Presentaties Law & Neurosciences UM

The relevance of neurosciences for law
An introduction to the course
Prof. dr. David Roef

Content of this lecture
I. Introducing the course
- What is neurolaw?
- Illustrations of possible relevance of neuroscience
II. Relevance of neuroscience for law

a) External relevance of neuroscience
b) Internal relevance of neuroscience
III. Conditions of criminal responsibility

& linking them to possible neuroscientific relevance
I. Introducing the course: what is neurolaw?
Neurolaw: interdisciplinary study that explores the effects of
discoveries in neuroscience on legal rules and concepts.
Drawing from (cognitive) neurosciences, philosophy, psychology,
and criminology, neurolaw seeks to address
- descriptive/diagnostic issues (e.g. insanity, injuries)
- predictive issues (risk assessment of recidivism)
- rehabilitative issues (brain intervention)
- normative issues (how to use neuroscience/human rights)
- philosophical issues (free will, agency)
→ why are the philosophical issues so important?
they precede and inform both science and law
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Introducing the relevance
Illustration 1: Kenneth Parks case
• Supreme Court Canada 1987

• While sleepwalking killed his mother-in-law
& nearly killed his father-in-law
• Evidence included EEG-report showing unusual activity in his brain.
• Jury acquitted Parks

• “Automatism defence”
• No voluntary conduct (actus reus)
→ hence no criminal responsibility
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Illustration 2- pedophilia brain tumor case
• 2000 Virginia USA - man collects child pornography & sexually
molests stepdaughter.
• Benign tumor in the orbitofrontal area of the brain
• tumor was removed, all symptoms disappeared
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Illustration 3: the juvenile brain
Roper vs Simmons 2005

U.S. Supreme Court rules that the
Eighth Amendment prohibits
death penalty for juveniles
Miller v. Alabama 2012

U.S. Supreme Court prohibits life
without parole for juveniles
convicted of homicide.
neuroscientific evidence that adolescent brains,

including regions related to behavior control, are not
fully developed.
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Translation problem neuroscience and law
• Legal issues → normative: how to regulate society?
• Science describes & explain phenomena like behaviour
• How does law translate neuro-info into its constructs?
• conceptual problems
→ e.g. what is ‘voluntary’ conduct, what is ‘intent’?
• Is law asking questions neuroscience is able to answer?
• Is neuroscience answering questions law is asking?
• Much research is remote from actual court environment
• Internal empirical (probative) relevance should be distinguished from
strong external conceptual/philosophical claims
• Debate suffers from extremes:
neuro-reductionism & neuro-scepticism
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? Brain overclaim syndrome ?
We also have to distinguish science from scient-ism

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II. Relevance of neuroscience to criminal law
Two main forms of relevance

a. External relevance: how does neuroscience challenge
foundations of law from the outside?
→ law is based on assumptions about humans
are these challenged & does this change the law?
→ philosophical questions
b. Internal relevance: how can neuroscience be used within the law?

→ may lead to changes within the legal system as it is
BUT without questioning its foundations
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(a) External relevance/challenge
Problem of free will & determinism (session # 2)
is free will/responsibility possible if neuro-determinism is true?
= new variant of old philosophical question
Problem of mental causation and agency (session #3)

do my conscious intentions cause my actions
(or is what I intent just a rationalizing chatterbox?)
= problem of causal efficacy of my conscious will

more (new) neuroscientific challenge
→ how relevant are Libet-style experiments, Haynes, Wegner… Benjamin Libet
Problem of neuro-reductionism: are we nothing but our brains?

- problem about relationship body/brain vs mind
- Is reducing mind to the brain the best way to understand ourselves?
- Does it matter for the law?
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“What if we could explain the contents of our
minds simply by describing the workings of our
brains?
To cognitive neuroscientists such a breakthrough

is not only possible but also inevitable.
Neuroscience would then replace psychology
completely as the last word on mental
phenomena.
But not everyone shares this “neuroreductionist”

view. There is reason to think that reductionism
in the sciences of the mind is more of an ideology
or aspiration than it is a prediction of the future
course of science.”
Ian Gold (2019)
Does neuro-reductionism matter for the law?
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(b) Internal relevance/challenge:
- We accept general coherence & legitimacy of current legal
doctrines and practices
- But allow use of neuroscience and even reform within the system,
e.g. - use neuro-evidence to prove insanity defence
- use of neuro-lie detection
- use of deep brain stimulation
- Main problem: how to implement science in the law?

- There is not one thing called neuroscience
- AND there is not one thing called (legal) responsibility
→ see article Nicole Vincent
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Responsibility may have many meanings
1. Virtue-Responsibility
2. Role-Responsibility
3. Outcome-Responsibility
4. Causal-Responsibility
5. Capacity-Responsibility
6. Liability-Responsibility
Questions for the tutorial

a) how are these responsibilities related to each other?
b) for which ‘responsibility’ may neuroscience(s) be relevant?
c) how to relate these responsibilities to criminal law concepts
like actus reus, mens rea, blameworthiness, insanity
defence, etc..
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III. Conditions of criminal responsibility
• Two main legal traditions
- common law systems (Anglo-American)
- civil law systems (European Continental)
• Main issues for criminal responsibility
→ Actus reus – objective element of a crime - voluntary conduct
e.g. killing a person, destroying property
→ Mens rea – subjective element of a crime - mental state
e.g. intent (purpose), knowledge, recklessness, negligence
→ Are there justifications? defences negating wrongdoing of the act

e.g. self-defence
→ Are there excuses? defences negating blameworthiness of the actor
e.g. Insanity defence
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How actus reus & mens rea appear in a crime
Most criminal provisions have both objective (actus reus) and
subjective (mens rea) elements....they all have to be proven
Example: Art. 302 Dutch Criminal Code:

He who intentionally inflicts serious bodily harm on another person
Questions re actus reus:

→ was there a voluntary act/omission?
or was there a force beyond the actor’s control (pushed, spasm..)
→ Did this act/omission cause the result (e.g. bodily harm)
Questions re mens rea:

→ was there intent, recklessness (or only negligence)?
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Different forms of mens rea
• different kinds of mens rea = different kinds of punishment
• In USA: intent (purpose), knowledge, recklessness,
negligence
• In civil law systems (Germany, Dutch): intent, negligence
Let’s illustrate this with

different kinds of homicide
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Examples Dutch Criminal Code
1. Murder (moord) – art. 289: he who intentionally and
with premeditation takes the life of another person…
life imprisonment or max. 30 years
Intention = willing and knowingly
Premeditation = a moment of preceding conscious reflection
2. Intentional Manslaughter (doodslag) – art. 287: he who

intentionally takes the life of another…max. 25 years
3. Negligent Manslaughter (dood door schuld) – art. 307

(1): he who causes the death of another person by
neglicence…max. 2 years
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Neuroscience and actus reus
sleepwalking example
• E.g. Canadian Kenneth Parks case (1987)
• Parks acquitted as a result of neuro-evidence
• Defence is called “automatism’
→ Does this negate voluntary act requirement (actus reus)?

→ Or does this negate the intent (mens rea)?
→ Or is this excuse, i.e. an insanity defence (negating blameworthiness)?
most common answer = denial actus reus
→ no voluntary conduct
However, some systems may be less clear
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External philosophical challenge of actus reus?
• Some experts challenge the whole notion of voluntary act itself
• No sound scientific basis criminal law’s distinction between
voluntary and involuntary conduct
• Libet(like) experiments: unconscious brain processes precede
conscious awareness of intention to make decision – aren’t we all
then acting involuntary?
• Answer will depend on two main issues

→ do the experiments lead to that conclusion?
→ what does ‘voluntary act’ mean in criminal law?
→ …we will see in session 2 and 3
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Neuroscience and mens rea
murder example
Murder (moord) – art. 289 DCC:

he who intentionally and with premeditation
takes the life of another person…
Example: Sietske H. infanticide case (art. 291 DCC)

(Leeuwarden 2012)
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Case Sietske H.
• Sietske H.: kills her 4 newborn children
• Initially explanations were sought on a social level (fear of
discovery of her pregnancies)
• First Instance Court: 12 years for infanticide
= 3 x child-murder (291 DCC) and 1 x manslaughter (290 DCC)
• Court of Appeal: examination by psychiatrist, psychologist and
behavioral neurologist : “ frontal syndrome ”
• Court: ”it cannot be proven that the accused had already
decided to kill the children before the births...therefore only
manslaughter...”
• difference between childmurder & manslaughter? Preliminary
decision to kill...was now considered absent
• 3 years + TBS/entrustment order
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In the decision the Court quotes the experts adding
neurobiological perspective to the case:
“thereby it is established that the defendant had a personality
disorder which is associated with or is (co)-determined by cerebral
organic damage in the sense of a frontal lobe syndrome and that
this disorder has restricted her to a considerable extent, compared
to a healthy person, in overseeing the problems which she faced
and in making choices to solve these problems.”
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Excuses negating blameworthiness of offender
• If there is actus reus + mens rea + no justification
→ one question remains
→ Can the defendant be blamed for the wrongful act
→ Could one have avoided the offence?
• Do not confuse intent with blameworthiness

• One can act intentionally but still have an excuse
• Disculpating excuses: duress, insanity (non-accountability)
• Here neuroscience may become most relevant
Questions re cognitive and volitional capacities/ mental disorders.
See session # 4
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Insanity defence Common law
England-Wales-USA
M’Naghten Rule 1843
At the time of committing the act, the party accused was laboring
under such a defect of reason, from disease of the mind, as not
to know the nature and quality of the act he was doing; or if he
did know it, that he did not know what he was doing was wrong
= all or nothing (only diminished responsibility for murder)

