walter. 2014. The Limitations and Potential of Neuroimaging in the Criminal Law. The Journal of Ethics 18: 153–170. https://doi.org/10.1007/s10892-014-9169-y.

    Article  Google Scholar 

  46. Brown, Teneille R, and Emily R Murphy. 2010. Through a scanner darkly: functional neuroimaging as evidence of a criminal defendant’s past mental states. Stanford law review 62.

  47. Morse, S., and W. Newsome. 2013. Criminal responsibility, criminal competence, and prediction of criminal behavior. In A Primer on Criminal Law and Neuroscience, eds. Stephen J. Morse and Adina L. Roskies, 150–178. New York: Oxford University Press.

    Chapter  Google Scholar 

  48. Satel, Sally, and Scott O. Lilienfeld. 2013. Brainwashed: The Seductive Appeal of Mindless Neuroscience. In Basic Books. New York: Basic Books.

    Google Scholar 

  49. Sprooten, Emma, Alexander Rasgon, Morgan Goodman, Ariella Carlin, Evan Leibu, Won Hee Lee, and Sophia Frangou. 2017. Addressing reverse inference in psychiatric neuroimaging: Meta-analyses of task-related brain activation in common mental disorders. Human Brain Mapping 38. Wiley Online Library: 1846–1864. https://doi.org/10.1002/hbm.23486.

    Article  Google Scholar 

  50. Shen, Francis X., Emily Twedell, Caitlin Opperman, Jordan Dean Scott Krieg, Mikaela Brandt-Fontaine, Joshua Preston, Jaleh McTeigue, Alina Yasis, and Morgan Carlson. 2017. The limited effect of electroencephalography memory recognition evidence on assessments of defendant credibility. Journal of Law and the Biosciences 4: 330–364. https://doi.org/10.1093/jlb/lsx005.

    Article  Google Scholar 

  51. Rhodes, Rebecca E, Fernando Rodriguez, and Priti Shah. 2014. Explaining the alluring influence of neuroscience information on scientific reasoning. Journal of Experimental Psychology: Learning, Memory, and Cognition 40. American Psychological Association: 1432.

  52. Jones, Owen D. 2013. Seven Ways Neuroscience Aids Law. In Neurosciences and the Human Person: New Perspectives on Human Activities, ed. Antonio M. Battro, Stanislas Dehaene, Marcelo Sánchez Sorondo, and Wolf J. Singer, 181. Vatican City: The Pontifical Academy of Sciences.

    Google Scholar 

  53. Farahany, Nita A., and James E. Coleman Jr. 2009. Genetics, Neuroscience, and Criminal Responsibility. In The impact of behavioral sciences on criminal law, ed. Nita A. Farahany, 183–240. New York: Oxford University Press.

    Chapter  Google Scholar 

  54. Barth, Abram S. 2007. A double-edged sword: The role of neuroimaging in federal capital sentencing. American Journal of Law & Medicine 33: 501–522.

    Article  Google Scholar 

  55. Keyzer, Patrick, and Bernadette M. McSherry. 2006. The Preventive Detention of “Dangerous” Sex Offenders in Australia: Perspectives at the Coalface. International Journal of Criminology and Sociology 2: 296–305.

    Google Scholar 

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Acknowledgements

Special thanks to Prof. Gary Edmond, Dr. Allan McCay, Prof. Nicole Vincent and anonymous reviewers for providing feedback that greatly improved the manuscript.

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Authors and Affiliations

  1. School of Law, The University of New South Wales, Sydney, Australia

    Armin Alimardani

  2. TC Beirne School of Law, University of Queensland, Brisbane, Australia

    Jason Chin

  3. School of Psychology, University of Queensland, St Lucia, Australia

    Jason Chin

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Appendix

Appendix

Following our review of criminal cases on the Australian Neurolaw database we sorted them into different categories such as ‘fitness to stand trial’, ‘sentencing’, ‘the juvenile brain’, and ‘the brain and memory’. As our categories were largely based on a review of cases in the Australian Neurolaw Database, the general search on AustLII aimed to find any other reasons for the use of neuroscience in Australia that were not included in the Australian Neurolaw Database.

We used a variety of keywords including ‘neuroscience’, ‘brain’, ‘neuropsychology’, ‘EEG’, ‘MRI’, ‘CT scan’, ‘fMRI’ and ‘SPECT scan’. As the result of our search thousands of cases were produced; however, as the purpose of this study is to explore different uses of neuroscience in criminal courts, we purposefully reviewed a number of cases to find out whether neuroscience is used in a way that we had not previously considered. Accordingly, revision of cases ended when we could not find any new use of neuroscience.

In order to identify cases where neuroscience was used for specific purposes, we used Boolean operators. For instance, to find cases in which reference is made to both ‘memory’ and ‘the brain’, we searched ‘brain AND memory’. We also used more complex searches such as ‘(false/5/memory) AND brain AND eyewitness’. This only produced results in which ‘brain’, ‘eyewitness’, ‘false’ and ‘memory’ were noted in the case, and where there are not more than 5 words between ‘false’ and ‘memory’. This approach (proximity operator) helped to avoid cases where irrelevant combinations (i.e. ‘false accusation’ and ‘childhood memory’) are noted in different parts of the judgement.

We then sorted the cases into different categories (similar to our categories on the Australian Neurolaw Database). A review of the dataset indicated that in some categories all the cases were from a single jurisdiction (i.e. New South Wales). We conducted a further search to balance the distribution of cases from different jurisdictions. As such, our research better represents the use of neuroscience in Australia.

Of the 779 cases that we reviewed, a proportion of the cases were irrelevant to the study and were excluded. For instance, in many cases neuroscientific tests, such as MRI and CT scans, were used to examine other body parts than the brain, or were conducted on the victim rather than the accused/offender. Occasionally the cases were also the same as those listed on the Australian Neurolaw Database.

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Alimardani, A., Chin, J. Neurolaw in Australia: The Use of Neuroscience in Australian Criminal Proceedings. Neuroethics 12, 255–270 (2019). https://doi.org/10.1007/s12152-018-09395-z

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  • DOI: https://doi.org/10.1007/s12152-018-09395-z

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