Not guilty

An American schoolteacher was found guilty of making sexual advances to his young stepdaughter. But on the day before he was to be sentenced he complained that he was losing his balance. He was discovered to have a large tumour pressing on his orbitofrontal cortex, a brain area regulating social behaviour and impulse control. Removal of the tumour brought about a return of his personality to his previous, normal behaviour. Some time later his inappropriate behaviour returned. It was discovered that his tumour had re-grown and, once again, removal returned his behaviour to normal. The drama of this near miscarriage of justice demonstrates how the brain may overcome the freedom of the will, and what effect this might have on the legal process.

Understandably, this has caused a flurry of action and investigation into the issue. The questions raised are of great importance and it is clear that, although some tentative answers can be made, both neuroscience and the legal system have a long way to go. Those with a professional interest may look up the comprehensive document from the Royal Society (see link at the end of this article), but here are some pointers.

There is a natural antipathy between the law, which attempts to discover and punish criminal responsibility, and neuroscience, which presents evidence suggesting that the accused is the creature of the brain which reduces and perhaps removes the freedom necessary for guilt. The case of the schoolteacher is clear but not typical. But the issues are of interest to us since they have a direct bearing on free will and so our understanding of virtue and sin. I will look at this latter question in another column but here I give a representative selection of some areas of legal interest.

What should be the minimum age for criminal responsibility? Neuroscience tells us that neural circuits controlling behaviour mature late, while the elements concerned with emotion and reward mature early. This suggests that we should raise the age from 10 to at least the mid teens, in line with several European countries.

We deplore violent anti-social behaviour without being aware that there may be a genetic fault which affects a vital neurotransmitter, or that this offender is unable to recognise the emotions of others, or that a psychopath may have damaging changes in his brain. And these are aggravated cases. Into human decision, as we know by introspection, enter a whole range of causes which may affect freedom.

But the lawyers are wary. They are used to considering the influences which act on a criminal and, while they accept the possibility of the distortions of the brain, as yet they have their doubts. For instance, they say that neuroscience looks at tendencies which are measurable in groups, but the law is concerned with considering the individual. They believe that university students, frequently used for group studies, may give atypical results. Nor are they blind to the fact that many published studies are corrupted by poor or dishonest methodologies.

They are wary of statistical interpretations. It will be a long time before they forget the expert who multiplied the chances of two cot deaths in a family, instead of adding them. They do not deny the possibility of neuroscience detecting relevant information but they do claim that it must prove its case.

There are other areas. An important one is the understanding of attention and memory. A witness, albeit reflecting accurately in his visual cortex, may only be attending consciously to certain features. Thus he may “misremember” an incident.

The accuracy of identification parades is questionable. Unconscious collusion between groups of witnesses can corrupt their memories. Suggestive police interrogation can infiltrate memories. False confessions are common. The decay of memory in short periods of time is not fully appreciated. Neuroscience can help here, although the reluctance of the courts to use its resources is regrettable. Juries are not invariably briefed on these inducements to error.

Given that old-fashioned lie detection methods are suspect, we might hope that brain scans would be more reliable. Unfortunately, this is an area where it is difficult to conduct studies which test realistic situations. People can learn effective countermeasures to give false readings, and the difficulty of detection, when a subject has come to believe the lie, remains. So far, the picture is not optimistic.

We may hope that developments in neuroscience in the future will enable the courts to detect the extent of responsibility more accurately. Indeed, some would wish for the concept of responsibility to be abandoned. In that case the survival of our legal system would depend on its utility through punishment to inhibit the temptation to anti-social behaviour. The very word “justice” would be otiose.

Certainly, a deeper understanding of motivation will be valuable in controlling crime, and we may learn much about matching punishment more closely to the individual criminal. This would include risk assessments when release or parole is being considered.

It is no secret that our system of legal sanctions does little to induce the criminal to conform – and may perhaps contribute to the problem. Any contribution here from neuroscience would be a boon.