= pure cognitive/rationality impairment
Interesting: NO volitional impairment
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Can neuroscience change legal definition insanity?
Which impairments of which mental capacities

can be accepted as part of the insanity
defence?
...neuroscience may help to make a clearer

distinction between an irresistible impulse and
an impulse that was simply not resisted.
If neuroscience succeeds in doing that...the
eventual result could be that the insanity
standard, the legal norm therefore, will be
revised...” (p. 129)
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Insanity defence in Netherlands
“Diminished or non-accountability”
art. 39 DCC: A person who commits an offence due to a mental

disorder or defective development of mental capacities is not
criminally responsible (case law accepts also diminished form)
3 point scale:
- complete accountability
- diminished accountability
- complete non-accountability
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Diminished or non-accountability
(insanity defence)
• Court Alkmaar 2008
• D. accused of fornication 9 year old neighbor-girl
• front-subcortical dementia - Parkinson’s disease
• Neurologist : “as a result the defendant was unable to control
his impulses. He acted reflexively without overseeiing the
consequences. D. lacks the capacity for self-reflection, which
prevents him from relating his actions to an appropriate
framework of norms and values. In addition he was as a
result of his cognitive impairment not able to interrupt his
behavior once started.”
• Psychologist: “dementia is in an early phase and behavior of

D shows not a general inhibition yet.”
• Court considers D. of diminished accountability
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Diminished accountability : frontotemporal lobe
dementia
• Dutch Court Utrecht 2015
• 71 year old Dirk M., guilty of attempted extortion of
media tycoon family De Mol
• Diminished accountability & not fit to serve a prison
sentence due to frontotemporal dementia
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Did my brain make me do it?
The problem of free will, determinism and

responsibility
Lecture # 2
I. What are two external neuro-challenges for responsibility?

a. lack of free will (problem of determinism) = session 2
b. lack of conscious will or mental causation = session 3
II. Problem of free will & determinism

-> What are the different positions in the debate?
III. Are criminal responsibility & determinism compatible?

Some preliminary remarks
• I will not solve the problem, but clarify some positions
• Responsibility is not a theory about life… but a set of moral,
social and legal practices
• we attribute responsibility to each other
• Trees and birds don’t have responsibility…

• Responsibility is part of the human life world, a community of
human beings acting as subjects and agents
Some preliminary remarks
• ‘Free will’ & ‘responsibility’ not part of physical/biological
world ‘out there’, explored from a third person perspective
• belong to first-person & inter-personal experiences
(cultural world)
• Debate is relevant for outcome & capacity-responsibility
• Debate also relevant for liability-responsibility
-> why do we punish?
-> retributive or utilitarian/consequentialist goals?
see article Green & Cohen
(see also knowledge clip)
Difference between event and act
No act without an agent

Why do you listen to this lecture?
Our responsibility practices are based on folk-psychological
(common sense) view – we explain behavior in terms of
desires, beliefs and intentions
Free will and human agency

are considered foundational
for attributing responsibility
Both are neuro-challenged

I. What are two external neuro-challenges?
- Problem A = (causal) determinism
Is free will & responsibility possible if neuro-determinism is true?
= similar to old, philosophical compatibilism question
= session 2
- Problem B = conscious will, mental causation & agency

Is my conscious will the cause of my actions? Am I an agent?
Are my conscious intentions causally efficacious?
or are these intentions epiphenomenal (a powerless byproduct)
= more (new) neuroscientific challenge (research Libet, Wegner)
= session 3
Both challenges are often
conflated as one and the same
“free will problem”
They are both about control over

our decisions and actions
But they are different though

related issues
Differentiating the Two Challenges
Problem A = (causal) determinism
All events are causally determined by prior states
causal = everything has a cause; nothing is uncaused/self-caused

determinism = world is determined by past conditions of the world
What is indeterminism? Belief that no event is certain and entire outcome of

anything is probabilistic (random, chance)
→ But indeterminism does not negate causalism
Note: You may use “mechanism” for both determinism and indetermism
Presupposition:
mental states are determined like anything else in nature
as they are caused by (prior) material brain states
Question:
Are free will/responsibility compatible with determinism?
What is free will?
• The capacity to choose otherwise without any internal and external
forces that are beyond your control
= ‘libertarian’ view on free will (not freedom of action!)
• Two main conditions for free will

a. principle of alternative possibilities I can choose otherwise
there must be something to choose determinism
b. ultimate source principle: it’s up to me

‘I’ am the uncaused chooser of my actions causalism
• Important: my decisions & actions can still be links in causal chain
• Even when my choices are determined, other things may still
depend upon my deliberating and choosing in a certain way
→ causal determinism does not negate mental causation
My conscious intentions can still be causally efficacious
! …this causal power is challenged by problem B !

My conscious will – determined or not - does not cause my actions
If that is true: am I even still an agent?
See session # 3
Two challenges illustrated: Libet’s experiment
• https://www.youtube.com/watch?v=OjCt-L0Ph5o
• brain activity (RP) precedes conscious decision to move

• unconscious brain processes are the true initiator of our actions
→ our decisions are unfree = determined by the brain (problem A)
→ our decisions are not even the cause of our actions (problem B)
Link between conscious will (B) & denial of free will (A)
Conscious willing is crucial to our experience of free will.
We have the experience: it is "I" who thinks, feels, decides, etc.
Problem B challenges free will on 3 assumptions

Not because of (in)determinism but because:
1) conscious will is necessary for agential control (up to me!)
2) agency is necessary for free will
3) since conscious will is an illusion, free will is too
In the words of Colin Blakmore
The human brain is a machine which alone accounts for all our
actions, our most private thoughts, our beliefs...
All our actions are products of the activity of our brain. It makes
no sense (in scientific terms) to try to distinguish sharply
between acts that result from conscious attention and those that
result from our reflexes or are caused by disease or damage of
the brain
C. Blackmore, The Mind Machine, p. 270

Are we all the walking dead?
We neglect important meta-
question?
Is this naturalistic/mechanistic
view a correct view on reality?
Are natural sciences even

equipped to answer these
fundamental questions?
Problematic political implications?
“If actors are presumed not to be able to control their conduct, control
will be shifted to experts and those in position of power.
A categorical denial of free will is not only politically precarious in that, by
downplaying the relevance of individual’s reasons and justification [and
excuse], the door is opened for arbitrary interventions, but it would also
imply that we have to deny that the intervening agencies (experts,
politicians) have valid reasons and justifications for their interventions
If the standard of social desirability can no longer be grounded on rational

reasons and justifications, only irrational drives (observed in scans) will
count”
(R. Schwitters, “Social theory and the significance of free will in our system of criminal justice”, p. 65)
II. Problem A: free will and determinism
Not really a new problem; neuroscience doesn’t add much to this debate
• Benedictus de Spinoza (1632-1677)
“We think we have a free will because we are
aware of making choices, but we are not
aware of the causes behind our choices”
free will is an illusion of our self-consiousness
• Arthur Schopenhauer (1788-1860)
“I can indeed do what I will, but

can I will something else
than what I will?”
Is my “will” free?
Three positions in the debate
1. (Hard) determinism
free will is (morally) necessary for responsibility
Free will & determinism are incompatible
Determinism is true, hence no free will → no responsibility
2. Libertarianism
Free will is (morally) necessary for responsibility
Free will & determinism are incompatible
Determinism is not true, therefore free will does exist
→ BUT if determinism is not true, would that give free will? How?
Three positions in the debate
3. Compatibilism (or soft determinism)
Determinism is true → free will does not exist
But this traditional free will is not necessary for responsibility

We may even misunderstand free will
We have to redefine free will and/or responsibility
This redefined free will IS compatible with determinism

Example of compatibilism - Harry Frankfurt
Free will doesn’t require freedom to do otherwise

Do we need alternative possibilities for responsibility? NO
“Imagine Jones voting for new president; just before the

moment he wants to vote for a Democrat an implanted
machine makes him want to vote for a Republican...”
Question: Would we consider him responsible for his vote if

he would have made the choice himself although there was
no alternative?...
Sufficient for responsibility is that it is your choice, i.e. you

can identify with it, not whether you really had a choice
Example of what Frankfurt means
On 18 April 1521, the protestant reformer

Luther stood before a council of both
church and government, defending his
ideas, and declared, “Here I stand. I can do
no otherwise”
Is he now less free and less responsible?
Or do these words really express the

only freedom we need and maybe even
want?
Are we convinced by Frankfurt?

What do ‘ordinary’ people think?
• Nichols & Knobe, “Moral responsibility and determinism: the
cognitive science of folk intuitions, Nous, 2007, 663-685
“Suppose that Mark and Bill live in a deterministic universe.

Everything that happens this morning — like Mark’s decision to
wear a blue shirt, or Bill’s latest attempt to comb over his bald
spot — is completely caused by whatever happened before it.
If you recreated this universe starting with the Big Bang and let
all events proceed exactly the same way until this same morning,
then the blue shirt is as inevitable as the comb-over.”
1) In this deterministic universe, is it

possible for a person to be fully morally
responsible for his actions?
86 % no
2) This year, as he has often done in the

past, Mark arranges to cheat on his taxes. Is
he fully morally responsible for his actions?
77 % no
3) Bill falls in love with his secretary, and he

decides that the only way to be with her is to
murder his wife and three children. Before
leaving on a trip, he arranges for them to be
killed while he is away. Is Bill fully morally
responsible for his actions?
72 % yes
• Most people are incompatibilists (hard determinists) in an
abstract case
• Most people are compatibilist in a concrete case
• Difference between high affect and low affect
Nicols: “When people are calm and collected, they acknowledge

that determinism denies responsibility. In contrast, when faced
with cases that are concrete and close to home, our responses are
biased by emotional and motivational factors. Our desire to blame
the offender drives us to blame”
Main form of compatibilism =
“responsibility does not require traditional free will
but only certain mental capacities ”
• H.L.A Hart: “the capacities in question are those of understanding,

reasoning, and control of conduct: the ability to understand what
conduct legal rules or morality require, to deliberate and reach
decisions concerning these requirements, and to conform to
decisions when made.”
= Main (current) compatibilistic view (Fisher & Ravizza, Morse)

