Abstract
As scientific understanding of behavioural genetics and brain physiology have increased, so too have attempts to utilise this information in criminal cases. Defendants in a growing number of jurisdictions have sought the influence of such factors upon a favourable outcome for their trials or a reduction in the subsequent sentence received. This chapter reviews some of the most prominent international cases in which attempts have been made to introduce genetic or brain imaging evidence into criminal proceedings. The majority have taken place in the USA, which seems to have been quicker to allow consideration of this kind of evidence within the legal system. A willingness to reflect on the merits of evidence of this kind does not necessarily translate into a willingness to let it influence the decisions made. To date, there remain relatively few examples where neuroscientific evidence has had a significant impact on the outcome of the case, but there have been some, and their number is growing.
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Notes
- 1.
Daubert v Merrell Dow Pharmaceuticals, Inc, 509 US 579 (1993). Jason Daubert and Eric Schuller and their parents sued the pharmaceutical company arguing that the morning sickness drug Bendectin, taken by both mothers during pregnancy, was responsible for the limb deficiencies of their sons. Lower courts had held that epidemiological data offered by the company (showing that mothers who had taken Bendectin were not at a significantly higher risk of having children with birth defects) was more valid than in vitro and animal-model experiments supporting a link. The Supreme Court held that the lower courts had placed too much emphasis on the Frye requirement for “general acceptance” and in consequence vacated and remanded this case back to the District Court. In so doing they explicitly stated that the Federal Rules of Evidence superseded Frye.
- 2.
Frye v United States, 293 F 1013 (D.C. Cir. 1923). James Frye, being tried for second degree murdered, attempted to offer in his defence expert testimony interpreting blood pressure measurements as an early form of lie-detector test. The court found the evidence inadmissible.
- 3.
LexisNexis and Westlaw databases.
- 4.
Cullen v Pinholster 131 S. Ct. 1388 (2011).
- 5.
Habeas corpus (from the Latin “you have the body”) is a legal procedure whose origins can be traced all the way to the Magna Carta in 1215. In essence it is a safeguard against unfair incarceration, requiring an official such as a prison warden, when so requested, to present their prisoner before a judge for consideration of the legality of their detention. In the context described here, Habeas corpus is used at a federal level to check the legitimacy of a custodial sentence order by a state court.
- 6.
Mobley v State, 455 SE 2d 61 (1995).
- 7.
State v Smith 1995 WL 789245 (S.C Gen. Sess.).
- 8.
e.g. State v Ferguson, 20 S.W. 3d 485 (Mo. 2000); State v Hughbanks, 99 Ohio St, 3d 365, 2003-Ohio-4121, 792 N.E. 2d 1081 (2003); Davis v State, M2003-00744-CCA-R3-PC, 2004 WL 253396 (2004).
- 9.
Cauthern v State, 145 S.W. 3d 571 (Tenn. Crim App. 2004).
- 10.
Hall v State, 160 S.W. 3d (2004).
- 11.
People v Armstrong, 700 N.E. 2d 960 (Ill. 1998).
- 12.
The exception Morris v Malfi No. 10-16485 (9th Cir. Sep 12, 2011) differed from the others on two grounds. Firstly, the appeal was against life imprisonment (without parole) rather than capital punishment. Secondly, this was the only case in which it was argued that the defendant was incompetent at the time of the trial.
- 13.
The two-part test for the legitimacy of claiming ineffective assistance of counsel was set by the Supreme Court in Strickland v Washington 466 US 668 (1984); (i) Was counsel actually deficient? (ii) Did this deficiency prejudice the outcome of the case?
- 14.
The case [Queens County Sup. Ct, 1827 (1969)] itself is unpublished. However the facts and outcome are described in People v Yukl 372 NYS 2d 31 319-320 (1975).
- 15.
R v Hannell (unpublished).
- 16.
Mobley v. State, 455 SE 2d 61 (1995).
- 17.
Waldroup in fact received a total sentence of 32 years once other factors, such as kidnapping, were taken into account.
- 18.
US v Cossey 632 F.3d 82 (2d Cir. 2011).
- 19.
Use by plaintiffs, in an American context, has been exhaustively reviewed by Moriarty (2008).