So neuroscience can potentially join genetics and psychology as part of the evidence through which the law can better establish responsibility. We are still at an early stage but we must suppose that its contribution will grow as we learn more. Come and tell us what you think at, where you will find a link to the Royal Society paper.

Link to Royal Society paper Neuroscience and the Law:

About Quentin

Portrait © Jacqueline Alma
This entry was posted in Bio-ethics, Catholic Herald columns, Moral judgment, Neuroscience and tagged , , . Bookmark the permalink.

28 Responses to Not guilty

  1. Vincent says:

    This seems to put a whole new face on the question of judging people. How are we know, from Hitler to an irritated contributor to this blog, how guilty people may be for their apparent faults?
    Even when we attempt to judge ourselves we may be wildly off the mark. Perhaps my virtues and my vices are triggered by my subconscious.
    I look, for example, at John N and John C on this blog, and note that they typically approach issues from opposed points of view. Are their conclusions rational, or are they simply the result of their respective pasts?

  2. John Thomas says:

    I would just say as a caution that we must not always assume that everything “science” claims to tell us is a) reliable, and also – perhaps more importantly – b) innocent of any ideological bias. All science is dependent on government money, and governments mean politicians – not at all the most reliable source of objectivity. I am sceptical (until it is proved otherwise) of all “scientific information” which accords with the world view/values of politicans and governments, and the “spirit of the age” (I call this “Ideologically directed/politically determined” science). This scepticism includes scepticism of neuroscientists.

    • Quentin says:

      John, you are right to be wary. There is no such thing as a scientific truth – only the best explanation currently available for the phenomena in question. I don’t think government money is the big danger – a scientist earns his reputation (and perhaps career) largely by what he publishes, and there is a long history of questionable results ranging from minor flaws right up to fraud. (I know, I keep a fat file on the subject.)

      Nevertheless, even in a topic like psychology – which is bound to produce less clear cut results than the hard sciences – there are enough excellent studies done to give one the confidence to rely on them. Here I am thinking of peer reviewed studies published in reputable organs. Even so, I prefer to look at the original work and, in particular, the margins of error in the data.

      In the topic of how our brains deal with the stimuli from the senses is so well documented that, even if the occasional study is problematic, the general drift is clear. While we must always keep a question mark – however small – in our heads, it would be perverse to reject the general results. Neuroscience is a relatively new term — but it is just the latest stage of study that has a long history behind it.

      • Rahner says:

        “There is no such thing as a scientific truth”
        Quentin, How would you justify this claim?

      • Quentin says:

        It’s not a claim it’s a truism. Karl Popper, one of the greats, gave as a necessary characteristic of a scientific statement that it should be falsifiable. He argued that, however likely a scientific statement might be, it is open to being disproved by new facts or new understandings.

      • Nektarios says:

        If Karl Popper’s view of Science is correct, then we lay great store by that which is subject to changes with the increase of knowledge.
        While changes will always occur, it is necessary to hold fast to the Truth once delivered.
        Science, has its place, but it does not know or has the place to say what Truth is.
        It can proffer its ideas, theories and extrapolations upon repetitive experiments, but even then, it is but a part of something else not yet fully understood even by we Christians.

        As Science has made in knowledge great strides as Scripture says, in the last days
        knowledge shall be increased, it proudly struts the world stage as the artibtars of Truth.
        Has Common sense truly died – it seems it has?

  3. Nektarios says:

    Quentin & Fellow bloggers,

    While sciences can look for the repetitive, the mechanical, the illusional and it has some merit,
    But excuse me for being a little cynical, because all this is breeding dependency by interested parties, and decries good old common sense. I think this Obiturary to Common sense
    sums up most of the arguments – it may seem funny, but it is far from that, there are very serious matters here that we are abdicating common sense to the specialists as the authorities that have got anything to say:

    Today we mourn the passing of a beloved old friend, Common Sense, who
    has been with us for many years. No one knows for sure how old he was,
    since his birth records were long ago lost in bureaucratic red tape.

    He will be remembered as having cultivated such valuable lessons as:

    – Knowing when to come in out of the rain;
    – Why the early bird gets the worm;
    – Life isn’t always fair;
    – And maybe it was my fault.