= responsibility is based upon reason-responsiveness
III. Criminal law, free will and responsibility
• Is (or should) criminal law (be) based upon libertarian free will?
• Majority of scholars say: no → defend compatibilism
• Free will is not (or should not be) criterion for responsibility
→ what denies responsibility = lack of actus reus, duress
irrationality, insanity defence, etc…
→ But not lack of the freedom to choose otherwise
• Law is normative - based upon reason-responsiveness

being able to be guided by reasons
• no need for alternative possibilities or for being ultimate source
Stephen Morse on capacity for rationality
“The law’s requirement for responsibility – a general capacity
for rationality – . . . must be understood according to some
contingent normative notion both of rationality and of how
much [of which] capability is required.
For example, legal responsibility might require the capability

of understanding the reason for an applicable rule, as well as
the rule’s narrow behavior command. These are matters of
moral, political, and ultimately legal judgment, about which
reasonable people can and do differ.”
The psycholegal error
“Discovering a cause for behavior, whether it is biological,
psychological or sociological, does not mean that the
agent is not responsible for the behavior.
All behavior has causes. If causation were an excuse, no
one could ever be held responsible for any behavior.
I have called the confused, pernicious belief that
causation excuses, which is used selectively and all too
frequently, the fundamental psycholegal error.” (Morse,
2007).
In tutorials: what does this mean for the tumor pedophilia case?
How do you look at Morse’s compatibilist position? (see also Kolber)
Is our criminal law based upon compatibilism or libertarianism?
Are we really (in our own living experience) compatibilists or libertarians?
German Supreme Court 1952
Punishment requires guilt. Guilt is blameworthiness.
Through the judgment about guilt, the offender is blamed
for not having behaved in a lawful way, for having decided in
favour of wrongdoing, although he could have acted in a
lawful way and could have decided in favour of the law.
The internal reason for the attribution of blame lies in the

idea that a human being is committed to free, responsible,
moral self-determination and is therefore capable to choose
for right and against wrong.
Problems with compatibilism & capacities approach?
• Legal doctrine may be consistent with compatibilism but this doesn’t
mean that it is also grounded on this theory.
if not: What is the normative/moral justification for compatibilism?
(why would this be better than incompatibilism)
• Can we hold you (ir)responsible for (in)capacities that are determined?

• Only impaired capacities diminish responsibility
→ difference impaired capacity (mad) and character’s flaw (bad)?
e.g. would anger-related brain states show impaired mental capacity to
control…or would it just reveal implementation of bad character?
Can we base criminal responsibility upon character?
The Problem of Conscious Will & Agency
Law & Neurosciences
Week # 3

I. What are again the two external neuro-challenges?
II. Problem of conscious will & agency
III. How convincing is this second challenge? Some critiques
IV. Am I only my brain? Does this matter for the law?

I. What are external neuro-challenges?
- Problem A = (causal) determinism

Is free will & responsibility possible if neuro-determinism is true?
= session 2
- Problem B = conscious will, mental causation & agency

Is my conscious will the cause of my actions?
Are my conscious intentions causally efficacious?

or are these intentions epiphenomenal (a powerless byproduct)
= session 3
Compatibilist answer to Problem A
• Majority legal scholars defend compatibilism
• Relevant is not alternative possibilities or contra-causal freedom
• Law is normative functionalism and based upon

reason-responsiveness: being guided by reasons
• Capacity to act “rationally” in accordance with one’s goals/values

Problems with compatibilism approach?
• Reason-responsibility may be an operative criterion for responsibility
→ but is it a good foundation for responsibility?
• How can blame & retributivism be justified without traditional free will?
• Is our law not (historically) libertarian?

• Legal doctrine may be consistent with compatibilism….
….but is it grounded on this theory?
• if not: What is the normative/moral justification for compatibilism?
• Is this better than libertarianism or hard determinism?
German Supreme Court 1952
Punishment requires guilt. Guilt is blameworthiness.
Through the judgment about guilt, the offender is blamed for
not having behaved in a lawful way, for having decided in
favour of wrongdoing, although he could have acted in a lawful
way and could have decided in favour of the law.
The internal reason for the attribution of blame lies in the idea
that a human being is committed to free, responsible, moral
self-determination and is therefore capable to choose for right
and against wrong.
THIS IS LIBERTARIAN (contra compatibilist reading of the law)

II. Problem B – illusion of conscious will/agency
- Problem of apparent mental causation
- Problem of no-action thesis (NAT)
- Problem of epiphenomenalism
do my conscious intentions really ‘cause’ my actions

or are they only illusions: post-hoc inferences
Problem B & Libet-inspired experiments
• Does this show determinism (lack of free will)?

• Does this show NAT? Conscious will has no causal efficacy?
• See again documentary posted week #2 : “big questions in free will”
https://www.youtube.com/watch?v=9uRTjfhIf4M
• See also: Philosophers and Neuroscientists in conversation
https://www.youtube.com/watch?v=CciiKxLtH1Y
Experiments Haynes, Soon et al. (2008)
Experiments Haynes, Soon et al. (2008)
• fMRI data predict which button subjects would press up to 10

seconds before subject becomes aware of making choice
• Findings are controversial → only 60 percent accuracy
• 40 percent of inaccuracy may even be evidence of an innate

indeterminism, on some level, in the structure and functioning
of the brain (Lavazza & De Caro 2010: 27).
AGAIN: Often the two issues are confused
Henry Roediger, Michael Goode, Franklin Zaromb, “Free Will and the
Control of Action,” in J. Baer, J. Kaufman, and R. Baumeister, eds.,
AreWe Free?: Psychology and FreeWill , 208.
how are in this quote the two issues conflated?

But why is NAT linked with free will?
Problem B challenges free will via challenging conscious will

on 3 assumptions
1) conscious will - that one’s actions properly derive from one’s conscious
decisions - is necessary for agency
2) agency is necessary for free will
3) If conscious will is an illusion (epiphenomenon), free will is too
→ But also any other basis for responsibility (reason responsiveness) is an illusion if
conscious will is epiphenomenal
Problem B shows itself in two ways
Philosophical epiphenomenalism. All mental states (whether
conscious or unconscious) are causally inefficacious; since we are our
brain, all our beliefs, desires and intentions are as mental events,
merely epiphenomenal, a by-product of the brain.
→ about contrast between mental state (mind) and brain state
Psychological or modular epiphenomenalism. Our conscious

intentions (that is, their brain correlates) do not play any causal role
on our actions; the psychological experience of conscious will is
entirely causally inefficacious, or is at least not a reliable indicator for
its presumed causal power.
→ about contrast between conscious & unconscious brain events
Philosophical epiphenomenalism
mental causation = related to body-mind problem
See also knowledge clip # 3
Western problem in understanding body & mind
What is the mind? How does it relate to body/brain?
→ legacy of Descartes since the 16/17th century
For most people there are only two conceptions of the “mind”
(a) Body-Mind dualism (Descartes, spiritual views)
(b) materialism/physicalism + reductionism

Philosophical epiphenomenalism
Descartes: Man is immaterial mind in a material body
-> how can mental states as mental states be efficacious?
Since 19th century: materialism replaced this dualism

mind = only the brain (materialistic reductionism)
-> do we still need the notion of “mental” causation?
-> BUT unsolved problem: consciousness/mental states cannot be fully

explained only by brain activity dokter seeing red first
For the law: can criminal intent be fully explained only by a brain state?
Psychological or modular epiphenomenalism
• Daniel Wegner, The Illusion of Conscious Will (2002)
• Being a materialist thinker he is not a dualist
• Scientific evidence is not relevant to classical mind-body debate
• What science shows = psychological/modular epiphenomenalism

-> Wegner interprets Libet as negating causal efficacy intentions
-> uses other data/experiments
(e.g. Ouija board, I Spy experiment)
“data show we feel we are agents when we are not, and vice versa”
Psychological/Modular epiphenomenalism
“The experience of consciously

willing an action is not a direct
indication that the conscious
thought has caused the action.
Conscious will, viewed in this way,
may be an extraordinary illusion
indeed”
Daniel Wegner
“the brain structure that provides the
experience of will is separate from the
brain source of action” (p.47)
So what can this all mean?
• Am I shooting a gun?
• Do we embrace NAT – epiphenomenalism?
-> But how to have a society without agents?
-> even doing science requires rational agency
• OR do we learn to live with the illusion that we are agents?

• BUT is agency really an illusion?
• if we say “illusion of conscious will”.. what does this mean?
• Do data challenge agency, or a limited, wrong view on agency?
III. Do these findings really suggest no-agency?
1. Unconscious RP may not be a cause of the action (bypassing your
decision) but electrical sign that brain is paying attention (Miller &
Trevena 2009)
-> see also article Caruso session # 2 (on COINTOB)
2. Experiments isolate human agency from broader intentional

horizon and content, and limit it to performance of simple bodily
movements
→ decision to push button belongs to wider field of intention
“Moving the wrist is not isolated…it is itself only
a minute part of a long sequence of decisions
and actions that could be described as ‘taking
part of Dr. Libet’s experiment.“
Raymond Tallis
Do these findings really suggest no-agency?
3. Becoming aware of urge/wish to act...is that a decision?
4. Are motoric movements & indifferent choices capturing agency?