- 20.
Hill v Baxter [1958] 1 All ER 193.
- 21.
R v Mohammed Sharif [2010] EWCA Crim 1709.
- 22.
United States v Gigante, 982 F. Supp. 140 (E.D.N.Y. 1997).
- 23.
Problems matching an individual defendant to an appropriate control group is something we will consider again in the next chapter.
- 24.
People v Goldstein, 14 AD3d 32. Goldstein’s conviction was subsequently overturned (People v Goldstein 2005 NY Int. 156), but on the grounds that his rights were violated when a psychiatrist quoted hearsay evidence from a witness who was not made available to the court for cross-examination.
- 25.
California v Carrizalez (2011), No. VCF 169926C.
- 26.
It may also demonstrate, and this is entirely speculative, that the psychological burden on jurors of having to choose in favour of the death of another person motivates them to find an alternative if there is opportunity so to do.
- 27.
People v Weinstein 591 N.Y.S.2d 715 (N.Y. Sup. Ct. 1992).
- 28.
United States v Montgomery 635 F.3d 1074 (8th Cir. 2011).
- 29.
Jackson v Calderon 2000.
- 30.
United States v Mezvinksky 206 F Supp 2d 661 (2002).
- 31.
In 2011, Governor Pat Quinn abolished capital punishment in the State of Illinois so Dugan’s sentence was commuted to life imprisonment after all (Zorn, 2011).
- 32.
In principle the same tools could be used to examine the truthfulness of key witnesses, or indeed to root out potential prejudice being concealed by judges or jurors. These latter applications have not yet reached the courts.
- 33.
United States v Semrau 693 F.3d 510 (6th Cir. 2012).
- 34.
They additionally decided that the evidence was not admissible since the prosecution had not been given prior notification of this line of defence. They thus had been offered no opportunity to scrutinise the conduct of the test which had been a risk-free strategy by Semrau (since he would not have presented the data if the results had not been in his favour, and the Government lawyers would have been none the wiser).
- 35.
The use of polygraphs in the ongoing monitoring of convicted sex offenders is currently being trialled in the UK, but there remains no intention to expand this use into courtrooms.
- 36.
Atkins v Virginia 536 US 304 (2002).
- 37.
Kennedy v Louisiana 554 US 407 (2008). An exception was made for crimes against the state, such as treason or spying, for which the death penalty could still be invoked.
- 38.
Roper v Simmons 543 US 551 (2005).
- 39.
Graham v Florida 560 US 48 (2010).
- 40.
Miller v Alabama 567 US (2012). Despite the naming of this ruling, the unrelated circumstances of a second appellant Kuntrell Jackson was also considered at the same time.
- 41.
Quoted in Miller Opinion of the Court, p5.
- 42.
There are echoes here of the infamous English case of Derek Bentley who was hanged in 1953 for his part in the murder of a police officer. It was undisputed that the fatal shot in that case had been fired by his accomplice Christopher Craig, but the phrase “Let him have it, Chris” was interpreted by the court to be an instruction to shoot rather than, as the defence contended, a suggestion that the weapon should have been surrendered to the policeman.
- 43.
Thompson v Oklahoma 487 US 815 (1988).
- 44.
Stanford v Kentucky 492 US 361 (1989).
- 45.
Amici curiae are unsolicited offers of information given to the court by interested parties.
- 46.
Roper Opinion of the Court, p15. Internal quote comes from Johnson v. Texas, 509 U.S. 350.
- 47.
As noted above, the Supreme Court had previously set 16 as the minimum, Thompson v Oklahoma 487 US 815 (1988).
- 48.
Graham Opinion of the Court, p17.
- 49.
Appeal to neuroscience was even more overt in Sullivan v Florida. However the Supreme Court ultimately decided that Sullivan was improvidently passed to them for consideration and declined to make a judgement. The details have therefore been omitted from the present discourse.
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Willmott, C. (2016). Use of Genetic and Neuroscientific Evidence in Criminal Cases: A Brief History of “Neurolaw”. In: Biological Determinism, Free Will and Moral Responsibility. SpringerBriefs in Ethics. Springer, Cham. https://doi.org/10.1007/978-3-319-30391-8_4
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