    Common Sense lived by simple, sound financial policies (don’t spend
    more than you can earn) and reliable strategies (adults, not children,
    are in charge).

    His health began to deteriorate rapidly when well-intentioned but
    overbearing regulations were set in place. Reports of a 6-year-old boy
    charged with sexual harassment for kissing a classmate; teens
    suspended from school for using mouthwash after lunch; and a teacher
    fired for reprimanding an unruly student, only worsened his condition.

    Common Sense lost ground when parents attacked teachers for doing the
    job that they themselves had failed to do in disciplining their unruly

    It declined even further when schools were required to get parental
    consent to administer sun lotion or an aspirin to a student; but could
    not inform parents when a student became pregnant and wanted to have
    an abortion.

    Common Sense lost the will to live as the churches became businesses;
    and criminals received better treatment than their victims.

    Common Sense took a beating when you couldn’t defend yourself from a
    burglar in your own home and the burglar could sue you for assault.

    Common Sense finally gave up the will to live, after a woman failed to
    realise that a steaming cup of coffee was hot. She spilled a little in
    her lap, and was promptly awarded a huge settlement.

    Common Sense was preceded in death,
    -by his parents, Truth and Trust,
    -by his wife, Discretion,
    -by his daughter, Responsibility,
    -and by his son, Reason.

    He is survived by his 5 stepbrothers;
    – I Know My Rights
    – I Want It Now
    – Someone Else Is To Blame
    – I’m A Victim
    – Pay me for Doing Nothing

    Not many attended his funeral because so few realised he was gone.

  4. Rahner says:

    Quentin, I am not entirely clear as to what the original claim was supposed to mean. Scientific claims are empirical claims. If true, they are contingently true claims that are fallible but corrigible.
    Popper defended a realist understanding of scientific theories and the correspondence theory of truth. Moreover his account of verisimilitude does, of course, require us to be able to compare the truth content of competing scientific theories, see “Conjectures and Refutations”, p.233.

  5. Iona says:

    The theory of evolution is not falsifiable. There is plenty of evidence supporting it. However, what discovery or event might falsify it?

    • Nektarios says:

      What discovery or event, might falsify it?
      I don’t think you really listened to that scientist/ mathematician in the clip I sent to the blog
      from `Conception to Birth’, said.

      Let’s say, question the theory of evolution, instead of falsify, that way we can at least look,together at it, observe it and see, instead of merely accepting what some one has said?

      The theory of evolution, is a product of thought, the observable, and the repetitive. and being a product of thought is also limited. This is a fact.
      The genetic is not repetitive exactly either in animals or humans, there are changes. They know this takes place, but do not know how or why? This is a fact.
      There are aspects of YOU that are of the earth, or the dust of the earth to be more precise, and there are aspects of YOU that are not of Time, or even this dimension.
      Were you able to see this actually, you would see, this too is a fact.

      The formation of YOU within the womb, is of an order and of such mathematical complexity, that dear mathematician could only put it down to the Divine. How could he do otherwise, yet the forum of TED is a humanist one. That is a fact.

      Again, in the formation of YOU, there were so many communications going on simultaneously, that even if we added all the super computers together, could not
      compute per mili-second the billions of changes going on at once. That is a fact.
      I recognise the limits to the theory of evolution. I do not agree with some of its assertions,
      such as we are all decended from apes because we sort of look like them.
      You have, as another example, more similarity to a banana gentically, than to an ape or monkey. and that, my dear Iona, is also a fact.

      • tim says:

        I’m sorry, Nektarios, I have to challenge your assertion that Iona is genetically more similar to a banana than an ape. Why do you think this? On what basis do you assert it is a fact? Please support this or withdraw it. If you do not, it will be difficult (for me, at least, and probably for others) to continue to take seriously your contributions to the discussions.

    • Quentin says:

      Iona, it is necessary to understand the sense in which science applies falsifiability. It stems from the fact that a scientific statement depends on empirical evidence. But we cannot know that there is no further empirical evidence which might falsify our initial conclusion because that would involve demonstrating a negative. The classic example is the statement that all swans are white — only to discover, centuries later, that some swans are black.