→ More relevant for agency is acting for reasons
5. Experiments are on short, not long term intentions

= proximal conscious intentions occuring just before action
→ What about distall & implementation intentions?
e.g. deciding to to organise a travel, rob a bank, changing a job
“the evidence for conscious causation is
profound, extensive, adaptive, multifaceted,
and empirically strong”
Baumeister et al, 2011
e.g., research on implementation decisions
Explain in tutorial
Neuroscience even evidences causal efficacy
Jean-Dominique Bauby
Paralyzed from head to toe
Mental capacaties intact
Through blinks of one working

eye he wrote his memoirs
Now we have brain-machine interface
computer can ‘read’ brain activity and

decode it through pattern-recognition
algorithms
6. what does consciously intending actually mean?
- being conscious of the fact that I intend to do x?
- consciously forming the intention to do x?
= phenomenal (perceptual) vs. reflective consciousness
7. experiments ignore difference triggering and structuring causes

Explain in tutorial
8. Wegner-like experiments are about exceptional (manipulated)

situations→ can they be generalised?
9. NAT-claim (implicitly) based upon a one-sided conceptual view
on how we act and (consciously) decide
Three steps in the reasoning behind the claim
1.“I” am my conscious intentions (or their brain correlates)

2. My conscious intentions do not initiate what I do
3. Hence: “I” don’t cause what I do
(and am therefore no agent and not responsible)
But is this an accurate view on (legal) agency?
• Is conscious/unconsious divied a good way of understanding agency?
• We are often agents in situations where our ‘self’ is not consciously
deciding (speaking, playing music, driving car, sports)
• Agency = dynamic feedback conscious & unconscious processes

…and neuroscience does not deny, but helps to explain this agency
• See also article by Marc Slors
The ‘ghost’ of Descartes still haunts us
• NAT-claim equats ‘agent’ with only conscious will
• Strangely resembles Cartesian ‘dualist’ view: mind versus body
• as if conscious will can/ should operate independently from and
on the (unconscious) brain processes
→ agency understood as passive body ruled by active mind/brain

→ or that part A of brain rules part B of brain
→ instead of mind vs body, we now have dualism brain vs body
→
What can this mean for criminal law?
• Does criminal law reflect this limited view on agency? NO
→ pulling trigger does not demand proximate intention

→ part of the broader intent (mens rea) of killing
→ no evidence this distall intent (mens rea) is not causally relevant
IV. Am I only my brain? Does it matter for the law?
• Back to problem of dualism & philosophical epiphenomenalism
• Can this be solved by “reductionism”?
→ Can we “reduce” mental states to nothing but brain(scans)?
• Broader issue: Can we understand any ‘whole’ only by its parts?

= reducing the whole to its parts
• Mereological phallacy: attributing an ability or function to a part
(brain) that is only properly attributable to the whole (human) of which
it is a part
e.g. when we say the brain lies, loves, desires…while only people do.
Brainactivity is necessary but is not sufficient
• No description of physiological facts from third-person can
ever fully convey the qualities of first-person experience of
consciousness
• BUT even when we reduce mind to brain...does it really matter

for the law whether mens rea is a mental or (just) brain event?
• What matters is that this mental/brain guides our actions

• Criminal responsibility seems compatible with reductionism
• But what about those (scientists) who deny reductionism?
Other ways of looking at “mind”?
- mind is not a (mysterious) “thing” or “object” or “substance”
- mind is not located somewhere “inside” (in the brain)
- some neuroscientists defend embodied and embedded mind theory
- mind is more a process, a diverse array of abilities, including

psychological categories, cogitation, affectations and volition
- Mind only functions in brain that is embodied and embedded
- Agression, depression, psychosis is not ONLY brain disorder

- Intention, knowledge is not ONLY a brain state
Other ways of looking at mind?
“the mind emerges from and is shaped by interaction among brain, body
and environment. The mind is not located in the brain but is distributed
among these three entities as the organism engages with and constructs
meaning from its surroundings”
W. Glannon
Mind is not just embrained, it is embodied and embedded in the life world
Mind = Dynamic interaction between brain, body and world
For the mind a brain is necessary but not sufficient

The intent to stop (or not) exists because your mind is not just a brain, but
is also embodied and embedded in the life (and legal) world
Concluding remarks
• Conceptual/philosophical & empirical issues are often confused
• Science succesfully challenges naive & limited views on agency
• But no robust ‘NAT’ has been offered
• Within neuroscience different models of mind are possible
• responsibility practices can be based on different views on agency
• In law we attribute responsibility not to brains, but to entities
• “Freedom” in law may be more a normative, protective,

intersubjective freedom, not a metaphysical or even empirical one
that can be proven or disproven from a scientific perspective
The Insanity Defence
Comparative & Neuroscientific Perspectives

“probably no single issue in the
annals of criminal law has stirred
more controversy, debate, and
comparison among laypersons, as
well as jurists, than the insanity
defense.”
Dr. Marvin Firestone
Faculty of Law 2
I. Insanity defence - some general remarks
II. Criteria for legal insanity– a comparative perspective

a. Common law (Anglo-American) perspectives
b. Germany
d. The Netherlands
c. Norway
III. Neuroscientific perspectives

a. Theory building: reforming insanity defence?
b. Neuroimaging assessments of insanity?
Faculty of Law 3
I. Insanity defence – general remarks
• Insanity defence reflects basic sense of (moral) justice

-> unfair to blame and punish severely disordered offenders
• “Insanity defence” = Anglo-American term

• European civil law systems: = non-accountability/responsibility
• Do not confuse with lack of actus reus or mens rea (intent)

-> mental disorders almost never deny conduct or intent
-> mental disordered beliefs often the reason mens rea is formed
• Legal insanity = excuse denying blameworthiness
Faculty of Law 4
• Legal insanity = largely normative concept
not fully identical with medical “insanity”
= independent from DSM-V
• Some systems accept only full defence (England, US)

• Other systems also partial defence (= diminished responsibility)
• Main result: hospital order/ involuntary civil commitment

(with or without time limit)
Faculty of Law 5
• Insanity criteria different in legal systems
• Criteria must be able to distinguish “mad” from “bad” and “sad”
• Questions all systems have to address

a) is there a mental disorder? And what do we accept as disorder?
b) is this disorder connected to the crime?
c) which mental functional capacities should be impaired?
= what is excusing link between crime and disorder?
- cognitive/evaluative impairment? (lack of understanding)
- volitional impairment? (lack of restraint)
- affective impairment? (lack empathy, conscience)
[d) is there prior fault denying the defence? (self-intoxication)]

Is finding causes legally sufficient?
“Discovering a cause for behavior, whether it
is biological, psychological or sociological,
does not mean that the agent is not
responsible for the behavior.
All behavior has causes. If causation were an

excuse, no one could ever be held responsible
for any behavior.
I have called the confused, pernicious belief
that causation excuses, which is used
selectively and all too frequently, the
fundamental psycholegal error.”
Stephen Morse
Faculty of Law 7
II. Criteria Insanity defence: comparative view
(a) Common law - England-USA
20th January 1843

Daniel M’Naghten killed Edward
Drummand, private secretary of the
Prime Minister (Sir Robert Peel)
D. delusionally believed ruling Tory Party

wanted him dead
M’Naghten Rule 1843
At the time of committing the act, the party accused was
laboring under such a defect of reason, from disease of the
mind, as not to know the nature and quality of the act he
was doing; or if he did know it, that he did not know what
he was doing was wrong
= FULL DEFENCE
= only cognitive/rationality impairment
NO volitional impairment accepted

Faculty of Law 9
Lack of knowledge of the nature, quality and/or
wrongfulness of the act
• D. does not understand or know what he is doing

due to his mental condition (e.g. psychosis)
-> How severe must irrationality be?
e.g. psychotics may still know that they are ‘killing’
• D. does not understand wrongfulness of act

= legal or moral meaning?
Faculty of Law 10
Critique on M’Nagthen Rule
• Outdated 19th century rule

• only full defence possible
• Does it cover all relevant cases?

→ no volitional impairment accepted
→ auditory verbal hallucinations (commands)?
• Jury decides whether D. is insane: really qualified?
Faculty of Law 11
Attempts to reform
• Royal Commission on Capital Punishment 1953

-> irresistible impulses must also be part of legal insanity
–> never became law.
alternative: diminished responsibility ONLY for murder.
→ changes into voluntary manslaughter
• Law Commission's paper in 2013 on insanity and automatism

-> offers alternatives but no definite proposals
Faculty of Law 12
Insanity defence in USA
In USA M’Nagthen still major rule for legal insanity
e.g. Andrea Yates drowning her 5 children (2001)

delusionally believed she saved them from hell
postpartum depression, postpartum psychosis, schizophrenia.

Now 57, continues to undergo mental health treatment
Faculty of Law 13
Not legally insane: no cognitive impairment
4 different personality disorders

(borderline, antisocial, schizotypal, or PD-NOS)
What about his necrophilia and sexual sadism?

Driven by impulses he could not resist?
Irresistible impulses not part of insanity defence
Faculty of Law 14
Why is Anglo-American law so hesitant for
including volitional impairments?
Prof. Stephen Morse:

“There appears to be a prima facie case for a compulsion branch
of the insanity defense, but is it persuasive and would the test be
workable?
If or to what degree a person's desire or impulse to act was
controllable is not determinable: there is no scientific test to judge
whether an impulse was irresistible or simply not resisted.”
Faculty of Law 15
The American Psychiatric Association’s 1983
position paper on insanity defense:
“The line between an irresistible impulse and
an impulse not resisted is probably no
sharper than that between twilight and
dusk.”
- Other legal systems accept it without many unwanted effects
- Problem seems to be the all/nothing approach of legal insanity
Faculty of Law 16
Some States use insanity defence of Model Penal Code
A person is not responsible for criminal conduct if at the time of such

conduct as a result of mental disease or defect he lacks substantial
capacity either
1. to appreciate the criminality of his conduct or
2. to conform his conduct to the requirements of the law
= both cognitive and volitional impairment
“mental disease” or “defect” do not include abnormality manifested only

by repeated criminal/anti-social conduct (= excluding psychopathy)
(b) Insanity defence: Germany
S. 20 German Criminal Code (full excuse): Any person who at the
time of the commission of the offence is incapable of appreciating
the unlawfulness of their actions or of acting in accordance with
any such appreciation due to a pathological mental disorder, a
profound consciousness disorder, mental deficiency or any other
serious mental abnormality, shall be deemed to act without guilt.
S. 21 GCC (diminished responsibility): If the capacity of the

offender to appreciate the unlawfulness of his actions or to act in
accordance with any such appreciation is substantially diminished
at the time of the commission of the offence due to one of the
reasons indicated in Section 20, the sentence may be mitigated.
Faculty of Law 18
(b) Insanity defence: Germany
• Four categories of mental disorders

1. pathological mental disorder
(schizophrenia, dementia, manic depression)
2. profound consciousness disorder
(= affect like extreme panic, intoxication)
3. mental deficiency
(too low IQ)
4. Any other serious mental abnormality
(neuroses, personality disorders, kleptomania, paedophilia)
• S. 21/20 GCC accept both cognitive and volitional prong
Faculty of Law 19
(c) Insanity defence: Netherlands
S. 39 Dutch Criminal Code : Anyone who commits an offence for
which he cannot be held responsible by reason of the mental
disorder, psychogeriatric condition, or intellectual disability, is
not criminally liable
= full excuse
+ courts accept also partial defence = diminished accountability
Problem: s. 39 DCC gives no criteria/ capacities

Behavioral experts define their own criteria/standards
case law accepts both cognitive/volitional impairments
GIVE EXAMPLES IN TUTORIAL
Faculty of Law 20
Illustration diminished accountability
• Court Alkmaar 2008
• D. accused of fornication 9 year old neighbor-girl
• front-subcortical dementia - Parkinson’s disease
• Neurologist : “as a result the defendant was unable to control
his impulses. He acted reflexively without overseeiing the
consequences. D. lacks the capacity for self-reflection, which
prevents him from relating his actions to an appropriate
framework of norms and values. In addition he was as a
result of his cognitive impairment not able to interrupt his
behavior once started.”
• Psychologist: “dementia is in an early phase and behavior of

D shows not a general inhibition yet.”
• Court considers diminished accountability
Faculty of Law 21
(d) Insanity defence: Norway
S. 44 NCC: “A person who was psychotic or unconscious at the
time of committing the act shall not be liable to a penalty. The
same applies to a person who at the time of committing the act
was mentally retarded to a high degree.”
= so-called medical principle

Sufficient = presence mental disorder at time of the act
not relevant whether offence is result of psychosis
not relevant if or which capacities are impaired
very limited in terms of disorder
Faculty of Law 22
Anders Breivik Case
Anders Breivik Case
Faculty of Law 23
Anders Breivik Case
• July 22, 2011 terrorist attack
-> Shooting at Labor Party youth summer camp Utøya.
-> Car bombing in front of Oslo government buildings
-> 77 people killed
• Two psychiatric reports with conflicting conclusions

a) paranoid schizophrenic -> legally insane.
b) not psychotic -> high risk of repetition of violence
Faculty of Law 24
Breivik defended his acts as a “preventive attack on traitors”
= Labor-led coalition government promoted “Islamic colonization”
→ crusade against the Islamic takeover of Europe.
Want to know more? See Ingrid Mele, The Breivik case and what
psychiatrists can learn from it, Word Psychiatry, 2013 , 12(1): 16–21.
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3619172/
Faculty of Law 25
Breivik Case: psychiatric report # 1
• Court-appointed psychiatrists: no competence on terrorism
• Breivik is evaluated without the political context.
• Without this context…
→ language he uses is incomprehensible
→ Lack of remorse = lack of empathy,
→ Long period of preparation = sign of inadequate functioning
→ His explanations = delusions & fantasies about violence.
→ Political ideology becomes evidence of paranoid schizophrenia
Faculty of Law 26
Breivik Case: psychiatric report # 2
• Court-appointed psychiatrists acknowledge political context
• No sign of psychosis.
• Not clinically insane
• political terrorist with a psychological profile that makes it
possible to understand how he was capable of carrying out the
terror operation
• B. pleaded sanity so that his ideology would “stand stronger.”

• Court convicted B. to 21 years of preventive detention
-> detention can be extended
Faculty of Law 27
Amendment Insanity Defence October 2020
S. 20 NCC
A person who at the time of the act is under 15 years old, is not
criminally liable. The same applies to a person who at the time of
the act is unaccountable due to a
a. severly deviant state of mind
b. severly impaired consciousnes or
c. severe mental disability
When assessing unaccountability emphasis shall be given to the
degree of failure in the person's perception of reality and
functional capacity.
Faculty of Law 28
(a) theory-building: informing & reforming legal insanity?
• Which criteria should insanity defence use?

• Some systems accept cognitive & volitional impairments
• Some systems reject volitional impairments
• All systems struggle with “conceptualising” psychopathy

– Is not a volitional impairment
– Is not a traditional cognitive impairment (irrationality)
[ + problem of succesful treatment]
• Does our neurobiology offer insights in standards for insanity?
Faculty of Law 29
Can neuroscience inform/reform insanity criteria?
Neuroscience: evidence of three classes of brain circuitry disfunction
a) abnormalities in brain regions mediating moral cognition

b) abnormalities in brain regions mediating behavioural inhibition
c) abnormalities giving rise to psychosis,low IQ
diminishing/deluding understanding reality
-> grounds for accepting cognitive and volitional impairments
-> gives more insights in moral processing
Faculty of Law 30
Neurobiology of Abnormal Morality
& Emotional processing
• what makes us distinguishing right and wrong?

• Neurobiology of moral and pro-social behaviour?
• brain regions logical reasoning + regions regulating emotions

• Normative morality is not just intellectual/abstract
• -> requires healthy emotional processing
• Role ventromedial prefrontal cortex (vmPFC)
Faculty of Law 31
vmPFC supports normative morality & pro-social decision making
vmPFC damage may disrupt emotional valence to moral considerations
Cf. frontotemporal dementia
Discuss role vmPFC in Psychopathy

Discuss in tutorials
neurobiological basis
for reforming/defining
legal insanity
1840’s: Case of Phineas Cage

Damage prefrontal cortex
Faculty of Law 33
(b) Can neuroimaging contribute to evidence?
• Insanity criteria are mental states and behaviour

• Law relies on psychiatry/psychology + self-report
• In most cases little dispute about presence of mental disorder

• Problematic is assessment content & severity of symptoms
• Problematic is measuring cognitive and volitional impairment
• Can neuroscience help to evidence legal insanity?
Faculty of Law 34
• Disorders related to brain structure
• neuro-imaging offers good evidence for traumatic brain injury or
degenerative brain disease causing organic mental disorder
-> epilepsy, frontotemporal dementia, tumors…
-> e.g. post mortem examination

Charles Whitman (1966)
brain tumor impinging on the amygdala
-> remember pedophilia tumor case
Faculty of Law 35
• Other disorders: neuroscience adds little to behavioral evidence
-> e.g. psychotic illnesses, depression, PTSD…
• No clear biological diagnostic techniques (biomarkers)
• G2i problem -> group data -> iin individual cases?
• Can neuroscience provide evidence cognitive or control criteria?
• neuro-imaging must be combined with (neuro)psychological evaluation
Faculty of Law 36
Future neuro-assessment: mind reading?
• “mind reading” = based on brain-derived data (fMRI, EEG) combined
with machine learning algorithms (AI)
• Not literally reading “thoughts”
• Not committed to specific theory of mind (reductionism, EEM…)
• Example: Research Gallant & Nishomoto

gives “proof of principle”
• https://www.youtube.com/watch?v=0o17Zwzam1g
Faculty of Law 37
28-11-2022
Addiction, neuroscience &

criminal responsibility
Dr. Anna Goldberg

a.e.goldberg@vu.nl // a.e.goldberg@rug.nl
Department of Criminology, VU Amsterdam
John is addicted to drugs. He is fully aware of the

negative consequences of addiction, but is unable to
stop using. In the past, he has been aggressive whilst
under influence, and he knows that the drugs have
this effect on him. One evening, he experiences an
intense craving for the substance but doesn’t have
enough money to satisfy his cravings. He decides to
rob a food delivery guy in order to obtain money and
buy drugs. However, the victim fights back and
thinking about his drugs, John stabs the victim.
1
28-11-2022
Some preliminary questions
1. Is he responsible for his crime?

2. Does the insanity defence apply?
3. What if he was intoxicated?
3 Footer text - Faculty or Research Institute name
Bill is also addicted to drugs. After a traumatizing youth, Bill

developed PTSD and uses drugs to self-medicate his symptoms,
which spiralled into compulsive drug use. He has tried to seek
help, but always relapsed. By now, the addiction severely
damaged his prefrontal cortex, making it difficult to focus on
longer-term goals and rewards, causing substance myopia, high
impulsivity and compulsive cravings. One evening, he
experiences an intense craving but doesn’t have enough money
to satisfy these. Unable to oversee the consequences of his
actions properly, and experiencing difficulties to resist the urges,
he robs a food delivery guy in order to obtain money and buy
drugs. However, the victim fights back. Bill cannot think clearly
and stabs the victim.
2
28-11-2022
Some preliminary questions
1. Is he responsible for his crime?
This is the same case as the previous one. What is different now, and
does it matter?
It seems that we need to understand:

2. Which legal questions need to be answered?
3. How can addiction impact these questions?
4. What the role of neuroscientific information is in this case
Outline today
• What is addiction?
• The addiction debate
Break
• The role of prior fault
• Whatever comes up
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28-11-2022
Background on addiction
Let’s talk drugs
Drugs = A drug is any substance (with the exception of food

and water) which, when taken into the body, alters the
body's function either physically and/or psychologically
• Effects of drugs vary greatly based on substance type

• Understanding this helps to understand the process of
addiction
8 Faculty of Law – Department of Criminal Law & Criminology
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28-11-2022
Depressants
Common types
Benzodiazepines (Valium), alcohol, opioids
Function
Reduce stress/anxiety/insomnia, relieve inhibitions
Effects
Drowsiness, relaxation
Adverse effects
Respiratory depression, slurred speech,
cognitive/memory impairment, coma, death
10
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Depressants
Mechanism:
Facilitate binding of GABA
(gamma-aminobutyric acid, an
inhibitory NT)
An increase of GABA results in

more brain inhibition due to a
reduction in brain signals
→ Decreased activity in CNS

11
Stimulants
Common types
Amphetamines, caffeine, cocaine, Ritalin (methylphenidate)
Function
Wakefulness, locomotion, decrease appetite, treat ADHD
Effects
Increase endurance, arousal, heart rate, blood pressure,
feelings of euphoria
Adverse effects
Hypotension, seizures, death (mostly indirect)
12
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Stimulants
Mechanism:
Enhanced release of dopamine,
norepinephrine and serotonin
+
Reuptake inhibition
= higher concentration of NTs
13
How does that lead to addiction?
Experimental Social Instrumental Compulsive
14
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Process of addiction
Chemical effects of substance use contribute to becoming

addicted
• Release of dopamine = feelings of pleasure
• Excessive release? Dulling of natural reward & pleasure
responses
• Leads to blunting of the PFC
• Causing salience and thereby preoccupation
• Impaired response inhibition
• Together causing prioritisation of the substance
• Not only short-term rush, but also conditioning
15
Understanding these neural and behavioural

consequences is crucial for discussing
addiction in the law
16
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Addiction & impairments
• Impaired natural reward system