  6. Nektarios says:


    I have said the same as you several times over in various topics on the blog where it was
    applicable, and in my answer to Iona.
    You say , that a scientific statement depends on empirical evidence.

    I said to Iona, it is a product of Thought, that is, of the observable and repetitive.

    You say, `we cannot know that there is no further empirical evidence which might falsify
    our initial conclusion.’
    I said to Iona, Thought, is limited.
    Must we be straining at a gnat about such simple things,or perhaps I am not communicating on the blog sufficiently well?
    If you want to make it solely a scientific blog – fine, but if it is an exploration of faith also and together, then I am speaking the language of that which is lived, deduced and discovered by faith.
    Can we move forward, please?

    • Quentin says:

      It is a Blog about both science and faith; therefore we must first be precise about both before we can usefully consider whether they are opposed or in harmony.

      • Nektarios says:

        From a faith standpoint, I am being accurate.
        I will however qualify that by saying, that so many documents of Church do not proceed from faith, but simply thinking.
        The Faith once delivered was not a matter of something thought up by man as many a scientist, humanist and secularist will tell you.
        But alas, that which declared to be the FAITH, is little more than Thought, but faith perse
        is not of Thought by us, or your Magisterium, those walking talking theological encyclopedias,
        Its modus operenda is totally different.The end game of faith, like faith itself is communicated, but lies beyond Thought.

        Not being a scientist in the specialities they research, I cannot be be as specific in terminology as they are, Perhaps when using scientific jargon or indeed theological
        jargon, it would save a lot of time if either you or someone else supplied a glossary of terminology, abbreviations and definitions it would save a lot of time trying to communicate.
        I appreciate there are some on the blog with their specific specialities and interests
        and they speak out of that training and position. It does make communicating difficult
        if we are not somewhere along the line meeting each other mentally, intellectually
        or spiritually.

  7. mike Horsnall says:

    Quentin, I like you example of the swans. It seems to me that the theory of evolution is definitely falsifiable-intelligent design seeks to falsify it every day and claims an evidence base to do so. I find this sort of thing quite interesting as I think it likely that the theory of evolution (political theory though it is) will sooner or later be falsified in the same way that the medieval view of the concentric shells of the universe-or the idea of a flat earth were falsified. we were idly speculating at Oscott a few weeks ago as to what would happen if science claimed to have verified a discovery of Jesus’ skeleton!

    • Quentin says:

      We need to keep in mind that falsifiability is only a characteristic of scientific propositions. That is, they are falsifiable in principle. It tells us nothing about whether a proposition is likely to be falsified or so well evidenced that this would be extremely unlikely.

  8. Nektarios says:

    There is no similarity to Iona and a banana, however genetically our genetic structure is 98% similar to a banana, and it is less with a ape or monkey.
    This is old information and nothing new in it, but please don’t take my word for it, seek out your
    scientific people.
    I know it it is rather humbling for us to think our nearest relative is a banana – but then again,
    lots of us like bananas, and is also one of the best food one can eat.
    When it comes to genetics, 1% difference in the gene set up can be the difference between a flower and some other creature,
    2% difference sees huge changes in outward form, such as the difference between a banana and a human being.
    Having said all that, concerning human beings, there is thatof us and our constitution, (made in thee image of God), which has nothing directly to do with our gentetic makeup.
    Where our genes as matter, the universe and all that are concerned there isa unity, and that unity is energy.

    • Horace says:


      Here’s some other common animals and our genetic similarites (these numbers are consistent across all reliable sources):

      Cat: 90%
      Cow: 80%
      Mouse: 75%
      Fruit Fly: 60%
      Banana: 50%

      • Quentin says:

        Although these figures are correct they can still be misleading. This is because genes work in many different combinations bringing about many different effects. And this is further complemented by epigenetic effects. A banana may have 50% of the genes while the similarity of the genetic outcome is vastly different. You may be interested to read the column: Chattering Chimpanzees (search box), which gives a relevant example of the process.