• Problems long-term planning
• Dysfunctional response inhibition
• Excessive salience
• Association of cues/environments with substance use,
triggering cravings
• …and others
17
• What cannot be overlooked: the role of motivation and

choice
18
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• What cannot be overlooked: the role of motivation and

choice
• Addiction has high rates of natural recovery
• Correlates of quitting are systemic (e.g. losing or getting jobs,
marriage, children, other major life events)
• Psychopharmacological treatment is not effective
• Brains change continuously, that does not make them diseased
• Cravings may be strong, but does that render behaviour
uncontrollable?
19
• The contrast between neuroscientific perspectives and the

role of motivation & choice: the addiction debate
The Brain Disease Model The Choice Model
• Strong neuroscientific component • Strong socioenvironmental component
• Focus on loss of control and • Focusses on rationality and (free)
chronicity choice
• “Virtually uncontrollable compulsive drug • “Individuals caught in a destructive pattern of
craving, seeking and use that interferes behavior who retain the capacity to improve
with, if not destroys, an individual's their lot, and will do so as a function of
functioning in the family and in society” changes in their options and/or how they
(Leshner, 1997) frame their choices” (Heyman, 2009)
20
20
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Addiction debate
• What are the consequences of either view?
• Blame (towards being addicted)

• Sense of self and autonomy
• Treatment
• Criminal responsibility?
• Why (or how) would the two models result in different

perspectives towards responsibility?
21
Addiction debate
Legal perspective based on the brain disease model:

The assumption that because the individual is addicted, and
did not chose to become addicted, he is not accountable for
(criminal) behaviour.
Versus based on the choice model:

The assumption because the individual is free to chose (to
continue their) addiction, he is accountable for (criminal)
behaviour.
22
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This is wrong
23
Psycho-legal error
24
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Addiction & psycholegal error
Psycho-legal error:
Causation does not excuse
• Isn’t all our behaviour caused by something?
• Why would those causes be excusing?
• Others with the same ‘cause’ do not commit offences
• Hence: there is another step between ‘cause’ and

‘(criminal) behavioural’
25
Addiction & psycholegal error
The law not interested in what caused the behaviour but rather
the capacity one has (or does not have) to be responsible
• Side note: this is also more informative regarding recidivism and treatment
• Law punishes behaviour, not characters or state of minds
Finding the cause is only a side matter: what matters most is how
you behave because of it
• Hence: first establish capacities
• If absent: address the responsibility for those absent capacities
• Of course, the cause (in this case addiction) is still informative!
26
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Addiction debate
• Concluding: the cause (brain vs choice) is not important, but

capacities are
• How is the addiction debate then still legally relevant?
• Disagreement between the models re: capacities. They are
impaired… but:
• Which capacities are impaired most?
• And to what extent?
• And are these legally relevant?
• In general, which capacities are required to be held criminally
responsible?
27
Which capacities are required to be held

criminally responsible, and are these
impaired or absent due to addiction?
28
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How are things going so far?
29
Break
30
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Prior fault
• Prior fault, actio libera in causa, culpa in causa

• Having fault in creating the circumstances of your defence
• Applicable to all sorts of defences, e.g. self-defence,
duress
• In the case of addiction: insanity/diminished responsibility,
sentencing
• Even if these defences/mitigations would apply (do they?),
could prior fault negate the applicability?
31
Prior fault
• For intoxication, prior fault rules are uncontroversial

• Prior fault prevents intoxication becoming a free pass
• Now consider the following scenarios:
• A mental disorder (e.g. schizophrenia) causing an individual to
self-medicate with drugs (second case example)
• Drug use causing an unexpected/unprecedented psychosis
• Addiction preceding/causing the intoxication
• Should prior fault still apply?
32
16
28-11-2022
Prior fault
• A closer look at prior fault requirements

• NL: culpa in causa seems to lack a clear legal framework
• “culpable prior conduct”
• Culpa in causa is used as a ‘quick fix’ for all cases relating
to substance use/intoxication
• All examples on the last slide are likely treated the same
• Sometimes a reference to ‘foreseeability’ as a
• What does that mean?
• Concrete or abstract?
• A sole cognitive requirement?
33
“The defendant can be considered to not be in a state

of ‘brain intoxication’ prior to the consumption of
alcohol, and thus be capable to resist the temptation
of starting to drink, although less so than an average
person. Given his long experience with relapsing, he
had considerable knowledge of the effects that alcohol
had on him.”
(ECLI:NL:PHR:2012:BX0799)
34
17
28-11-2022
Prior fault & addiction
• A mistake often found: confusing responsibility for

addiction-related behaviour with addiction itself
1. Being blamed for behaviour as a 2. Being blamed for an

consequence of addiction addiction
• Defendant may be blamed for failure to • I.e. the state of being
prevent these circumstances addicted, irrespective of
• Presence of addiction may complicate the specific culpable conduct
assessment of prior fault rules • No culpable behaviour
35
“In the end, the defendant is responsible himself for

the origination and continuation of his addiction
behaviour. Thus, he can be considered blameworthy,
although the offence can be only be partially
accounted to him.”
(ECLI:NL:GHSHE:2016:704)
36
18
28-11-2022
Prior fault
• Why is this problematic?

• Lebensführungsschuld: general lifestyle culpability
• Addiction itself becomes criminalized
• It may feel like we ought to hold addicts responsible for initiating and
continuing their addiction…
• (…and emphasizing responsibility may be necessary for successful
treatment…)
• …but for the law, there needs to at least be culpable behaviour that
can be connected to the offence at hand.
37
What now?
• So, what would be a solution?

• Viewing addiction based on capacities rather than a one-
dimensional construct
• Addressing individual differences
• Allowing a more personalized assessment of criminal
responsibility (e.g. insanity, prior fault)
• More nuanced approach towards the ‘grey areas’ in the law
• Working with more clearly defined legal frameworks
38
19
28-11-2022
Back to the neurosciences
39
Addiction & neuroscience
• To create a birds-eye perspective on the topic,

summarize, and wrap up
• Three different perspectives
1. Micro (individual)
2. Meso (group/collective)
3. Macro (structural)
40
20
28-11-2022
Addiction & neuroscience: micro
• Contribution of neuroscientific methods in assessing an

individual’s liability
• Assessment of defendant’s capacities

• Cognitive & volitional
• Relating these capacities to legal requirements of e.g. intent,
insanity, prior fault in the defendant’s case
41
Addiction & neuroscience: meso
• The influence of neuroscientific insights on the

understanding of a concept (such as a disorder) and
capacities of a group
• How does addiction affect (criminal) behaviour?

• How are addicted defendants perceived by the law?
• How do different perspectives towards addiction affect legal
outcomes?
42
21
28-11-2022
Addiction & neuroscience: macro
• Addressing changes to the legal framework as we know it
• Discussing the current legal frameworks applicable in addiction

cases
• Do they adequately accommodate the knowledge we have of
addiction?
• Developing more/better policies towards sentences that tailor
to addicted offenders
43
FACULTY OF LAW
Thank you for your attention!

Any remaining questions?
Best of luck with the course & feel free to contact me:
a.e.goldberg@vu.nl // a.e.goldberg@rug.nl
44
22
Faculty of Law
Outline
1. Introduction
2. Aggression, Crime and Neuroscience
3. Brain Stimulation and Aggression
4. Brain Stimulation in Criminal Law and Human
Dignity
5. Neuroethical Issues and Compensating Safeguards
6. Conclusions
Faculty of Law
1. Introduction
• Crime is of all ages, but culture (e.g. risk society) and

technologies (e.g. pharmacology / surveillance) and legal
systems change
• Growing role for neuroscience in law

– Explain
– Predict
– Rehabilitate
Faculty of Law
1. Introduction
• New research suggests direct brain stimulation may

reduce aggressive behaviour by intervening in the brain’s
electric activity
• But can such an intervention/treatment be directly

transposed to the criminal justice system?
• Interdisciplinary – law, science, ethics, philosophy
Faculty of Law
1. Introduction
• Is this not a type of mind-control?

• Are we not reducing people to puppets?
• These concerns need to be addressed before a brain

stimulation intervention gains popularity/traction: e.g.
BCI’s
Faculty of Law
1. Introduction
• A Clockwork Orange
• Alex is undergoing treatment after
committing numerous violent offences:
• https://www.youtube.com/watch?v=4woPg0
-xyAA
Faculty of Law
1. Introduction
• Did he maybe deserve this?
• Effectiveness? What is being changed in him?
• Bodily autonomy? Human dignity?
Don’t worry, he’ll be healthier soon.
Faculty of Law
1. Introduction
• Criminal justice settings clearly differ from voluntary

clinical ones: consent?
• Choose this over a prison sentence? Valid consent?

How about e.g. brain surgery?
• But first: the relationship between

aggression, crime and neuroscience
Faculty of Law
2. Aggression, crime and neuroscience
Faculty of Law
What is aggression?
• Aggression: behaviour directed toward another individual
with the proximate intent to cause harm
• Narrow interpretation of aggression
When is aggression a ‘problem’?