      • tim says:

        Thank you, Horace.

        Nektarios, when you make a statement which I express extreme doubt about, it is not sufficient to tell me to look it up for myself on the Internet. If you want me to respect what you say, you must be prepared to give chapter and verse when I ask for it. When looking things up on the Internet, I apply the words of Thomas Love Peacock: “I only question, Sir, where I expect a reply: which, from what manifestly has no existence, I am not visionary enough to anticipate!” (Headlong Hall)

      • mike Horsnall says:

        There you go Nektarios

        You have the proud distinction of being the only one thats 98% bananas……..amazing thing genetics isn’t it….

  9. John Nolan says:

    I remember that forty years ago when Hans Eysenck suggested a genetic component to criminal behaviour he was vilified by the Left, who accepted as an article of faith that human behaviour, and even intelligence, were solely determined by environment. Thirty years ago if an educationalist had suggested that boys and girls behave and learn in different ways because their brains are differently ‘wired’, he would have been treated as a heretic by the educational establishment. In both these cases advances in neuroscience have tended to reinforce ‘common sense’ and have trumped ideological preconceptions.

    I’m not a lawyer, but from my reading of criminal cases, having a psychopathic personality does not provide grounds for mitigation in the case of murder. In his book ’10 Rillington Place’ Ludovic Kennedy based his hypothesis (that Timothy Evans was innocent) on the statistical unlikelihood of two psychopaths sharing the same house. Yet this seems to have been the case. Evans almost certainly killed his wife (although he was hanged for the murder of his child, and posthumously pardoned by Roy Jenkins). I suspect our jails contain a goodly number of psychopaths, and there are many more at loose in society. Many cases of homicide, which would have been classed as capital murder before 1957 are routinely treated as manslaughter on the grounds of ‘diminished responsibility’. This is a legal, not a scientific argument, and is a radical departure from the previous assumption that an individual was responsible for his actions, unless demonstrably insane.

    • mike Horsnall says:

      John Nolan,
      Yes. This is the point that underpins this whole thread of discussion. It doesnt really matter why you did something -if you did it you did it legally speaking but as you point out mitigation -in law as in the catechism- is to a degree a moveable feast.

  10. mike Horsnall says:

    Hey everybody…I just had this great idea… perhaps I can apply to have my unedifying raft of juvenile misdemeanours wiped clean on account of me being recently found to be 60% fruit fly and 90% cat….. Tim, would this amount to a defense do you think?…Surely some mitigation is due.

  11. Nektarios says:

    Horace , Tim & Mike,

    Thank you for the statistical figures, these are bald percentages of genes identical to those
    found in humans. However I would like to see the data on this.
    For years different percentaes have been banded about. First it was the chimps, then fruit fles, then bananas held that 98% similarity. Now it is cats who hold the top geno similarity to humans?
    I have no doubt they have made some progress in world of genetics over the years, this may account for the different percentages over the years.

    I am not a scientist as such. I am not looking for your approval, but the percentages given by Horace, have changed over the years and may well change again. Who will be the top geno related to humans next year or the year after?

    I gladly take the least place among you all, but to give me 2% that isn’t bananas, your too kind.

  12. tim says:

    Nektarios, I appreciate you aren’t a scientist (my own claim to be one is doubtful, and normally only exercised in the company of lawyers). But this is a blog about science and religion. If you state something to be a scientific fact, you need to be prepared to justify it – or withdraw it if you can’t. I would be (slightly) more sympathetic to the argument that the degree of genetic similarity between man and ape is quite irrelevant, than to the (false) statement that men are more genetically similar to bananas than apes. You mustn’t persist in relying on your memory of something you once read somewhere, and perhaps misunderstood. Maybe I’m being a little harsh, but if you will produce anything of substance to justify what you confidently asserted to be a fact, I will be happy to apologise for this.

    Now I’m off for three weeks on an-ill deserved holiday, so I won’t be around to carp any further until later in the month. Best wishes to all!

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