• Pathological aggression involves a control /
volitional problem or in other words:
a capacity problem.
Faculty of Law
• Capacity = e.g. rationality, reason-responsiveness, self-

control
• Virtue = people’s values, moral character about what is right

or wrong
• ‘Mad’ versus ‘bad’
• This split between capacity and virtue is important for the

ethical considerations later.
Faculty of Law
• Consequences of a capacity impairment?
– Status: there is an ostensible divide between those who are

’normal’ and those who are ‘abnormal’ – alterity
– Treatment justification: restore one’s capacity to act in line
with their desires
Hereby intervention in the capacity-impaired is more readily

justified
How can neuroscience help?
Faculty of Law
• Diagnosis: neuroscience can identify brain areas thought to be

involved in pathological aggression
• Primary focus on frontal brain areas
• Not only identify but also influence/intervene in those areas
Faculty of Law
• But we must be careful when considering aggression as a

brain phenomenon.
• A risk of neuroreductionism - reducing aggressive behaviour

to a brain phenomenon (pathology)
• Those who are aggressive are fundamentally biologically

(neurologically) different – alterity
Faculty of Law
• The target group of the intervention?
– Pathological form of aggression (capacity impaired)

– High dangerousness/recidivism
– At least diminished- or not responsible for their offence
– An offence qualifying for a prison sentence
– Aggression played a crucial role in the offence
Faculty of Law
Faculty of Law
• How does the brain function (in a tiny nutshell)?
• Billions of interconnected neurons

• Communicating via electrical signals: action
potentials – remember Korponay & Koenigs?
• “The informational currency of neurons is electricity”

– pp 12.
Faculty of Law
• How about intervening in that ‘exchange’?
• Brain stimulation methods can directly influence (electrical)

neural activity: increase / decrease the firing of neurons
• How does that change behaviour?
• Underlying premise: specific brain regions (groups of neurons)

are involved in specific brain functions.
So: change specific brain activity -> change function ->
change behaviour
Faculty of Law
• Drugs: influence e.g. hormones in the body /

neurotransmitters in the brain
• 21st century: fix the problem at the source
• Different types of brain stimulation

– Invasive brain stimulation
• Deep Brain Stimulation
– Non-invasive brain stimulation (NIBS)
• Transcranial Magnetic Stimulation (TMS)
• Transcranial Direct Current Stimulation (tDCS)
Faculty of Law
Deep brain stimulation (DBS)

• Electrodes deep into the brain
• Think of e.g. Parkinson’s disease, but also Obsessive
Compulsive Disorder (OCD), depression and even treatment-
resistant aggression
Faculty of Law
• Non-invasive brain stimulation (NIBS)
• Electric and magnetic forms.
• Transcranial direct
current stimulation
• Transcranial Magnetic
Stimulation
Also (ultra) sound-wave brain

stimulation.
Faculty of Law
• Qualities of NIBS:
– No surgery needed (non-invasive)
– Stimulation effects are mild
– Does not travel deep into the brain
– If stimulation is not repeated, the changes dissipate over time
– Localization can be difficult
Side effects:
– Itchiness of the scalp and (in some people) minor headaches
– Extremely rarely: seizures
• Challenges: e.g. longevity, intensity changes (direction of)

effects
Faculty of Law
Measuring and reducing aggression!
• An experiment that elicits aggression – let participants ‘punish’

each other – loud sound or electric shock
• Add NIBS into the mix: some people get brain stimulation and
others get ‘pretend’-stimulation
Faculty of Law
• NIBS on the left-sided frontal brain regions ->

higher aggression
• Right-sided frontal stimulation -> lower aggression
Faculty of Law
Conceptualizing a brain stimulation treatment
• Right sided stimulation = lower aggression
• But we propose that such stimulation treatment becomes a

combination therapy and so includes both brain stimulation
and therapy
– Better treatment outcomes
– The change is in line with the patient’s expectations / continuity of the
individual
Faculty of Law
Interim
• So, aggression may not be reducable

to the brain
• But it can be modified via the brain
• How do we move forward with the law

and ethics?
Faculty of Law
Break
Faculty of Law
4. Brain Stimulation in Criminal Law
and Human Dignity
Faculty of Law
and Human Dignity
• Existing Human Rights discussions ECHR: e.g. Art 3
(degrading treatment), 8 (private life), art 9
(freedom of thought), art 10 (freedom of
expression)
• Positive obligation under art 3 to offer rehabilitation

options for life in prison
Faculty of Law
and Human Dignity
• Punishment aims to intentionally induce

suffering/harm
• Brain stimulation is better suited as a measure than

a punishment – no harm as the goal
Faculty of Law
and Human Dignity
• Relevant public policy/criminological context:

• Culture of control and risk society
• Preoccupation with risk and fear of crime
• Such societal desire for safety may influence public

policy – sex offenders in the US, but also addiction:
crack mom, ‘getting clean’
Faculty of Law
4. Brain Stimulation in Criminal Law and
Human Dignity
• Human dignity – relatively vague and indeterminate term
• UDHR: Art 1. All human beings are born free and equal in dignity
and rights. They are endowed with reason and conscience and
should act towards one another in a spirit of brotherhood.
• German constitutional court has a concrete

approach:
– 1. People must be treated as ends instead of means
– 2. People must be respected in their autonomy to set their own
goals / choose their own values and beliefs – be who you want to
be
Faculty of Law
and Human Dignity
Prong 1: Treating people as ‘ends’.
• Not an all-or-nothing phenomenon – instead: a balancing act.
• Insight in this balancing act: a comparison with other
treatments such as treatment for drug addicts.
• Override individual autonomy to restore the capacity to act

freely / in their own interest
• NIBS may restore capacity / autonomy of the individual to

control aggressive behaviour
Faculty of Law
and Human Dignity
Prong 1: Treating people as ‘ends’.
• The outcome:
• NIBS aims to restore capacity / autonomy of the

individual to make them less aggressive (other example:
addicts)
• Is an aim sufficient? How are we sure it is only capacity

we are changing? Conceptually (Angry Jones) and
scientifically?
Faculty of Law
and Human Dignity
Prong 2: Choosing your own values
• Embed non-invasive brain stimulation in a therapeutic context
• Combined effort of therapy + brain stimulation induces a

certain ‘ownness’
• Engage with ‘rationality’ and ‘the better nature’ of the

individual – acknowledging their individuality
Faculty of Law
5. Neuroethical Issues and
Compensating Safeguards
Faculty of Law
• Two main ethical concerns:
• Authenticity
– Being true to yourself
– Recognised in a forensic setting under patients
• Objectification / alterity
– Reducing a group of people to less-than-us, thereby
threatening their position in society.
– Extreme example: Jews in WW2
– Recent (less extreme example): US sex offenders
Faculty of Law
Authenticity
• Can an externally induced change be authentic?
• A therapeutic context leads to ‘ownness’

• + Use the changed trait and taking responsibility for
it can make it authentic
Faculty of Law
Objectification
• This risk of objectification + the current cultural/criminological
climate = dangerous
• Biological / neurological defects that need rewiring, ‘violent

brains’.
• Threatens the position of criminals in society: e.g. sex

offenders
• Diminish this via dialogue, via a humane treatment.
Faculty of Law
Finding a balance
• Legally/human dignity: seemingly depends on the

conditions
• Ethically: is the objectification too severe?
• This objectification may in extension also trigger legal /

human dignity conflict
Faculty of Law
Finding a balance
• What conditions seem important for introducing a

NIBS measure?
– A (clear) predominant capacity focus – dementia / tumours
/ brain damage
– Technological developments (localization/accuracy of brain
stimulation)
– Cultural shift toward holistic perspective on crime
Faculty of Law
Finding a balance
• Take into account authenticity via dialogue – acknowledging

the individual – concurrent with NIBS.
• However, what about imposed anti-libidinal drugs?

• Seems more ‘diffuse’ than NIBS concurrent with therapy, so
anti-libidinal drugs seem more problematic from the
authenticity perspective.
Faculty of Law
6. Conclusions
• Neuroscientific intervention brings unique opportunities but

also neuro-objectification risks – especially in the current
cultural context
• While there is justified enthusiasm for neuro-methods, we

have to be mindful of the limitations and risks
Faculty of Law
Thank you for your attention!
r.knehans@maastrichtuniversity.nl
Faculty of Law
Neurobased Lie Detection & Human Rights
Week # 7

I. Forms of Neurobased Lie Detection (NBLD)
-> fMRI lie detection
-> Guilty Knowledge Test (P-300)
II. Human Right to Privacy

-> Fourth Amendment USA
-> Article 8 ECHR
III. Human Right Not to Incriminate oneself

→ Fifth Amendment USA
→ Article 6 ECHR
From polygraph… …to neurobased lie detection
fMRI based lie detection
• Subjects give simple, binary answers
• measures brain activity by observing changes blood flow (BOLD)
• BOLD measurement used for inferring lying/truth telling
• First wave of research = group studies
→ theoretical purpose (e.g. Spence, Farah, Ganis…)
→ areas of brain more correlated with lying than truth
telling: prefrontal & anterior cingulate cortices…..
……BUT
-> many different areas are implicated
-> deception areas also related to other cognitive/emotional tasks
-> some lying subjects show no activation in areas & vice versa
Faculty of Law 4
• Second wave of studies: research on particular subjects
• Focus on overall accuracy + measuring false negatives & positives
• Some studies seem impressive --> Kozel et al.
-> mock crime experiments
• BUT…
• Countermeasures –> may reduce accuracy of fMRI
• not all “lying” individuals have same pattern of neural activity.
• Lie or instructed falsehood?
• Ecological and external validity?
• Legal admissibility? Frye test & Daubert test
• Relevance of United States v. Semrau? See article Shen & Jones
DISCUSS THIS IN TUTORIALS
Faculty of Law 5
Guilty Knowledge Test (GKT): P-300
• Concealed information test (CIT) - “brain fingerprinting”
• No direct (BOLD) measurement of lying or telling truth
• Measuring ‘brain-activity” responding to various stimuli
• D. is presented with target items (probes) and irrelevants
→Probe = perpetrator knowledge, e.g. murder weapon, crime scene…
• Probes ‘trigger’ event-related potential -> P-300 brain wave
-> occurs automatically 300-800 milliseconds after observing stimulus
• Studies consider CIT a valid and accurate paradigm
• Some studies show (mixed) accuracy 50 > 100 %
-> subject must attentively observe the stimuli
-> refrain from countermeasures
Faculty of Law 6
NBLD & Human Rights
Right to Privacy - Fourth Amendment (USA)
Protects all citizens – suspects & witnesses

Strongly connected with “human dignity”
Faculty of Law 7
Fourth Amendment
• Prohibits unreasonable searches and seizures
-> has a search or seizure occurred?
-> if so, was it reasonable?
• Search = when government’s attempt at information gathering
physically intrudes on a constitutionally protected area (persons,
houses, papers,…) or implicates a suspect’s “reasonable
expectation of privacy”
• Seizure = when government agent either (1) intentionally

physically touches a suspect or (2) engages in a show of authority
followed by the suspect’s submission (e.g. mouth swap)
Faculty of Law 8
Fourth Amendment
• Search & Seizure must be reasonable
• 2nd clause of 4th Amendment -> reasonable when probable cause
and government obtains a warrant, or warrant exception applies
• Probable cause + warrant: fair probability that contraband or

evidence of a crime will be found in a particular place -> warrant
• Warrant exceptions -> warrants are unnecessary when there are

‘exigent circumstances’, automobiles are involved, suspects
arrested outside their homes, special needs (school drug testing.
airport security).....
Faculty of Law 9
Fourth Amendment
Inspiration from Schmerber-case 1966 (compelled blood test)
-> probable cause
-> due to time constraints no warrant needed
-> test was also reasonable (minimal risk, pain…)
Reference to human dignity: “It bears repeating…that we reach this
judgment only on the facts of the present record. The integrity of an
individual’s person is a cherished value of our society. That we today hold that
the Constitution does not forbid the States minor intrusions into an
individual’s body under stringently limited conditions in no way indicates that
it permits more substantial intrusions, or intrusions under other conditions.”
→ balancing exercise human dignity vs determining guilt or innocence

e.g. ‘compelled surgery’ is not the same as ‘swabbing suspect’s mouth’
Faculty of Law 10
Fourth Amendment & coerced NBLD
• Preliminary question: can NBLD be compelled at all since results
depend on voluntary compliance (no countermeasures)?
-> compulsion doesn’t mean only physical compulsion
-> compulsion may also arise from threats of criminal contempt
charges for non-compliance (cf. compelled handwriting/voice examples)
• NBLD = “search” under reasonable expectation of privacy

• Reasonable expectations of privacy apply to details about brain
activity as much (if not more) than details about blood, urine,
homes and conversations
• NBLD = “seizure” when D. must sit or be held in contempt
-> probable cause + warrant are required (or exception to this rule)
Faculty of Law 11
Fourth Amendment & coerced NBLD
• Schmerber applied to coerced NBLD?
-> probable cause -> NBLD test will reveal incriminating evidence
-> warrant seems needed
-> however: NBLD appears “physical” less invasive than blood tests
-> unreasonable only in unsafe conditions (e.g. metal objects in body)
• Is this enough protection? Is Schmerber for NBLD right approach?

• Is compelled NBLD only a physical intervention?
• Does privacy not extend beyond the physical into the mental realm?
(esp. in light of human dignity) See article by Kilbride & Iuliano
-> Again the (philosophical) question: what is status of “mental”?

Faculty of Law 12
Article 8 ECHR – Right to Privacy
1. Everyone has the right to respect for his private and family life, his
home and his correspondence.
2. There shall be no interference by a public authority with the exercise of
this right except such as is in accordance with the law and is necessary in a
democratic society in the interests of national security, public safety or
the economic well-being of the country, for the prevention of disorder or
crime, for the protection of health or morals, or for the protection of the
rights and freedoms of others.
Can NBLD infringement of privacy be justified?
Can we make comparison with case law DNA and fingerprinting?
Discuss this in tutorials: see article Lighthart, Douglas et al.
Faculty of Law 13
Right not to incriminate oneself
Fifth Amendment
Faculty of Law 14
5th Amendment protects suspects, not witnesses
Protection against unauthorized investigations
“[n]o person… shall be compelled in any criminal case to be a witness against
himself.”
Fifth Amendment
• For constitutional protection evidence must be
(1) incriminating -> yes: NBLD can be used in criminal prosecution
(2) compelled -> yes: forcing defendant to NBLD is compulsion
(3) testimonial -> is brain-evidence physical or testimonial?
• Schmerber case -> bloodtest = physical = no violation
• No privilege for compelled evidence from suspect’s body
(hair, fingerprints, handwriting exemplars…)
• BOLD/brainwaves = physical or testimonial evidence?
• Polygraph: what is status of physiological responses?
• Schmerber suggests : “lie detector tests…may be actually directed to
eliciting responses which are essentially testimonial”
Faculty of Law 16
Fifth Amendment
• Does Schmerber give enough guidance?
• Testimonial evidence requires communicative act of suspect
-> submitting to blood test = non-communicative act
• Polygraph = privileged -> results can only be derived through

communicative act → suspect is required to respond even though
non-voluntary physiological evidence is used to verify truthfulness
• fMRI lie detection would seem to fall under protection

• But CIT/GKT = no communicative act -> no protection
-> does this hybrid ‘solution’ make sense?
Faculty of Law 17
Fifth Amendment
• Greely & Wagner: “ fMRI-scan is nothing more than a computer

record of radio waves emitted by molecules in the brain. It does
not seem like ‘testimony’” → all NBLD results = physical
• Even when defendant is compelled to respond, results of NBLD is

not testimonial (response is not used for its testimonial content)
• Do you agree with this exclusive physical “solution”?
• Are there arguments for NLBD to be considered testimonial?
• Discuss this in tutorial (presentation)
Faculty of Law 18
Right not to incriminate oneself
Article 6 ECHR
• Article 6 ECHR = general right fair trial
• Part of fair trial is right not to incriminate oneself (nemo tenetur)
• Main legal grounds/rationales?
1. Protection against unreliable evidence
-> compelled active contribution influences truth finding
2. Prohibition improper compulsion (subsidiarity & proportionality)
-> e.g. threat of punishment, torture…
3. Guarantees procedural autonomy of suspect
-> suspect is equal party, not only an object of investigation
Faculty of Law 19
ECtHR case law on right against self-incrimination
• Saunders/UK 1996: restricted right against self-incrimination
-> rights protects only will-dependent material
-> compulsory powers may be used but only for incriminating
material of which the existence is will-independent
• Focus on nature of the acquired material
→ Will-dependent = primarily spoken word
→ Will-independent = blood, DNA, fingerprints, documents

falls beyond scope of the right
-> nemo tenetur seems restricted to right to remain silent
Faculty of Law 20
ECtHR case law on right against self-incrimination
• Case law becomes more nuanced…
• Funke/France + JB/Switzerland (2001)
• Means-based approach becomes more important
-> still violation even for will-independent material (documents) if

cooperation is needed to find the ‘existence’ of the material
e.g. fishing expeditions -> cooperation suspect needed
Faculty of Law 21
How to apply art. 6 ECHR on NBLD?
• Nature of material approach:
-> fMRI based lie detection = will-dependent information
-> CIT: suspect can’t control P-300 activity -> will-independent
• Means approach:
-> does the NBLD require cooperation of suspect?
-> fMRI: cooperation (responding) is required
-> for GKT? Different views possible?
P-300 is in itself involuntary response
<-> can’t we say suspect is still required to cooperate?
attentively observing stimuli , refraining from countermeasures
Faculty of Law 22
How to apply art. 6 ECHR on NBLD?
• Final issue: should we distinguish biological & cognitive aspect?
• Again importance of how to look at mind/mental?
• brain waves are indeed will-independent, just like blood
• But cognitive trace? relates to memory content
-> comparable with spoken word or not?
-> is this not will-dependent like answer to question:
“do you recognize this object?”
• Knowledge can normally only be obtained when S. speaks
• When P-300 is introduced the S. has no choice anymore about
disclosing information -> bypassing procedural autonomy
-> bypassing right to remain silent?
Faculty of Law 23

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The relevance of neurosciences for law

An introduction to the course

Prof. dr. David Roef

II. Relevance of neuroscience for law

III. Conditions of criminal responsibility

• Supreme Court Canada 1987

• Jury acquitted Parks

Roper vs Simmons 2005

Miller v. Alabama 2012

neuroscientific evidence that adolescent brains,

We also have to distinguish science from scient-ism

Two main forms of relevance

b. Internal relevance: how can neuroscience be used within the law?

Problem of mental causation and agency (session #3)

= problem of causal efficacy of my conscious will

Problem of neuro-reductionism: are we nothing but our brains?

To cognitive neuroscientists such a breakthrough

But not everyone shares this “neuroreductionist”

Does neuro-reductionism matter for the law?

- Main problem: how to implement science in the law?

Questions for the tutorial

→ Are there justifications? defences negating wrongdoing of the act

Example: Art. 302 Dutch Criminal Code:

Questions re actus reus:

Questions re mens rea:

Let’s illustrate this with

2. Intentional Manslaughter (doodslag) – art. 287: he who

3. Negligent Manslaughter (dood door schuld) – art. 307

→ Does this negate voluntary act requirement (actus reus)?

• Answer will depend on two main issues

Murder (moord) – art. 289 DCC:

Example: Sietske H. infanticide case (art. 291 DCC)

• Do not confuse intent with blameworthiness

= all or nothing (only diminished responsibility for murder)

Interesting: NO volitional impairment

Which impairments of which mental capacities

...neuroscience may help to make a clearer

art. 39 DCC: A person who commits an offence due to a mental

• Psychologist: “dementia is in an early phase and behavior of

The problem of free will, determinism and

I. What are two external neuro-challenges for responsibility?

II. Problem of free will & determinism

III. Are criminal responsibility & determinism compatible?

• we attribute responsibility to each other

• Trees and birds don’t have responsibility…

No act without an agent

Free will and human agency

Both are neuro-challenged

- Problem B = conscious will, mental causation & agency

They are both about control over

But they are different though

causal = everything has a cause; nothing is uncaused/self-caused

What is indeterminism? Belief that no event is certain and entire outcome of

• Two main conditions for free will

b. ultimate source principle: it’s up to me

! …this causal power is challenged by problem B !

• brain activity (RP) precedes conscious decision to move